Smt. Gowramma Vs Syed Fakruddin

M/S UNITED INDIA INSURANCE CO. LTD. REGIONAL OFFICE MOTOR THIRD PARTY CLAIMS HUB 5^TH AND 6^TH FLOOR, KRISHI BHAVAN HUDSON CIRCLE BENGALURU – 560 001 BY ITS MANAGER … RESPONDENTS

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(BY SRI.P.B.RAJU, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH V/C DTD:23.09.2024)

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MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 12.08.2020 PASSED IN MVC NO.1493/2019 ON THE FILE OF THE VII ADDITIONAL SMALL CAUSES JUDGE AND ACMM, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 6221/2021

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BETWEEN:

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SMT LAKSHMI L W/O KARTHIK K AGED ABOUT 34 YEARS

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KUM.MUNESHWARI D/O KARTHIK K AGED ABOUT 9 YEARS MINOR

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REP. BY NATURAL GUARDIAN APPELLANT NO.1

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SRI KANDASWAMY V S/O VELUSWAMY AGED ABOUT 67 YEARS

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ALL ARE R/AT HEROHALLI NEAR GOVT. SCHOOL

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NC: 2025:KHC:2067-DB MFA No.2307/2022 C/W MFA No.6221/2021

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VISHVANEEDAM POST

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BENGALURU – 91 … APPELLANTS

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(BY SRI.Y.N.PAVAN KUMAR Y N, ADVOCATE)

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AND:

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SYED FAKRUDDIN S/O SYED IMAM SAB MAJOR IN AGE, R/AT 1^ST MAIN, SRIRAMNAGAR BADAVANE SHIMOGA – 577 201

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M/S UNITED INDIA INSURANCE CO. LTD. REGIONAL OFFICE MOTOR THIRD PARTY CLAIMS HUB 5^TH AND 6^TH FLOOR, KRISHI BHAVAN HUDSON CIRCLE BENGALURU – 560 001

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BY ITS MANAGER … RESPONDENTS

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(BY SRI.P.B.RAJU, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH V/C DTD:31.05.2024)

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MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 12.08.2020 PASSED IN MVC NO.1638/2019 ON THE FILE OF THE VII ADDITIONAL SMALL CAUSE JUDGE, ACMM, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR ADMISSIONS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Though the matters are listed for admission, with consent

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of both Counsel, the matters are taken up for disposal.

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These appeals arise out of common award in

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MVC Nos.1493/2019 & 1638/2019 passed by VII Additional Small Causes Judge, ACMM, MACT-3, Bengaluru.

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Particulars of claim petition, corresponding appeals

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and appellant are set out in the table below:

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Sl.	M.F.A.No.	M.V.C.No.	Appellant
No.
1.	2307/2022	1493/2019	Gowramma and others.
2.	6221/2021	1638/2019	Lakshmi L and others

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Claimants in MVC No.1493/2019 are the wife, daughter and parents of the deceased Veeresh. Claimants in MVC No.1638/2019 are the wife, daughter and father of the deceased Karthik. Respondent Nos.1 and 2 in both the cases are the registered owner and insurer of Canter lorry bearing registration No.KA-13-B-0476 respectively. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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On 14.02.2019 at about 10:00 p.m. when Veeresh

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and Karthik were proceeding on motorcycle bearing registration No.K.A-02-HA-7894 near Jattipalya Arch, Channenahalli, Magadi Main Road, Canter lorry bearing registration No.KA-13B-0476 hit the said motorcycle. In the accident both Veeresh

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and Karthik suffered grievous injuries and both of them succumbed to the injuries in the hospital.

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Claimants filed MVC No.1493/2019 & 1638/2019 contending that Veeresh and Karthik were the breadwinners of their respective families, accident and their death occurred due to actionable negligence on the part of driver of Canter lorry bearing registration No.KA-13-B-0476. Due to the accident, both the families have suffered pecuniary and non pecuniary damages. In MVC No.1493/2019 claimants sought compensation of Rs.40 lakhs. In MVC No.1638/2019 claimants claimed compensation of Rs.30 lakhs from the respondents.

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Respondent No.1 had appeared before the Tribunal, but did not file written statement. Respondent No.2 filed written statement denying actionable negligence on the part of driver of Canter lorry, age, occupation, income of the deceased and their liability to pay the compensation. It was further contended that the accident occurred solely due to the negligence on the part of rider of motorcycle.

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The Tribunal consolidated both the matters and recorded common evidence. On behalf of claimants, claimant No.1 in MVC No.1493/2019 was examined as PW.1, claimant

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No.1 in MVC No.1638/2019 was examined as PW.2 and Exs.P1

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to P22 were marked. Respondents did not lead any evidence.

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The Tribunal on hearing both the parties by the impugned judgment and award held that accident and consequential deaths occurred due to actionable negligence on the part of driver of Canter of lorry bearing registration No.KA13-B-0476. The Tribunal awarded compensation of Rs.20,32,041/- in MVC No.1493/2019 and Rs.20,01,706/- in MVC No.1638/2019. The respondents i.e., owner and insurer of the Canter lorry have not challenged the award of the Tribunal on any grounds. Claimants have challenged the said award in the above appeals questioning adequacy of compensation awarded.

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Sri Y.N Pavan Kumar, learned Counsel for the appellants/claimants in both the appeals reiterating the grounds of the appeals submits that income of the deceased considered by the Tribunal in both cases is on the lower side and compensation awarded on the other heads is also on the lower side. Whereas Sri P.B Raju, learned Counsel for respondent No.2/insurer in both the cases, justifying the impugned award submits that there was no proof of actual

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income of the deceased, therefore, compensation awarded by

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the Tribunal is just and proper one. He submits that compensation awarded on the other heads is also just one.

