Khurshid Ahamad Vs the Managing Partner

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:31.01.2023 PASSED IN MVC No.776/2023 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MACT, DAKSHINA KANNADA, MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA No. 3101/2023

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BETWEEN:

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UNITED INDIA INSURANCE COMPANY LTD RAMEEZ ARCADE, CHEROOTY ROAD NEAR CH FLYOVER KOZHIKODE, KERALA – 673 032. NOW REPRESENTED BY ITS ASSISTANT MANAGER REGIONAL OFFICE 5^TH FLOOR, KRUSHI BHAVAN

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HC-KAR

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CNR: KAHC010349102023

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NRUPATHUNGA ROAD HUDSON CIRCLE, BANGALORE – 560 001.

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...APPELLANT

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(BY SRI L SREEKANTA RAO, ADVOCATE)

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AND:

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KHURSHID AHAMAD S/O LATE HASAN SAHEB AGED ABOUT 67 YEARS.

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JAMEELA W/O KHURSHID AHAMAD AGED ABOUT 48 YEARS.

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SURAYYA W/O SAYYAD MOHAMMED SHUJAATH AGED ABOUT 27 YEARS.

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ALL ARE RESIDING AT:

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No. 25-2-2022/4 NEAR MASJID BUILDING MASJID ROAD, MAHAKALIPADPU, JEPPU, MANGALURU – 575 002.

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THE MANAGING PARTNER TEAM THAI AGHIN ROADWAYS 5-93, KOLLUPALAYAM OPP. KANIYUR CHECK POST SULUR, TK, COIMBATORE TAMIL NADU – 641 5659. (R. C OWNER OF TRUCK BEARING No. TN-37/DX-4844)

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...RESPONDENTS

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(BY SMT. POOJA PARVATHI, ADVOCATE

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SRI RAVISHANKAR SHASTRY G, ADVOCATE FOR R1 TO R3 V/O DTD. 18.05.2023, NOTICE TO R4 IS DISPENSED WITH)

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HC-KAR

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CNR: KAHC010349102023

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:31.01.2023 PASSED IN MVC No.776/2021 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MACT, DAKSHIN KANNADA, MANGALURU, AWARDING COMPENSATION OF Rs.33,82,461/- WITH INTEREST AT 9 PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.

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

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CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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MFA No.4770/2023 is filed by claimants seeking

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enhancement of compensation and MFA No.3101/2023 is filed by the insurer challenging the quantum of compensation awarded in the judgment and award dated 31.01.2023 passed in MVC No.776/2021 by IV Additional District and Sessions Judge and MACT, Mangaluru.

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2. Even though the appeals are listed today for admission, they are taken up for disposal with the consent of counsels appearing both parties.

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3. Claimants made a claim petition before the Tribunal praying to award compensation for the death of

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HC-KAR

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NC: 2026:KHC:37401 MFA No. 4770 of 2023 C/W MFA No. 3101 of 2023

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5 -

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CNR: KAHC010349102023

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Shahid Ahamad @ Shahid Ahmad in a road traffic accident occurred on 23.04.2021 contending that the accident occurred due to the rash and negligent driving of the driver of the Truck bearing registration No.TN-37/DX4844. The Tribunal, after recording the evidence, appreciating the evidence on record has assessed the compensation and awarded compensation under various

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heads as under:

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1.	Loss of dependency	Rs.30,24,000/-
2.	Loss of parental consortium	Rs.80,000/-
3.	Loss of Love and affection	Rs.1,20,000/-
4.	Loss of estate	Rs.15,000/-
5.	Funeral Expenses	Rs.15,000/-
6.	Medical Expenses	Rs.1,28,461/-
	Total	Rs.33,82,461/-

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4. The Tribunal has also awarded interest at the

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rate of 9% per annum from the date of petition till realisation and directed respondent No.2-insurer to pay the award amount with interest. Claimants have filed MFA No.4770/2023 seeking enhancement of compensation and Insurer has filed MFA No.3101/2023 challenging the quantum of compensation awarded.

