Smt. Shahida W/o Late Mushtaq Rehaman and Master Mashooq Rehaman S/o Late Mushtaq Rehaman and Master Marzooq Rehaman S/o Late Mushtaq Rehaman and Master Abdul Masqsood S/o Late Mushtaq Rehaman V. The New India Assurance Co. Ltd., Dharmapuri Branch and Sri. V. Periya Swamy

MFA/8571/2017

AI Insights

The case involves two appeals related to a motor vehicle accident that resulted in the death of Mustaq Rehaman. The accident occurred due to the negligence of the driver of a lorry, leading to Rehaman's injuries and subsequent death. The claimants, Rehaman's family, initially sought Rs. 1,00,00,000 in compensation, which was partly granted by the Tribunal. The insurance company contested the liability and the amount of compensation awarded. The High Court's decision addressed the discrepancies in the income assessment of the deceased and adjusted the compensation accordingly, following precedents set by the Supreme Court regarding future prospects and conventional heads of compensation.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 810993 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 25-08-2021
• Assessment Year: misc
• Other Referred Cases: NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS, MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS., UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.
• Laws Referred To: Motor Vehicles Act, 1988
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: C R RAVISHANKAR
• Assessee Lawyers: GURUPASAD
• Keywords: Compensation; Income Assessment; Insurance Claim; Motor Accident; Negligence
• Section: 166; 173(1)