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Having regard to the submissions of both sides and on examining the materials on record, the questions that arise for consideration of the Court are:

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i. Whether compensation awarded by the Tribunal in MVC No.1493/2019 is just and fair one?

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ii. Whether compensation awarded by the Tribunal in MVC No.1638/2019 is just and fair one?

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Analysis:

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In both these cases though the claimants contended

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that the deceased had income of Rs.20,000/- per month by the masonry work, no evidence was adduced in proof of the same. Therefore, the Tribunal was justified in notionally assessing income. There is no dispute regarding relationship of the claimants with the deceased.

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As per the judgment of Supreme Court in the case

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of Sarla Verma and others vs. Delhi Transport Corporation

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and another¹ , compensation on the head of loss of dependency has to be awarded considering the age of the deceased, applying multiplier stated therein and deducting some amount from the income of the deceased for his personal expenses based on the number of the dependents.

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Similarly on the head of non pecuniary damages, as per the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs . Pranay Sethi and Others² , and Magma General Insurance Company Limited vs. Nanu Ram & Ors³ , spouse, parents and children of the deceased are entitled to compensation for loss of consortium at Rs.40,000/- each with escalation at 10%. Further while assessing income of the deceased depending on his age and employment, future prospects has to be awarded at certain rates as mentioned in the judgment in Pranay Sethi ’ s case referred to supra. On conventional heads of loss of estate and funeral expenses compensation has to be awarded at the rate of Rs.15,000 + Rs.15,000 with escalation at 10%. These cases have to be examined in the light of the aforesaid legal position.

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1 (2009) 6 SCC 121

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2 (2017) 16 SCC 680

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3 (2018) 18 SCC 130

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Reg. Quantum of compensation in MVC No.1493/2019:

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Veeresh who was victim in MVC No.1493/2019 was aged 32 years and the Tribunal considered notional income at Rs.9,000/- per month. Considering the nature of employment of the deceased, prevailing wage rates and cost of living during 2019, notional income of Rs.9,000/- considered by the Tribunal in both the cases is on the lower side. Reasonably that can be assessed at Rs.14,000/- per month. Having regard to the fact that the deceased was self employed and aged 32 years, 40% has to be super added to his income by way of future prospects which comes to (14,000+5,600)=Rs.19,600/-. As the deceased had four dependents, 1/4^th has to be deducted for his personal expenses. Applicable multiplier is 16. Therefore, compensation payable on the head of loss of dependency is Rs.19,600x3/4x12x16 = Rs.28,22,400/-.

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Correctness of medical expenses of Rs.27,641/awarded by the Tribunal is not under challenge. Therefore, just compensation payable for death of Veeresh is as follows:

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Particulars	Amount (Rs.)
Loss of dependency	28,22,400/-
Loss of consortium	1,76,000/-
(44,000x4)
Loss of estate	16,500/-
Funeral expenses and	16,500/-
transportation charges
Medical expenses	27,641/-
Total	30,59,041/-
Awarded by Tribunal	20,32,041
Enhanced compensation	10,27,000/-

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Reg. Quantum of compensation in MVC No.1638/2019:

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In this case, victim Karthik was aged 31 years and was a mason. In the light of the above discussion, his notional income has to be taken at Rs.14,000/- and 40% future prospects has to be awarded (Rs.14,000 + Rs.5,600 = Rs.19,600/-). He had three dependents. Therefore, 1/3^rd has to be deducted towards his personal expenses. Applicable multiplier is 16. Therefore, compensation payable on the head of loss of dependency is (19,600x2/3x12x16) = Rs.25,08,800/. Correctness of medical expenses of Rs.2,38,906/- awarded by

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the Tribunal is not under challenge. Therefore, the same needs to be maintained. Therefore, just compensation payable is as follows:

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Particulars	Amount (Rs.)
Loss of dependency	25,08,800/-
Loss of consortium	1,32,000/-
(44,000x3)
Loss of estate	16,500/-
Funeral expenses and	16,500/-
transportation charges
Medical expenses	2,38,906/-
Total	29,12,706/-
Awarded by Tribunal	20,01,706/-
Enhanced	9,11,000/-
compensation

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Enhanced compensation in the above cases shall carry interest

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at 6% per annum. Both the appeals deserve to be allowed in part. Hence, the following:

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ORDER

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MFA Nos.2307/2022 and 6221/2021 are allowed in part.

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i. In MVC No.1493/2019 the claimants are entitled to

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enhanced compensation of Rs.10,27,000/- with interest thereon at 6% p.a. from the date of petition till realization.

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ii. In MVC No.1638/2019 the claimants are entitled to enhanced compensation of Rs.9,11,000/- with interest thereon at 6% p.a. from the date of petition till realization.

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iii. Respondent No.2 - insurer shall deposit enhanced compensation in both the above case before the Tribunal within four weeks from the date of receipt of copy of this order.

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iv. The order of the Tribunal with regard to

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apportionment of the compensation between the claimants is maintained.

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v. In enhanced compensation the shares of claimant Nos.1,3 and 4 in MVC No.1493/2019 and claimant Nos.1 and 3 in MVC No.1638/2019 respectively shall be digitally released to them on furnishing required documents.

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vi. The shares of minor claimant No.2 in both the cases shall be invested in Fixed Deposit in any Nationalized/Scheduled Bank of the choice of the claimants till they attain majority with liberty to their guardian to draw interest accrued on the same periodically.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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PKN

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List No.: 1 Sl No.: 29

Smt. Gowramma v. Syed Fakruddin

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Smt. Gowramma v. Syed Fakruddin

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