Partly allowed

Smt. Rudranamma v. Mr. Faizur Rahman @ Firoz Rehaman

Karnataka HC14 Dec 2022MFA/4443/2018

Case brief

AI extract

What is this about?

This is a Miscellaneous First Appeal against a Motor Accidents Claims Tribunal award. The High Court, upon finding the death of a minor child actionable, enhanced the compensation awarded by the Tribunal, distinguishing earlier precedent regarding children of school-going age due to the victim's young age.

What did the court decide?

The appeal was allowed in part. The impugned award is modified to grant enhanced compensation of Rs. 4,00,000/- with interest at 6% p.a. from the date of the petition.

Smt. Rudranamma Vs Mr. Faizur Rahman @ Firoz Rehaman — Insurance | Karnataka HC (2022)

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MFA No. 4443 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF DECEMBER, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR. JUSTICE C. M. JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 4443 OF 2018 (MV-D)

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BETWEEN:

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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SMT. RUDRANAMMA W/O. S.REVANNA ARADHYA AGED ABOUT 30 YEARS

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SRI REVANNA ARADHYA S/O. SHIVAMALLA ARADHYA AGED ABOUT 41 YEARS

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BOTH ARE RESIDING AT NO.634 6TH WARD, ABDUL NAZEER SAB STREET GUNDLUPET TOWN, CHAMRAJANAGAR DISTRICT KARNATAKA - 571 111

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NOW RESIDING AT KUDALAKUPPE VILLAGE BALLENAHALLI GRAAMA PANCHAYATH SRIRANGAPATNA TALUK, MANDYA DISTRICT KARNATAKA - 571 807.

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…APPELLANTS

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(BY SRI. BHANU PRAKASH H V, ADVOCATE)

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MFA No. 4443 of 2018

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AND:

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MR. FAIZUR RAHMAN @ FIROZ REHAMAN S/O. SHAHUL HAMEED.A AGED ABOUT 46 YEARS R/AT NO 804, 19TH WARD S R ROAD, GUNDLUPET CHAMRAJANAGAR DISTRICT KARNATAKA - 571 111.

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NEW INDIA INSURANCE CO. LTD., REPRESENTED BY ITS DIVISIONAL MANAGER NO.2951, 2^ND FLOOR, J.L.B.ROAD, NEAR CHAMUNDIPURAM CIRCLE CHAMUNDIPURAM MYSORE - 570 004.

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…RESPONDENTS (BY SRI.S.V.HEGDE MULKHAND, ADVOCATE FOR R2 THROUGH VC; NOTICE TO R1 IS DISPENSED WITH V/O DTD.24.08.2021) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED.16.02.2018 PASSED IN MVC NO.963/2017 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT, SRIRANGAPATNA PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ORDERS, THIS DAY, C.M.JOSHI J., DELIVERED THE FOLLOWING:

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JUDGMENT

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By the consent of learned counsel appearing for both the parties, the matter is taken up for final disposal though it is posted for orders.

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MFA No. 4443 of 2018

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Being aggrieved by the judgment and award dated 16.02.2018 passed in MVC No.963/2017 by the learned Additional Senior Civil Judge and MACT, Srirangapatna, whereby the petition filed by the petitioners came to be allowed in part and a sum of Rs.1,00,000/- together with interest at 9% p.a., has been awarded on account of the death of their daughter Rashi Aradya, petitioners/appellants herein have filed this appeal.

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The parties are referred to as per their nomenclature before the Tribunal for the sake of

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convenience.

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The brief facts of the case are as below:

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That, on 28.01.2017 at about 11.30 a.m., in front of

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Petitioners house, situated at Old Santhemala, Gundlupet Town when the deceased Rashi Aradhya was playing in front of the 1st respondent's car, at that time, 1st respondent suddenly started his Fort Fiesta Car bearing No. KA-09-P-3131 and moved in rash and negligently manner

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MFA No. 4443 of 2018

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and dashed to Rashi Aradhya and caused accident. As a result, Rashi Aradhya has sustained grievous injuries. Immediately, she has been taken and got admitted to Government Hospital at Gundlupet. Then she was referred to K.R.Hospital Mysore for further treatment. While traveling to Mysore she succumbed to the injuries. It is further contended that they spent Rs.50,000/- towards funeral ceremony and incurred a sum of Rs.10,000/towards transportation of the dead body. They spent Rs.50,000/- towards funeral ceremony and incurred a sum of Rs.10,000/- towards transportation of the dead body.

