The Manager Magma Hdi General Insurance Company Limited Vs Ruksana and Ors.

THE MANAGER, MAGMA HDI GENERAL INSURANCE COMPANY LIMITED R/O:2ND FLOOR, 36 J C ROAD, NEAR MINARVA CIRCLE, BANGALORE-560 002. KARNATAKA (NOW REPDRESENTED BY AUTHORISED SIGNATORY, RESIDENCY ROAD, BANGALORE)

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(BY SMT.PREETI PATIL MELKUNDI, ADVOCATE)

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AND:

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…APPELLANT

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RUKSANA W/O.LATE DR.IRFAN CHOUDHARI AGE 38 YEARS, OCC:HOUSEHOLD

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IFFAT ANAM CHOUDHARI D/O.LATE DR.IRFAN CHOUDHARI AGE 11 YEARS, OCC :STUDENT

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ARFA NADEEGA CHOUDHARI D/O.LATE DR. IRFAN CHOUDHARI

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HC-KAR

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AGE 07 YEARS, OCC:STUDENT.

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SMT.SHABERA CHOUDHARI D/O.LATE BASIR CHOUDHARI AGE 64 YEARS, OCC:HOUSEHOLD ALL R/O NEAR BILAL MASJID AFZALPUR DIST:KALABURAGI-585 301.

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SRINATH

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S/O SHANKAR SHETAGAR AGE 40 YEARS, OCC:OWNER OF HYUNDAI CRETA CAR BEARING TEMPORARY REGISTRATION NO.T0822TN5991G, ENGINE NO.04FANM636557, CHASSIS NO MALPAB13LNM371627 R/O. H.NO.4601/71, RING ROAD NEAR SHIVA MANDIR, BASAVESHWAR COLONY, KALABURGI-585 101.

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…RESPONDENTS

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(BY SRI.SANJEEV PATIL, ADVOCATE FOR C/R1 TO R4)

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THIS MFA FILED UNDER SECTION 173(1) OF MV ACT, 1988, PRAYING TO CALL FOR THE RECORDS AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED JUDGEMENT AND AWARD DATED 23.04.2024 IN MVC NO. 387/2023 PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND MACT, KALABURAGI.

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THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ AND HON'BLE MRS JUSTICE K S HEMALEKHA

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)

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This appeal is preferred by the Insurance Company, questioning the quantum of compensation awarded by the tribunal, vide its judgment dated 23.04.2024 passed in MVC No.387/2023.

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Heard both sides and perused the material on

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record.

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Claimants before the tribunal are the wife and

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children of deceased Dr.Irfan Choudhari, an Ayurvedic Practitioner, who died in a motor accident on 11.12.2022 at about 10.30 a.m., while he was proceeding on a motorcycle bearing No.KA-23/EJ-9072, towards Gobbur Village to attend the patients.

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It is the case of the claimants that near Atnoor Village on Afzalpur to Kalaburagi Main Road, driver of a Hyundai Creta Car bearing temporary Registration No.T0822TN5991G, Engine No.D4FANM636557, Chassis

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HC-KAR

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No.MALPAB13LNM371627 came from opposite side with

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high speed and in a rash and negligent manner, endangering human life and hit against the motorcycle in which the deceased was proceeding, due to which he fell

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down and succumbed to the injuries sustained by him.

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According to the claimants, the deceased was

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hale and healthy at the time of accident and he was a Ayurvedic Medical Practitioner having his clinic in Afzalpur and earning a sum of Rs.60,000/- per month.

