SMT. RAJAMA v. SRI. SALIM

(BY SRI. SUBHASH J. BADDI, ADVOCATE) AND:

1. SMT. RAJAMA W/O. RAMJAN ALIAS RAMJANASAB KALIKHAN, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, …APPELLANT - 3 - NC: 2024:KHC-D:11309 MFA No. 101313 of 2022 C/W MFA No. 100418 of 2022

2. KUMARI. SANIYA D/O. RAMJAN ALIAS RAMJANASAB KALIKHAN, AGE: 16 YEARS, OCC: STUDENT,

3. KUMARI. SALMA D/O. RAMJAN ALIAS RAMJANASAB KALIKHAN, AGE: 14 YEARS, OCC: STUDENT,

4. KUMAR JAVED S/O. RAMJAN ALIAS RAMJANASAB KALIKHAN, AGE: 12 YEARS, OCC: STUDENT,

5. SRI. SULTHANASAB S/O. HAJISAB KALIKHAN AGE: 57 YEARS, OCC: NIL, THE RESPONDENT NO.2 TO 4 ARE MINORS R/BY THEIR NATURAL GUARDIAN MOTHER RESPONDENT NO.1 ALL ARE R/O. KULAHALLI FARM HOUSE, TQ. BANAHATTI-RABAKAVI, DIST: BAGALKOT-587311

6. SRI. SALIM S/O. SHABBIR ALAGUNDI, AGE: 32 YEARS, OCC: BUSINESS, R/O: BHARPETH GALLI, JAMAKHANDI – 587301, DIST: BAGALKOT. …RESPONDENTS (BY SRI. HARISH S. MAIGUR, ADVOCATE FOR R1 TO R6) THIS MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, PRAYED THAT THIS HON’BLE COURT IS PLEASED TO CALL THE RECORDS, HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 12.11.2021 PASSED BY THE ADDL. SENIOR CIVL JUDGE & VI MACT, JAMAKHANDI IN MVC NO.429/2020, WITH COST IN THE INTEREST OF JUSTICE. THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR - 4 - NC: 2024:KHC-D:11309 MFA No. 101313 of 2022 C/W MFA No. 100418 of 2022 ORAL JUDGMENT MFA No.101313/2022 is filed by the claimants seeking enhancement compensation. MFA No.100418/2022 is filed by the Insurance Company challenging the award of compensation by the Tribunal.

2. The factual matrix of the case are that on

15.09.2020, deceased Ramjan was a pillion rider in motorcycle KA-31/S-2325 driven by Shivarai heading towards Kulahalli on Jamkhandi-Banahatti PWD road at that time, a car bearing No.KA-04/MT-6533 came from a opposite direction being driven by its driver in a high speed, rash and negligent manner and dashed the motorcycle, due to impact the deceased fell on the ground, sustained injuries and died on the spot. It is the case of the claimants that the deceased was hale and healthy aged about 38 years earning Rs.4,00,000/- per annum by doing agriculture and Rs.20,000/- per month by running TV and Mobile repair shop. The Jurisdictional Police registered a case against the driver of the car i.e., - 5 - NC: 2024:KHC-D:11309 MFA No. 101313 of 2022 C/W MFA No. 100418 of 2022 respondent No.1. The respondent No.1 is a owner and driver of the said car. The claimants filed a petition seeking compensation. The respondent No.1 owner and driver of the car contested the petition. Even the respondent No.2/ Insurance Company by filing the written statement has contested the claim petition contending that the accident has taken place solely due to negligence of the car driver and disputing the age and income of the deceased. The Tribunal has framed issues and after recording the evidence has awarded compensation by the impugned judgment under the following heads: a. b. c. d. e. Towards loss of dependency : Rs.25,51,500/- Towards loss of consortium : Rs.40,000/- Towards loss of estate : Rs.15,000/- Towards funeral expenses : Rs.15,000/- Towards parental consortium : Rs.1,60,000/- Total : Rs.27,81,500/-

3. The Tribunal has held that the Insurance Company is liable to pay the award amount with interest - 6 - NC: 2024:KHC-D:11309 MFA No. 101313 of 2022 C/W MFA No. 100418 of 2022 at 7.5% per annum. Aggrieved by the said judgment, the Insurance Company so also, the claimants have preferred the appeals.

4. Heard learned counsel appearing Insurance Company and the learned counsel for claimants.

5. Learned counsel for Insurance Company would contend that in all charge sheet records the age of the deceased is mentioned as 42 years and the Tribunal erred in taking into consideration the age of the deceased is 38 years based on Ex.P.11-Aadhar Card.

6. The Tribunal ought to have considered the charge sheet material and ought to have taken the age of the deceased as 42 years. He contends that interest awarded is on the higher side and the claimants are not entitled to interest on future prospectus, on that point he placed reliance on the decision of Division Bench of this Court in the case of Chandrakala and Another Vs. Dilipkumar and Another passed in MFA No.1662/2023 - 7 - NC: 2024:KHC-D:11309 MFA No. 101313 of 2022 C/W MFA No. 100418 of 2022 decided on 02.07.2024. He contended that the accident has occurred in the middle of the road and therefore, liability as also to be fixed on the driver/ owner of the motorcycle. On these grounds he prays to allow the appeal filed by the Insurance Company.