Judgement Text

"1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF AUGUST 2021 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR M.F.A. NO.8571 OF 2017 (MV-D) C/W M.F.A. NO.4066 OF 2017 (MV-D) IN M.F.A. NO.8571 OF 2017 BETWEEN: 1. SMT. SHAHIDA W/O LATE MUSHTAQ REHAMAN AGED ABOUT 40 YEARS. 2. MASTER MASHOOQ REHAMAN S/O LATE MUSHTAQ REHAMAN AGED ABOUT 22 YEARS. 3. MASTER MARZOOQ REHAMAN S/O LATE MUSHTAQ REHAMAN AGED ABOUT 18 YEARS. 4. MASTER ABDUL MASQSOOD S/O LATE MUSHTAQ REHAMAN AGED ABOUT 12 YEARS MINOR REPRESENTED BY HIS NEXT FRIEND MOTHER APPELLANT NO.1 ALL ARE R/AT \"MASHOOQ BHAG\" NEAR BADRIYA JUMA MASJID 2 LOWER BAZAR, BANTWAL. PRESENTLY R/AT SOUGHAGYA COMPLEX, NAGURI MANGALURU. ... APPELLANTS (BY SRI. GURUPRASAD B.R. ADV.,) AND: 1. THE NEW INDIA ASSURANCE CO. LTD., DHARMAPURI BRANCH TAMILNADU STATE LOCAL OFFICE:DIVISIONAL OFFICE GANESH BAZAR BUILDING GHS ROAD, MANGALORE-01 REPRESENTED BY ITS MANAGER. 2. SRI. V. PERIYA SWAMY S/O P K VENKATAGARU GAUNDER AGED ABOUT 69 YEARS R/AT JENNAGARA PARUVADANA VILLAGE JENNAGARA TALUK DHARMAPURA DISTRICT TAMIL NADU STATE. ... RESPONDENTS (BY SRI. C.R. RAVISHANKAR, ADV., FOR SRI. K. SURYANARAYANA RAO, ADV., FOR R1 V/O DTD:6.7.2021 NOTICE TO R2 IS D/W) - - - THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:27.01.2017 PASSED IN MVC NO.1163/2011 ON THE FILE OF THE MEMBER-MACT & II ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, D.K. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. 3 IN M.F.A. NO.4066 OF 2017 BETWEEN: THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, DHARMAPURI TAMIL NADU, LOCAL OFFICE DIVISIONAL OFFICE GANESH BAZAR BUILDING G.H.S. ROAD, MANGALORE-575001 THROUGH MOTOR THIRD PARTY CLAIMS HUB M.G. ROAD, BANGALORE-01 BY DULY CONSTITUTED ATTORNEY. ... APPELLANT (BY SRI. C.R. RAVISHANKAR, ADV., FOR SRI. K. SURYANARAYANA RAO, ADV.,) AND: 1. SMT. SHAHIDA W/O LATE MUSHTAQ REHAMAN AGED ABOUT 40 YEARS. 2. MASTER MASHOOQ REHAMAN S/O LATE MUSHTAQ REHAMAN AGED ABOUT 22 YEARS. 3. MASTER MARZOOK REHAMAN S/O LATE MUSHTAQ REHAMAN AGED ABOUT 18 YEARS. 4. MASTER ABDUL MASQSOOD S/O LATE MUSHTAQ REHAMAN AGED ABOUT 12 YEARS MINOR, REP BY MOTHER RESPONDENT NO.1. 5. SMT. S. ZAINABU W/O LATE HAZI T ABDUL REHAMAN AGED ABOUT 74 YEARS. 4 ALL ARE R/O \"MASHOOQ BHAG\" NEAR BADRIYA JUMA MASIJID LOWER BAZAR, BANTWAL. PRESENTLY R/AT SOUBHAGYA COMPLEX NAGURI, MANGALORE-575061. 6. V. PERYASWAMY S/O P.K. VENKATAGARU GOUNDER AGED ABOUT 69 YEARS R/AT. NENNAGARA PARUVADANA VILLAGE JENNAGARA TALUK, DHARMAPURI DISTRICT TAMILNADU-600001. ... RESPONDENTS (BY SRI. GURUPRASAD B.R. ADV., R5 & R6 ARE SERVED AND UNREPRESENTED) - - - THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:27.01.2017 PASSED IN MVC NO.1163/2011 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL AND II ADDL. SR. CIVIL JUDGE, MANGALURU, D.K. AWARDING COMPENSATION OF RS. 38,25,000/- ALONG WITH INTEREST OF 9% P.A. FROM THE DATE OF THIS PETITION TILL ITS REALIZATION. THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING: 5 JUDGMENT MFA No.8571/2017 has been flied by the claimants seeking enhancement of compensation, whereas, MFA No.4066/2017 has been filed by the Insurance Company under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short), being aggrieved, by the judgment dated 27.01.2017 passed by the Motor Accident Claims Tribunal (hereinafter referred to as 'the Tribunal' for short) in M.V.C.No.1163/2011. Since, both these appeals are directed against the same judgment and arise from the same accident, they were heard analogously and are being decided by this common judgment. 2. The facts leading to the filing of this appeal briefly stated are that on 11.03.2011, the deceased Mustaq Rehaman sustained injuries and succumbed to them in the accident which occurred near Kodakkal, Alape Village, Mangalore, when he was traveling as a passenger in a car bearing registration No.KA-19-M-299, due to the negligence of the driver of the lorry bearing Registration No.KA-03-B- 284 (hereinafter referred to as 'the offending vehicle' for 6 short). Thereupon, the claimants filed a claim petition seeking compensation to the tune of Rs.1,00,00,000/- along with interest under Section 166 of the Act. The Respondent No.2 viz., Insurance Company resisted the claim petition, inter alia, on the ground that the accident occurred wholly due to the negligence of the driver of car in which the deceased was traveling and that the liability to pay compensation, if any, would be subject to the terms and conditions contained in the policy. 