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It is further contended by the petitioners that, Rashi Aradhya was aged about 1 year 3 months and hale and healthy prior to the accident and on account of her untimely death, they have lost love and affection of their daughter. The accident was occurred due to rash and negligent driving by the driver of the car belonging to 1st respondent which has been insured with the respondent No.2. Therefore,

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MFA No. 4443 of 2018

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respondent Nos.1 and 2 being owner and insurer of the offending vehicle are liable to pay compensation and prayed to allow the petition.

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In pursuance of notice issued by the Tribunal, respondent No.2 appeared through its counsel and filed written statement. Notice to Respondent No.1 through RPAD returned with a shara as refused, postal cover reflects the same and as such service is held sufficient and he was placed exparte.

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The 2nd respondent in its objection statement has contended that the petition filed by the petitioners is not maintainable either in law or on facts and petitioners have not produced any document to show that, they are residing within the jurisdiction of the court and the court has no jurisdiction to try the petition filed by the petitioners. But 2nd respondent admitted the fact that the Car bearing Reg.No.KA-09-P-3131 was insured with it as on the date of accident and contended that its liability is subject to the

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MFA No. 4443 of 2018

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terms and conditions of the policy. The 2nd respondent contends that, the driver of the Car bearing Reg.No.KA-09P-3131 was not holding valid and effective Driving license as on the date of accident and respondent No.1 did not intimate the fact of accident to office and therefore there is violation of sec.134(c) of IMV Act. The 2nd respondent contends that, the owner of the Car bearing Reg.No.KA-09P-3131 was not having valid R.C. as on the date of accident and that the amount claimed by the petitioners from the date of petition till the date of realization is abnormal, excessive, without any legal basis and against the law.

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Further, the 2nd respondent has also disputed the age of the deceased at the time of accident and the amount spent by the petitioners for funeral expenses of deceased and denied the nature of the accident that, in the event of the 1st respondent failed to contest by collusion with the petitioners, it may permitted to take all the defense which

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are available to the owner of the vehicle under provision 170 of MV.Act. The 2nd respondent contended that, if for

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MFA No. 4443 of 2018

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any reason if the court comes to the conclusion that the alleged accident is not due to sole negligence of the deceased, then contributory negligence has to be considered while awarding compensation. The 2nd respondent further contended that the deceased Rashi Aradhya fell down somewhere and colluding with the 1st respondent has created a cock and bull story and filed a false petition for wrongful gain and prayed to dismiss the petition.

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On the basis of the pleadings and contentions of the parties, the Tribunal has framed necessary issues for its consideration and after hearing the parties and considering the oral evidence of PW1 and documentary evidence of Exs.P1 to P11 available on record, proceeded to allow the petition in part and awarded a sum of Rs.1,00,000/- with interest at 9% p.a. from the date of petition till its payment and directed the insurance company to deposit the aid amount.

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MFA No. 4443 of 2018

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Being aggrieved by the same, the petitioners have

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approached this Court in this appeal seeking enhancement of compensation.

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Respondent No.2- insurance company has appeared in pursuant to the notice issued by this Court and notice to respondent No.1 is dispensed with vide order dated 24-8-2021.

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We have heard learned counsel Sri. Bhanu Prakash H.V., appearing for the appellants/petitioners and the learned counsel Sri. S.V. Hegde Mulkhand appearing for the Insurance Company/respondent No.2 through video conferencing.