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HC-KAR

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CNR: KAHC010349102023

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5. Heard learned counsel for claimants and

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learned counsel for the insurer.

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6. Learned counsel for claimants would contend

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that the claimant was working as cashier cum manager in city fresh chicken stall of P.W.2 and was getting the salary of Rs.24,000/- per month. The Tribunal has not considered the same and taken the notional income at Rs.15,000/per month. She placing reliance on the decision of the Hon’ble Apex Court in the case of Rajwati @ Rajjo and

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Ors Vs United India Insurance Company Ltd and Ors¹

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contends that even though the author of salary certificate is not examined, the salary slip has to be taken into consideration for considering the income of the deceased. She further submits that the accident occurred in the year 2021 and the Tribunal has not considered escalation at 10% on conventional heads as per the decision of the Hon’ble Apex Court in the case of National Insurance

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1 In 2022 SCC OnLine SC 1699

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HC-KAR

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CNR: KAHC010349102023

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Co. Ltd Vs Pranay Sethi and Ors² . The Tribunal has only awarded consortium of Rs.80,000/- to claimant Nos.1 and 2 and not awarded consortium to claimant No.3. With these, she prayed to allow the appeal and enhancement of compensation.

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7. Learned counsel for - insurer would content that the author of Ex.P9 –salary certificate who has been examined as P.W.2 is the husband of claimant No.3 – P.W.1 and the said certificate is produced to show higher income of the deceased. P.W.2 has not produced any supporting documents to indicate that the said salary has been credited to the account of the deceased. Considering said aspect, the Tribunal has rightly taken the notional income at Rs.15,000- per month. The deceased was bachelor and deductions towards personal expenses to be taken at 50%. The Tribunal has erred in deducting 1/3^rd towards personal expenses of the deceased. Claimants have not entitled compensation under head of loss of love

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2 In AIR 2017 SC 5157

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HC-KAR

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CNR: KAHC010349102023

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and affection as awarded by the Tribunal in a sum of Rs.1,20,000/- since consortium is awarded. The interest awarded at 9% by tribunal is on higher side considering bank interest rate.

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8. Having heard learned counsels, this Court has perused impugned judgment, award and trial Court records.

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9. The accident occurred on 23.04.2021 and at the

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time of the accident the deceased was aged 22 years. It is

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case of claimants that the deceased was working as cashier cum manager in city fresh chicken stall of P.W.2 and he was getting salary of Rs.24,000/- per month. P.W.2 has stated in his evidence that he was running city fresh chicken stall in market since February -2015 and the deceased was working as cashier cum manager and he was getting salary of Rs,21,400/- and batha of Rs.2,600/per month and totally getting salary of Rs.24,000/- per month. P.W.2 has stated that he has not taken trade license and he is running stall in rented premises. Ex.P17

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HC-KAR

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CNR: KAHC010349102023

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is the Copy of statement containing materials supplied to City Fresh Chicken, Mangalore by Anupama Feeds and Farms which indicate that P.W.2 is running the said City Fresh Chicken stall by purchasing the materials from Anupama Feeds and Farms. Ex.P18 is the certificate issued by the Karnataka Legal Metrology, Mangalore pertaining to the City Fresh Chicken stall of P.W.2. Merely because P.W.2 is husband of claimant No.3 –P.W.1, his evidence cannot be brushed aside.

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10. The Hon'ble Apex Court in the case of Rajwati (supra) has observed as under:

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“ 20. In view of the above, we do not agree with the view taken by the High Court while rejecting the salary certificate (Exhibit 19) and pay slip (Exhibit 20) of the deceased merely on the ground that the person issuing the two aforementioned documents was not examined before the Learned Tribunal. The said documents are conclusive proof of the income of the deceased and were also corroborated by the statements of the deceased’s wife (Appellant No. 1 herein) and his co-workers. As such, the