7. Learned counsel for claimants would contend that the Tribunal has taken into consideration that the charge sheet material and has rightly held that the accident has occurred due to the rash and negligent driving of the driver of the car. He contends that the age of the deceased mentioned in the Police records is based on the statements of witnesses and it has no basis and Ex.P.11-Aadhar Card contains the date of birth and the Tribunal considering the said aspect has rightly taken the age of the deceased as 38 years. He contends that as per chart prepared for the Lok-Adalat, the notional income for the year 2020 is Rs.13,750/- and the Tribunal has taken the income as Rs.13,500/-, the Tribunal ought to have taken the said income of Rs.13,750/- per month. He - 8 - NC: 2024:KHC-D:11309 MFA No. 101313 of 2022 C/W MFA No. 100418 of 2022 contends that as the accident has occurred in the year 2020, 10% escalation is required to be calculated on conventional heads for every three years from the year

2017. Hence, the Tribunal has not taken into consideration of the said aspect.

8. He contends that, the decision in Chandrakala (supra) has been taken into consideration by the Division Bench in the case of Reliance General Insurance Company Limited Vs. Supreeth S. and Others in MFA No.511/2020 connected with MFA Crob. No.40/2022 decided on 01.08.2024, wherein it is held that the claimants are entitled to interest on future prospects also. On these grounds he prayed to enhance the compensation as awarded by the Tribunal.

9. Learned counsel the claimants made available the certified copy of the above depositions and exhibits. - 9 - NC: 2024:KHC-D:11309 MFA No. 101313 of 2022 C/W MFA No. 100418 of 2022

10. Having heard the learned counsels, the Court has perused the impugned judgment and award and the documents available on record.

11. The Tribunal considering Ex.P.1-FIR, Ex.P.2- Complaint, Ex.P.3-Crime details form and Ex.P.4-Site map, Ex.P.5-Inquest Mahazar, Ex.P.6-MVI report, Ex.P.7- Postmoterm report and Ex.P.8-Final report filed by the Investigation Officer has opined that the accident has taken place due to the negligence of the car driver. Ex.P.3- Crime details form contains the photography of place of accident and exact place of impact. As per the said document, the place of accident is on the left side of the road from which the vehicle of the deceased was moving from Jamkhandi towards Banahatti and it is 4 feet inside the road from the center of the road towards southern side. The car came from southern side of the road and dashed the motorcycle and therefore, only inference that can be drawn is that the accident is occurred only due to the negligence of the car driver. The car driver has not - 10 - NC: 2024:KHC-D:11309 MFA No. 101313 of 2022 C/W MFA No. 100418 of 2022 challenged the charge sheet filed against him. Considering all these aspects the learned Tribunal has rightly answered issue No.2 holding that the accident has taken place due to the negligence of the car driver.

12. The age of the deceased has been mentioned in the charge sheet as 42 years. The Tribunal has taken into consideration the age of the deceased relying on Ex.P.11- Aadhar Card, wherein his date of birth has been indicated as 01.01.1982. Considering the said Aadhar Card, the Tribunal has considered his age as 38 years. The age mentioned in the Aadhar Card has not been disputed in the cross-examination of the witnesses. The age mentioned in the Complaint, Postmortem report and Inquest Mahazar are based on the statements made by the witnesses and that has no basis. Therefore, the Tribunal has rightly taken the age of the deceased as 38 years based on the Aadhar Card-Ex.P.11. - 11 - NC: 2024:KHC-D:11309 MFA No. 101313 of 2022 C/W MFA No. 100418 of 2022

13. Loss of dependency: The Tribunal after appreciating the evidence and documents on record considered the income of the deceased as Rs.13,500/- per month as per notional income chart prepared by this Court for the purpose of Lok-Adalat as on the date of the said accident i.e., in the year 2020, the notional income has been fixed at Rs.13,750/- per month. Hence, the Tribunal ought to have considered the said income. The accident having occurred in the year 2020 interms of Sarla Verma reported in 2009(6) SCC 121 the appropriate multiplier would be 15. The deceased being aged 38 years as on the date of the death, the future prospects at 40% is required to be added to the income of the deceased, in terms of rulings of the Hon’ble Apex Court in the case of National Insurance Company Vs. Pranay Sethi and Others1. The monthly income of the deceased would be (Rs.13,750/- + 40% / 5,500/-) 19,250/-. The deceased being survived by 5 1 2017 ACJ 2700 - 12 - NC: 2024:KHC-D:11309 MFA No. 101313 of 2022 C/W MFA No. 100418 of 2022 dependents and the amount equaling to ¼ is required to be deducted from the said annual income towards the personal and living expenses of the deceased as per the rulings in Sarala Verma Vs. Delhi Transportation Corporation and Another2. Therefore, compensation under the head of loss of dependency would be (Rs.19,250/- x 12 x 15 - 1/4) 25,98,750/-.

14. Loss of Consortium: The Tribunal has awarded towards loss of consortium as deceased who survived by five dependants as per the decision of Hon’ble Apex Court in the case Magma General Insurance Co. Ltd Vs Nanu Ram Alia Chuhru Ram and Others3 Rs.40,000/- x 5 =2,00,000/-.

15. Loss of Estate: The Tribunal has awarded a sum of Rs.15,000/- towards loss of estate. The said compensation under the head of loss of estate is proper as per the decision of ORDER i) The appeal filed by insurance company in MFA No.100418/2022 and claimants in MFA No.101313/2022 are partly allowed. ii) The judgment and award passed by the Tribunal in MVC No.429/2020 dated

12.11.2021 is hereby modified. iii) The claimant –appellant in MFA No.101313/2022 entitled enhanced compensation of Rs.70,250/- with interest at rate of 6% per annum the date of this petition realization. - 18 - NC: 2024:KHC-D:11309 MFA No. 101313 of 2022 C/W MFA No. 100418 of 2022 iv) The insurance company is directed to deposit enhanced compensation within 60 days from the date of receipt of certified copy of this judgment, failing which the insurance company would be liable to pay interest at rate of 9% per annum. v) The apportionment made by the Tribunal remains unaltered. vi) The amount in deposit is ordered to be transferred to the Tribunal. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE PJ,DSP CT:ANB List No.: 1 Sl No.: 47