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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE 2021 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR M.F.A. NO.639 OF 2018 (MV-D) BETWEEN:
SMT. RAMLATH @ RAMLATHA W/O LATE ABDUL RAHIMAN, AGED ABOUT 26 YEARS, R/AT KINYA MOOSA HOUSE, MAYYADDI MANZIL, KOTEPURA, ULLALA, MANGALURU-575 020. ...APPELLANT (BY SRI GURUPRASAD B.R., ADVOCATE) AND: 1. UNITED INDIA INSURANCE CO. LTD., VARANASHIU TOWER, MISSION STREET, BUNDER, MANGALURU-575 001, REPRESENTED BY ITS MANAGER. 2. BASHEER B S/O KAMAL, AGED ABOUT 42 YEARS,
2 R/O. NO.8-128D, BATTAPADY HOUSE, SOMESHWARA, UCHILA, MANGALURU-575 022. 3. ABDUL KHADER @ K.A. KHADER S/O LATE AHAMAD BHAVA @ BAWA, AGED ABOUT 77 YEARS, 4. JUBAIDA W/O ABDUL KHADER @ K.A. KHADER, AGED ABOUT 57 YEARS, RESPONDENTS NO.3 AND 4 BOTH ARE R/AT KINYA MOOSA HOUSE, MAYYADDI MANZIL, KOTEPURA, ULLALA, MANGALURU-575 020. ...RESPONDENTS (BY SRI S. KRISHNA KISHORE, ADVOCATE FOR R-1; V/O DATED 08.01.2021 AND 23.02.2021 NOTICE TO R-2, R-3 AND R-4 D/W) - - - THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.09.2017, PASSED IN MVC NO.297/2016, ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MACT, D.K., MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, HEMANT CHANDANGOUDAR J., DELIVERED THE FOLLOWING: JUDGMENT This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) has
3 been filed by the claimant seeking enhancement of the amount of compensation, against the judgment dated 18.09.2017 in MVC. 297/2016 passed by the VI Additional District & Sessions Judge and Motor Accident Claims Tribunal, Dakshina Kannada, Mangaluru. (hereinafter referred to as 'the Tribunal' for short). 2. Facts giving rise to the filing of the appeal briefly stated are that on 24.10.2015, Abdul Rahiman was proceeding on his motor cycle from Mangaluru towards Thokkottu side by observing the rules and regulations. At that time, an autorickshaw driven by its driver with high speed, in a rash and negligent manner, came from the hind side and dashed against the motor cycle. As a result of the aforesaid accident, Abdul Rahiman sustained grievous injuries and succumbed to the same. 3. The claimants thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 38 years at the time of accident and was engaged in commercial accounts service and was earning Rs.3,00,000/- per annum. It was further
4 pleaded that accident took place solely on account of rash and negligent driving of the auto by its driver. The claimants claimed compensation to the tune of Rs.50,00,000/- along with interest. 4. The first respondent filed a written statement admitting that the autorickshaw was insured with the second respondent and also admitted he had valid driving licence as on the date of the accident and prayed for the dismissal of the petition. 5. The insurance company filed written statement, in which the mode and manner of the accident was denied. It was also pleaded that the deceased himself rode the motorcycle in a rash and negligent manner and dashed against the autorickshaw and hence liability could not be fastened on the Insurance company. It was further pleaded that the driver of the autorickshaw was not holding valid and effective driving licence nor had valid fitness permit to drive the auto and that the liability of the insurance company, if any, would be subject to the terms and conditions of the insurance policy. The age, avocation and income of the
5 deceased was also denied and it was pleaded that the claim of the claimants is exorbitant and excessive. 6. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 examined herself as PW-1 and examined one witness as P.W.2 and got exhibited documents namely Ex.P1 to Ex.P27. The respondents neither adduced any evidence nor produced any document. 7. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the autorickshaw by its driver. It was further held, that as a result of aforesaid accident, the deceased sustained grievous injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.18,09,000/- along with interest at the rate of 6% per annum. Being aggrieved, this appeal has been filed seeking enhancement of the amount of compensation.
6 8. Learned counsel for the claimant submitted that the Tribunal has grossly erred in assessing the income of the deceased as Rs.13,500/- per month instead of assessing the income of the deceased as per the income tax returns filed by the deceased for the financial year 2013-2014. It is further submitted that the Tribunal has erred in not making an addition to the tune of 40% to the income of the deceased on account of future prospects in view of the law laid down by the Supreme Court in ‘NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’ AIR 2017 SC 5157. It is further submitted that the sums awarded under the heads ‘loss of consortium’ and ‘funeral expenses’ are on the lower side and deserves to be enhanced suitably. 9. On the other hand, learned counsel for the insurance company submitted that except income tax returns no evidence has been adduced by the claimants to prove the income of the deceased before the Tribunal and that the Tribunal has rightly taken the income of the deceased at Rs.13,500/- per month. It is further submitted
7 that the amount of compensation awarded by the Tribunal is just and proper and does not call for any interference. 10. We have considered the submissions made by learned counsel for the parties and have perused the record. The only question which arises for our consideration in this appeal is with regard to the quantum of compensation. 11. Admittedly, the claimants have produced the income tax returns for the financial year 2011-12, 2012- 2013, 2013-14 and 2014-15 at Exs.P21 to P23. The accident occurred on 24.10.2015. The income tax returns filed for the financial year 2013-2014 at Ex.P.23 it would be relevant for the purpose of assessing the income of the deceased indicates that the income of the deceased was 2,23,400/- per annum after deductions. However, the Tribunal has not considered the income tax returns at Ex.P.23 for assessing the income of the deceased. In the absence of contrary evidence the income of the deceased reflected in the income tax returns should be taken as conclusive proof. Hence, by considering Ex.P.23 the income of the deceased is assesed at
8 18,617/- per month as against Rs.13,500/- assessed by the Tribunal. 12. In view of the law laid down by the Constitution Bench of the Supreme Court in ‘NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’ AIR 2017 SC 5157, 40% of the amount has to be added on account of future prospects. Thus, the monthly income comes to Rs.26,064/-. Since, the number of dependents are 3, therefore, 1/3rd of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.17,376/-. Taking into account the age of the deceased which was 38 years at the time of accident, the multiplier of ‘15’ has to be adopted. Therefore, the claimants are held entitled to (Rs.17,376 x 12 x 15) i.e., Rs.31,27,680 /- on account of loss of dependency. 13. In view of law laid down by the Supreme Court in ‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.’ (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in ‘UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’
9 IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020 each of the claimant’s are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss of love and affection. Thus, the claimants are held entitled to Rs.1,20,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. 14. Thus, in all, the claimants are held entitled to enhanced compensation of Rs. 32,77,680 /- as against Rs. 18,09,000/- awarded by the Tribunal. The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till realization. To the aforesaid extent, the judgment passed by the Claims Tribunal is modified.
Accordingly, the appeal is disposed of. Sd/- JUDGE
Sd/-
JUDGE HR