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The tribunal awarded a total compensation of

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Rs.49,15,000/- under the following heads:

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Sl.No.	Heads	Amount
1.	Towards Dependency	Rs.47,25,000=00
2.	Loss of Consortium
	a. Spousal Consortium b. Parental Consortium and children to each (Rs.40,000 x 3)	Rs.40,000=00 Rs.1,20,000=00
3.	Towards loss of Estate & Funeral expenses	Rs.30,000=00
	Total Compensation	Rs.49,15,000=00

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It is strenuously contended by the learned

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counsel for appellant that the respondents/claimants have

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HC-KAR

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utterly failed to prove that the deceased was a Ayurvedic Medical Practitioner and inspite of that the tribunal has taken the income of the deceased at Rs.25,000/- per month, without any basis. He further contended that the amount awarded under other heads are also on the higher side and therefore, the tribunal has erred in awarding an exorbitant compensation of Rs.49,15,000/-.

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The learned counsel appearing for respondents

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on the other hand contended that Ex.P10 is the certificate

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issued by Karnataka Ayurvedic Unani, which clearly depicts that the deceased was a Ayurvedic Medical Practitioner and therefore, the claimants have placed sufficient material on record to establish the profession of the deceased. He further contended that the claimants are none other than the wife, mother and minor children of the deceased and therefore, the compensation awarded is not exorbitant as contended by the learned counsel for appellant. He has therefore sought to dismiss the appeal.

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HC-KAR

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The accident in question, which resulted in the

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death of one Dr.Irfan Choudhari, is not in dispute. Further, it is also not disputed that the vehicle involved in the accident was insured with the appellant herein.

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The Tribunal has awarded a total sum of Rs.1,60,000/- towards loss of consortium. It is relevant to extract paragraph Nos.21, 23 and 24 of the judgment of the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd. vs Nanu Ram Alias Chuhru Ram

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and others reported in 2018 (18) SCC 130, which are as under:

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“21. A Constitution Bench of this Court in Pranay Sethi [(2017) 16 SCC 680] dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, “consortium” is a compendious term which encompasses “spousal consortium”, “parental consortium”, and “filial consortium”. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family.

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HC-KAR

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With respect to a spouse, it would include sexual relations with the deceased spouse.

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21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband- wife which allows compensation to the surviving spouse for loss of “company, society, cooperation, affection, and aid of the other in every conjugal relation”. 21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. 21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

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The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter,

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HC-KAR

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the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.

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The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under “loss of consortium” as laid down in. Pranay Sethi. In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000 each for loss of filial consortium.”

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In light of the above judgment, the amount

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awarded by the tribunal towards loss of consortium is just and proper.

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Though it is the case of the claimant that deceased was having an income of Rs.60,000/- per month, the tribunal after noticing that regarding income there was

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HC-KAR

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no sufficient material placed on record, took the income of the deceased as Rs.25,000/- per month. To substantiate the profession of the deceased, the claimants have got marked Ex.P10 which is the Registration certificate issued by the Registrar, Karnataka Ayurvedic and Unani Practitioners Board, Bengaluru. The Said document shows that the deceased was an Ayurvedic doctor. Hence, the contention of the learned counsel for appellant that no material was placed to show the profession of the deceased cannot be accepted.

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The learned counsel for the respondents has relied on a judgment of this Court rendered in MFA No.2479/2023 and connected matters decided on 05.03.2024 (The Legal Manager, New India Assurance Co. Ltd., vs. Smt. Hemashree N & others), to contend that under similar facts and circumstances wherein, the deceased was possessing degree certificate in BAMS, the Tribunal considered his notional income at Rs.25,000/- per month which was affirmed by this Court, taking into

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HC-KAR

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account the pay scale of the Assistant Professor in AYUSH department which requires minimum qualification of bachelor of degree in Ayush, fixed at Rs.15,600/- – Rs.39,100/-. We are of the considered view that the income arrived at by the Tribunal is not excessive considering the profession of the deceased and in the facts and circumstances of the case.

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The deceased was aged 40 years and therefore,

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the Tribunal added 40% of the actual income towards future prospects and after deducting 1/4^th of the total income, considering the number of dependants and adopting multiplier ‘15’, awarded a total compensation of Rs.47,25,000/- under the head ‘loss of dependency’.

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We are of the considered view that the total compensation awarded by the Tribunal is in accordance with law and does not call for any interference. Accordingly, the appeal is dismissed.

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