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HC-KAR

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CNR: KAHC010349102023

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High Court was not justified in assessing the income of the deceased at Rs.4,836/- per month on the basis of minimum wages fixed by the State at the relevant time. Resultantly, we affirm the findings of the Learned Tribunal so far as they relate to assessing the deceased’s income at Rs.11,225/- per month on the basis of aforementioned two documents. Annual income of the deceased, therefore, amounts to, Rs.11,225/- x 12 = Rs.1,34,700/-.“

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11. The Hon'ble Apex Court in the said case has accepted salary certificate even though the author has not been examined. In the said case, the Hon’ble Apex Court has relied upon salary certificate and pay slip even though no supporting documents are produced to indicate credit of the salary to the account of the deceased. In the case on hand, the author is examined in order to prove the salary of the deceased. On perusal of Ex.P9, the deceased was getting salary of Rs.21,400/- and daily batha of Rs.2,600/-. The daily bhata is paid towards travel expenses and that cannot be part of the income/salary of the deceased. Therefore, the salary of the deceased is

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HC-KAR

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CNR: KAHC010349102023

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taken at Rs.21,000/-. Since the deceased was aged about 22 years, the Tribunal has rightly added future prospects at 40%. The Tribunal has deduction 1/3^rd towards personal expenses of the deceased. The deceased was bachelor and therefore, personal expenses to be deducted is 50%. The Tribunal has rightly applied multiplier 18. In view of the above, the loss of dependency is calculated as under:

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Rs.21,000/- + 40% (Rs.8,400/-) =Rs.29,400/- minus 50% = Rs.14,700/- x 12 x 18 = Rs.31,75,200/-.

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12. The Tribunal has awarded loss of parental

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consortium in a sum Rs.80,000/- and loss of love and affection in a sum of Rs.1,20,000/-. The claimants being the two parents and the sister of the deceased are entitled to consortium in a sum of Rs.40,000/- each with 10% escalation as per the decision of the Hon’ble Apex Court in the case of Pranay Sethi(supra). Therefore, claimants are entitled to consortium in a sum of Rs.44,000 x 3 = Rs.1,32,000/-. In view of award of consortium, claimants are not entitled to compensation under the head of loss of

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HC-KAR

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CNR: KAHC010349102023

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love and affection separately in a sum of Rs.1,20,000/- as awarded by the Tribunal. The Tribunal even though awarded loss of estate in a sum of Rs.15,000/- and funeral expenses in as sum of Rs.15,000/- but has not taken into consideration 10% escalation. Therefore, claimants are entitled to loss of estate in sum of Rs.15,000/- with 10% escalation which comes to Rs.16,500/- and funeral expenses in sum of Rs.15,000/- with 10% escalation which comes to Rs.16,500/-. The Tribunal has rightly

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awarded medical expenses of Rs.1,28,461/-. In view of the above, claimants are entitled to total compensation

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under various heads as under:

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1.	Loss of dependency		Rs.31,75,200/-
2.	Loss of consortium		Rs.1.32,000/-
3.	Loss of estate		Rs.16,500/-
4.	Funeral Expenses		Rs. 16,500/-
5.	Medical Expenses		Rs.1,28,461/-
		Total	Rs.34,68,661/-

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13. Claimants are entitled to total competition of

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Rs.34,68,661/- as against Rs.33,82,461/- as awarded by the Tribunal. The tribunal has awarded interest @ 9% p.a.

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HC-KAR

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CNR: KAHC010349102023

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The said interest awarded is on higher side considering bank interest rates. Therefore interest awarded by tribunal @ 9% is reduced to 6%. Consequently, claimants are entitled to enhanced compensation of Rs.86,200/- with

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interest at the rate of 6% per annum from the date of petition till realization. Respondent No.2 -insurer is liable

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to pay the enhanced compensation with interest.

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14. In view of the above, the following

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ORDER

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i) Both appeals are allowed in part.

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ii) Appellants -claimants are entitled to enhanced compensation of Rs.86,200/- with interest at the rate of 6% per annum from the date of petition till realization.

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iii) Respondent No.2 -insurer shall deposit the enhanced compensation with interest before the Tribunal within a period of 06 weeks from this day failing which it is liable to pay the interest at the rate of 9% per annum from this day till payment.

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