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NC: 2024:KHC:49172-DB
MFA No.10501/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 29 DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO.10501/2018 (MV-D)
BETWEEN:
1. MAMTAZ
W/O MOHAMMAD SADIQ
AGED ABOUT 50 YEARS
2. MOHAMMED SADIQ
S/O BNT ABBU
AGED ABOUT 57 YEARS
BOTH ARE R/O FARANGIPETE HOUSE
PUDU VILLAGE, BANTWAL TALUK
PRESENTLY R/AT
C/O MOHAMMED ARIEF
AIKAY COMPOUND, KOORNADKA
KEMMINJE VILLAGE, PUTTUR TALUK, D K … APPELLANTS
(BY SRI.GURUPRASAD B R, ADVOCATE)
AND:
Digitally
signed by K S
RENUKAMBA
1. VIDYUTH SHETTY
Location:
AGED ABOUT 32 YEARS
High Court of
R/O 4-2221, BHARATH NAGAR CROSS ROAD
Karnataka
BEJAI, MANGALORE
D.K. DISTRICT - 575 001
2. ORIENTAL INSURANCE CO. LTD.
REPRESENTED BY ITS DIVISIONAL MANAGER
BEAUTY PLAZA, HAMPANKATTA
MANGALORE TALUK
DAKSHINA KANNADA -575 001 … RESPONDENTS
(BY SRI.S.V.HEGDE MULKHAND, ADVOCATE FOR R2;
SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT V/O
DTD:11.11.2024)
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MFA No.10501/2018
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 29/08/2018, PASSED IN MVC
NO.1715/2016, ON THE FILE OF THE V ADDITIONAL DISTRICT &
SESSIONS JUDGE, AND MEMBER, ADDITIONAL MACT, D.K.
MANGALURU, SITTING AT PUTTUR, D.K., DISMISSING THE CLAIM
PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)
Challenging dismissal of their claim petition claimants in
MVC No.1715/2016 on the file of V Additional District and
Sessions Judge and Member, Additional MACT, D.K. Mangaluru
sitting at Puttur, D.K, have preferred this appeal.
2. Appellants were claimant Nos.1 and 2 and
respondents were respondent Nos.1 and 2 before the Tribunal.
For the purpose of convenience, the parties are referred to
henceforth according to their ranks before the Tribunal.
3. Claimants are the parents of deceased Mohammad
Shafiq. On 24.02.2016 at 2.15 p.m., when Mohammad Shafiq
and his friends were traveling in Hyundai Car bearing
registration No.K.A-19-MD-6736 near Katageri village of
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MFA No.10501/2018
Madikeri Taluk, Tipper lorry bearing registration No.K.A-19-AB-
2073 hit the said Car. In the accident Mohammad Shafiq
suffered grievous injuries. He succumbed to the injures when
he was being shifted to the hospital. At the relevant time,
respondent Nos.1 and 2 were the registered owner and insurer
of Tipper lorry bearing registration No.K.A-19-AB-2073.
4. Claimants filed MVC No.1715/2016 against the
respondents claiming compensation of Rs.25,00,000/-
contending that the accident and consequential death of
Mohammad Shafiq took place due to the actionable negligence
on the part of the driver of Tipper lorry bearing registration
No.K.A-19-AB-2073. They further contended that the deceased
was working as supervisor, earning Rs.19,000/- per month and
they were all dependent on his income. They claimed that due
to the death of Mohammad Shafiq they have suffered damages
of Rs.25,00,000/- and respondents are liable to pay the same.
5. Respondent No.1 did not contest the petition.
Respondent No.2 contested the petition denying actionable
negligence on the part of driver of insured Tipper lorry, age,
occupation, income of the deceased and its liability to pay the
compensation. Respondent No.2 contended that driver of Car
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MFA No.10501/2018
bearing registration No.K.A-19-MD-6736 was also equally
negligent and accident occurred due to actionable negligence
on his part also.
6. Before the Tribunal on behalf of claimants, PWs.1 to
3 were examined and Exs.P1 to P12 were marked. Respondents
did not lead any evidence. However, Exs.R1 to R5 namely
judgment and award in MVC Nos.559/2016, 706/2016,
712/2016 and 1645/216 were marked on behalf of respondent
No.2.