3. The Tribunal, thereafter, framed the issues and recorded the evidence. The claimant No.1 examined herself as PW11 along with 13 other witness namely - PW1 to PW14 and got marked documents namely Ex.P1 and Ex.P83. The respondents examined Sheshappa (RW1), Manjunath Shetty (RW2), J Saldhana (RW3) and adduced documents namely Ex.R1 to R4(a). The Tribunal by the impugned judgment, inter alia, held that the deceased Mustaq Rehaman sustained injuries and succumbed to them in the accident which occurred due to the negligence of the driver of the offending vehicle. The Tribunal, further, held that the claimants to be 7 entitled to a compensation of Rs.38,25,000/- with interest at the rate of 9% per annum and fastened the liability on the Insurance Company of the offending vehicle to pay the aforesaid amount of compensation. Being aggrieved, these appeals have been filed. 4. Learned counsel for the claimants submitted that the Tribunal erred in assessing the income of the deceased. In this regard, it is submitted that Tribunal erred in discarding the income declared in Ex.P78 IT Returns without any basis. It is further submitted that the Tribunal erred in deducting 1/3rd from the income of the deceased instead of 1/4th toward living expenses. It is also submitted that the Tribunal erred in not making any additions towards future prospects. It is urged that the amount of compensation awarded under the conventional heads on the lower side and the same deserves to be enhanced suitably. On the other hand, the learned counsel for the Insurance Company submitted that the Tribunal erred in assessing the income of the deceased at Rs.30,000/- per month on the basis of the IT returns furnished by the claimants at Ex.P74 to Ex.P78. In this 8 regard our attention has been invited to Ex.P74 to Ex.P78, to argue that the income of the deceased ought to have been assessed on the lower side as the average of the income declared by the deceased would be Rs.1,50,000/- per annum. It is urged that the amount of interest awarded by the Tribunal is on the higher side and the same is to be scaled down to 6% per annum. 5. We have considered the submissions made by learned counsel for the parties and have perused the record. It is not in dispute that the deceased Mustaq Rehaman sustained injuries in the accident which occurred due to the negligence of the driver of the offending vehicle and succumbed to the same. The only issue which arises for our consideration in these appeals are with regard to the quantum of compensation. The claimants in order to substantiate their claim that the deceased engaged as a working partner at Taj Jewelers and was earning an income of Rs.6,00,000/- per annum, have adduced the Income Tax Returns namely Ex.P74 to Ex.P78. The avocation and the genuineness of the aforesaid documents are not in dispute. 9 Ex.P74, Ex.P75, Ex.P76 and Ex.P77 are the IT returns filed by the deceased for the Assessment Years 2006-07, 2007-08, 2008-09 and 2009-10 declaring an income of Rs.1,25,698/-, Rs.1,47,858/-, Rs.1,66.287/- and Rs.1,40,935/- respectively. Ex.P78 and Ex.P79 are the Income Tax Returns filed in the name of the assessed subsequent to his death for the Assessment Years 2010-2011 and 2011-12 by the wife of the deceased on 31.03.2011 and 03.12.2011 declaring an income of Rs.4,86,787/- and Rs.5,11,289/- respectively. The Tribunal on the basis of Ex.P74 to Ex.P78, has assessed the income of the deceased notionally at Rs.30,000/- per month. It is pertinent to note that the deceased was a businessman by avocation and therefore, a steady monthly income cannot be proved and therefore, some amount of guess work would have to be employed is assessing the income of the deceased. We find that the income of deceased as assessed by the Tribunal is just and proper as the same is based on proper appreciation of evidence. Therefore, no interference is warranted with regard to the income of the claimant. 10 6. 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.42,000/-. Since, the number of dependents is 5, therefore, 1/4th of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.31,500/-. Taking into account the age of the deceased which was 39 years at the time of accident, the multiplier of ‘15’ has to be adopted. Therefore, the claimants are held entitled to (Rs.31,500x12x15) i.e., Rs.56,70,000/- on account of loss of dependency. 7. In view of 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.' AIR 2020 SC 3076 each of the claimant’s are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss 11 love and affection. Thus, the claimants are held entitled to Rs.2,00,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a total compensation of Rs.59,00,000/-. The aforesaid total amount compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the payment is made. To the aforesaid extent, the judgment passed by the Tribunal in M.V.C.No.1163/2011 is modified. Accordingly, the appeals are partly allowed. Sd/- JUDGE Sd/- JUDGE ss "