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The fact that the accident occurred due to the actionable negligence of the car driver cannot be disputed as the deceased is a child aged 1 year 3 months. It was the bounden duty of the driver of the car to see whether there are any children in the vicinity of the car, before starting the car after parking. Though the insurance company has

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MFA No. 4443 of 2018

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contended that the deceased had sustained injuries somewhere else and a false case has been filed, the Tribunal has considered the same lucidly in detail and came to the conclusion that there is no material which probabilise

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the contention of the insurance company. The learned counsel for the respondent No. 1 insurance company has not urged this aspect before this court. His only contention is that the compensation granted by the Tribunal is adequate. Therefore, the question of liability, age of the deceased are not in dispute.

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The learned counsel appearing for the appellants submitted that the ratio laid down in the case of Kishan Gopal and another Vs. Lala and others¹ be applied and the compensation of Rs.5,00,000/- be awarded to the appellants.

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It is relevant to note that, the decision in Kishan Gopal's case lays down that, in case of death of a child

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aged 10 to 15 years, multiplier of 15 has to be adopted and

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1 AIR 2013 SCW 5037

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MFA No. 4443 of 2018

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the compensation of a sum of Rs.4,50,000/- be allowed by taking the multiplicand of Rs.30,000/- per annum. The Apex Court had also noticed that its earlier decisions regarding the compensation to be awarded in case of death of minor children need to be revised in view of fall of the rupee value over a period of years. It deviated from the structured formulae as applicable to a petition under Section 163A of M.V. Act, on the ground that the notional income of Rs.15,000/- per annum need to be revised owing to the passage of time from 1994 to 2013 when the said decision was rendered. In the case on hand, the deceased is a child aged one year three months and therefore, the ratio in Kishan Gopal's case cannot be applied mutatis mutandis . However, the ratio that the notional income has to be commensurate with the time need to be borne in mind. It is significant to note that the decision of the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others² recognize such revision of the income and other heads of the compensation

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2 AIR 2017 SC 5157

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MFA No. 4443 of 2018

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to be commensurate with the rate of inflation that would

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take place.

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In an accident involving the death of the child,

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the parents suffer great shock and agony and it is one of the unparelled pain in their life time. The jurisdiction world over have recognize that the value of a child's consortium

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far exceed the economic value of the compensation awarded in the case of death of a child. Most of the jurisdictions allow compensation to be awarded for loss of consortium in case of death of a child.

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In the judgment of the Apex Court in the case of Kaushlya Devi Vs.Shri Karan Arora and others³ (CDJ 2007 SC 596), at para 6 it is held as below:

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"The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of

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3 (CDJ 2007 SC 596)

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MFA No. 4443 of 2018

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damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Through by use of the expression "which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The express "just" denotes equitability, fairness and reasonableness and non-arbitrary, if it is not so it cannot be just."

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Keeping in mind the emerging trend that the compensation has to be commensurate with the economic conditions and the rate of inflation etc., the just and reasonable compensation has to be determined by this Court. In our considered opinion, the grant of compensation in case of death of a minor child has to include the loss of love and affection to the parents and other possible heads as applicable. In Pranay sethi's case, the Apex Court has held that, the loss of consortium

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MFA No. 4443 of 2018

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or love and affection has to be capped at Rs.40,000/- and the loss of estate and the funeral expenses have to be capped at Rs.15,000/- each. It was also observed that every three years, there shall be an increase of 10% under these heads. In other words, the petitioners No. 1 and 2 being the parents are entitled for the compensation of Rs.88,000/- under the head of loss of love and affection and a sum of Rs.33,000/- under the heads of loss of estate and funeral expenses. Thus, a sum of Rs.1,21,000/- has to be granted under the above heads.

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If we take into consideration the ratio laid down in Kishan Gopal as well as Pranay Sethi 's case, there shall have to be increase in the other remaining heads also. Since the deceased child was aged one year three months, it is not possible either for the Tribunal or for this Court to consider he notional income and to apply the method of structured formulae adopting a multiplier of 15. A child

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aged one year three months cannot be presumed to be assisting the parents in augmenting the income to the

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MFA No. 4443 of 2018

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family. Therefore, in our considered view, it would be proper to award a global compensation of Rs.5,00,000/which would be inclusive of the sum of Rs.1,21,000/- as calculated above. Thus, the impugned award needs to be

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modified in above terms.

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