7. The Tribunal on hearing the parties and relying on
Exs.R1 to R5 held that the accident occurred solely due to
actionable negligence on the part of driver of Car and dismissed
the petition. Claimants have preferred the above appeal
challenging the said award.
8. Sri Guruprasad B.R, learned Counsel for the
appellants-claimants submitted copy of judgment in
MFA No.9019/2017 and connected appeals rendered on
10.11.2020 by this Court, wherein, this Court has reversed the
finding of MACT that accident occurred solely due to actionable
negligence on the part of driver of Car. This Court has held that
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MFA No.10501/2018
the accident occurred solely due to actionable negligence on
the part of driver of lorry.
9. Sri S.V.Hegde Mulkhand, learned Counsel for
respondent No.2 fairly conceded that the judgment in
MFA No.9019/2017 has attained finality. Claim petition in the
present appeal also arose out of the same accident. Therefore,
finding of the Tribunal that the accident occurred due to
actionable negligence on the part of the driver of the Car does
not sustain. It has to be held that the accident occurred solely
due to the actionable negligence on the part of the driver of the
insured lorry. Then the only question that remains for
consideration what would be the just compensation payable.
10. As per Ex.P10/copy of the driving licence, date of
birth of the deceased was 20.07.1996. Accident occurred on
24.02.2016. Therefore, as on the date of accident he was aged
20 years. Though claimant relied on the evidence of PW.3 to
claim that the deceased was working as supervisor in Arafa
Trading and Company and receiving salary of Rs.19,500/- per
month, except the salary slip, no other material was produced
to show the existence of business and company of PW.3 by
name Arafa Trading and Company and employment of the
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MFA No.10501/2018
deceased in such company. No Bank statements or income tax
returns of the said company were produced. Therefore,
employment and income of the deceased as stated by PW.3
and Ex.P12 cannot be accepted. Therefore, notional income has
to be taken.
11. As per the chart prepared by Karnataka State Legal
Services Authority to assess notional income, in the year 2016,
the notional income of a person is Rs.9,500/-. Considering the
age of the deceased, his employment and judgment of Hon'ble
Supreme Court in the case of National Insurance Company
1
Limited vs. Pranay Sethi and Others , 40% has to be super
added to his income by way of future prospects. As the
deceased was bachelor, 50% of his income has to be deducted
for his personal expenses. Applicable multiplier is 18. Therefore
compensation on the head of loss of dependency comes to
(Rs.9,500+3800(40%)=13,300x50%x12x18)=Rs.14,36,400/-.
12. As per the judgments of Supreme Court in Pranay
Sethi ’s case referred to supra and in Magma General
2
Insurance Company Limited vs. Nanu Ram & Ors , claimants
1
(2017) 16 SCC 680
2
(2018) 18 SCC 130
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are entitled to the consortium at the rate of Rs.40,000/- each
with escalation at 10%. Further on conventional heads of loss
of estate, funeral expenses and transportation of dead body,
claimants are entitled to sum of Rs.15,000/- + Rs.15,000/-
each with escalation at 10%. Therefore, the just compensation
payable is as follows:
Particulars Amount (Rs.)
Loss of dependency 14,36,400/-
Loss of consortium 88,000/-
Loss of estate 16,500/-
Funeral expenses and 16,500/-
transportation of dead body
Total 15,57,400/-
13. As the vehicle was covered with policy issued by
respondent No.2 - insurer is liable to compensate the damages
with interest at 6% p.a. The appeal deserves to be allowed in
part. Hence, the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and order of the
Tribunal dismissing the claim petition in MVC
No.1715/2016 is hereby set aside.
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iii. The claimants are entitled to compensation of
Rs.15,57,400/- with interest thereon at 6% p.a. from the
date of petition till its realization.
iv. Respondent No.2 - insurer shall deposit the
said amount within four weeks from the date of receipt of
copy of this order.
v. Out of the compensation amount, claimant
Nos.1 and 2 are entitled to 50% each.
vi. On deposit of amount, the Tribunal shall
digitally release the amount to them according to their
shares.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
PKN
List No.: 1 Sl No.: 32