Smt Jubeda Ali Vs Mrs Shaleeka M Naik

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.02.2017 PASSED IN MVC NO.72/2016 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE & MEMBER, MACT-IV, D.K.,MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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NC: 2025:KHC:26709 MFA No. 9245 of 2017

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The above appeal is filed by the claimant under Section

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173(1) of the Motor Vehicles Act, 1988¹ challenging the judgment and award dated 08.02.2017 passed in MVC No.72/2016 by the III Addl. District Judge & Member, MACT – IV, D.K., Mangaluru² seeking for enhancement of compensation.

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The Tribunal by its judgment and award dated 08.02.2017 partly allowed the claim petition and awarded a total compensation of `40,000/- together with interest 6% per annum.

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Sri Ravishankar Shastry G., learned counsel appearing for

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the appellant-claimant vehemently contends that the Tribunal has erred in awarding compensation only under conventional heads and not awarding any compensation either towards loss of dependency or loss of estate. It is contended that the

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1 Hereinafter referred as to ‘Act’

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2 Hereinafter referred to as the ‘Tribunal’

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HC-KAR

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deceased was the brother of the claimant’s father and was staying along with the claimant. That the deceased was working as a driver and the income was being contributed by the deceased and hence, even if the claimant is not entitled to loss of dependency, is entitled to compensation towards loss of estate which is required to be calculated by adopting the multiplier method.

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Per contra, Sri K.N.Srinivasa, learned counsel appearing for respondent No.2 – insurer vehemently contends that the deceased himself was depending upon the claimant for his livelihood and that the age of the deceased as mentioned in the claim petition was 76 years. It is further contended that the Tribunal having appreciated the material evidence on record, has recorded a finding that the claimant was taking care of the deceased. He further contends that the Tribunal has rightly awarded compensation towards medical expenses and other conventional heads. Hence, he seeks for dismissal of the above appeal.

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HC-KAR

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The submissions of the learned counsel for both the parties have been considered and the material on record, including the records of the Tribunal have been produced.

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The findings of the Tribunal on negligence and on liability are not under challenge and have attained finality. Hence, the question that is required to be considered is as to ‘ whether the Tribunal erred in not awarding compensation towards loss of estate by adopting the multiplier method?’

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In the claim petition, it is averred at column No.3 that the deceased was aged 76 years (date of birth 01.09.1939). It is also averred that the deceased was working as a driver and earning monthly salary of 10,000/-. However, in the averments in column No.22 of the claim petition, it is stated that the deceased was aged 68 years and working as a driver and earning 10,000/- per month. It is further averred that the claimant was depending upon the income of the deceased. The claimant examined herself as PW.1 and has reiterated the averments made in the claim petition. In the cross examination, PW.1 has deposed that her parents are deceased and that the deceased not having any other family members,

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HC-KAR

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was living together with the claimant. Claimant has produced Aadhar card of the deceased (Ex.P14) which discloses the date of birth of the deceased as 01.01.1946. It is forthcoming that the accident occurred on 29.08.2015, whereas the deceased died on 15.10.2015. The Tribunal noticing the statement given by the claimant to the police (Ex.P20) has recorded a finding that after the accident, the deceased had taken treatment in the hospital and was looked after by the claimant. Hence, the finding of the Tribunal is in the context of the claimant taking care of the deceased after the occurrence of the accident.

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The consistent case of the claimant as averred in the claimant petition as well as in the evidence is that the deceased who is the brother of the claimant’s father was staying along with the claimant and that the deceased has no other family members who were surviving. It is further forthcoming from the evidence of PW.1 that she has stated that her parents are also deceased.

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The Hon’ble Supreme Court in the case of National Insurance Company Limited V. Birender and Ors³ relied on

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3 AIR 2020 SC 434

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HC-KAR

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by the learned counsel for the appellant, while considering a question as to ‘ whether the legal representatives are entitled to compensation?’ has held that the legal representative of the deceased have a right to apply for compensation. It is also pertinent to note here that the claimant being the daughter of brother of the deceased, is an heir as stipulated under Section 8 as class II Sl.No.iv (3) of the Hindu succession Act, 1956.

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It is averred that the deceased was a driver earning 10,000/- per month. However, no documents have been produced to demonstrate his income. Hence, the notional income of the deceased having regard to the date of the accident is assessed as 9,000/-.

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With regard to the deduction, reliance is placed by the learned counsel for the appellant on the judgment of Division Bench of the Court in the case of Sri B.V.Gopal and another Vs. Mehaboob Pasha and others⁴ whereunder, it has been held that 50% deduction is required to be made towards personal expenses.

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4 MFA No.7318/2016 - High Court of Karnataka, Bengaluru (D.D. 23.10.2020)

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HC-KAR

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Even though the claimant may not be proved as a dependant vis-à-vis the deceased, the claimant is entitled to loss of estate having regard to the fact that the claimant is a legal representative of the deceased. Accordingly, the loss of estate is assessed as (9,000 - ½ x 12 x 5) = 2,70,000/-.

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The Tribunal has awarded medical expenses of `5,000/as per the actual medical expenses incurred, which is just and proper.

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The compensation towards funeral expenses is required to be awarded at 15,000/- together with 20% escalation as per the judgment **_Magma General Insurance Company Ltd. V. Nanu Ram_**<sup>5</sup> _._ Accordingly, 18,000/- is required to be awarded towards the same as against `25,000/- awarded by the Tribunal.

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In view of the compensation awarded on conventional heads, the compensation awarded by the Tribunal towards loss of love and affection for a sum of `10,000/- stands set aside.

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5 (2018) 18 SCC 130

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HC-KAR

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Accordingly, the quantum of compensation is re-assessed

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as follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal (`)	Amount awarded by this Court (`)
1	Loss of love and affection	10,000.00	00
2	Medical expenses	5,000.00	5,000.00
3	Funeral, obsequies and other expenses	25,000.00	18,000.00
4	Loss of estate	00	2,70,000.00
	TOTAL	40,000.00	2,93,000.00

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Accordingly, the claimant is entitled to enhanced compensation of (2,93,000/- - 40,000/-) `2,53,000/-.

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In view of the aforementioned, the following:

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ORDER

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i) The appeal is allowed in part;

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ii) The judgment and award dated dated 08.02.2017 passed in MVC No.72/2016 by the III Addl. District Judge & Member, MACT – IV, D.K., Mangaluru is modified to the extent ordered herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

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HC-KAR

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iii) The appellant/claimant is entitled to a total compensation of `2,53,000/- together with interest at 6% per annum from the date of petition till its realization in addition to the compensation awarded by the Tribunal;

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