Mrs. Jareena Vs Mr. Abdul Naseer

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 17.11.2021 PASSED IN MVC NO.369/2019 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the claimants being aggrieved by the judgment and award dated 17^th November 2021, passed by the Addl.Senior Civil Judge and Addl.M.A.C.T., Udupi, (for short `Tribunal'), in MVC No.369/2019, seeking for enhancement of compensation.

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For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

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HC-KAR

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The brief facts of the case are that, on

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10.11.2018, at about 12.00 noon, deceased Affiya Banu was playing in front of her house along with other children. The driver of a lorry bearing registration No.KA.21/8109 negligently parked the lorry opposite to the house of deceased. The said lorry started moving and it ran over the said child, as a result of which, she sustained grievous injuries. Immediately, her parents took her to the hospital at Udupi and it was informed that the said child was brought dead. The child was aged 6 years and was studying in L.KG, she was hale and healthy. With these reasons, they prayed to award compensation of Rs.10 lakhs.

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Respondent No.1 is the owner and respondent No.2 is the insurer of the offending lorry. Both of them appeared before the Tribunal, but they did not file their written statement.

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HC-KAR

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The claimants to prove their case examined

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claimant No.1 as PW-1 and marked 7 documents, as per Exs.P-1 to P-7. Respondents have examined one witness as RW-1 and marked Exs.R-1 and R-2.

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The Tribunal after hearing both parties and appreciating the evidence on record, awarded compensation of Rs.3,00,000/- with interest at the rate of 6% p.a. Being dissatisfied by the amount of compensation awarded, the parents of the deceased filed the present appeal seeking enhancement of the compensation.

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7. Heard the arguments of the learned counsel appearing for the claimants as well as learned counsel for respondent No.2.

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8. The learned counsel for the appellants contended that in a recent judgment of Hon'ble Apex Court, in Civil Appeal No.3595/2024, in the case of Thangavel and others -vs- The Managing Director, Tamil Nadu State

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Transport Corporation Limited, which refers to death of

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HC-KAR

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minor child, income of the deceased was taken as Rs.30,000/- p.a., and calculated the multiplier on the basis of age of younger parent and awarded in all the compensation of Rs.8,70,000/-. The said principle of law is applicable to the facts of the present case. Therefore, prayed to enhance the compensation as ordered in the above said Thangavel's case (supra).

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9. Learned counsel for the respondent-insurer contended that the amount of compensation awarded in the above said judgment is not applicable to the facts of the present case. He submits that, in that case, the age of the deceased was 10 years and in the present case, the child was aged about 6 years. Relying upon the judgment of Hon'ble Apex Court in the case of Kishan Gopal and another -vs- Lala and others,¹ learned counsel for the respondent submits that, at the most the compensation awarded in the above said judgment can be considered,

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1 2014 (1) SCC 244

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HC-KAR

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since in the above said judgment also, the age of the deceased was 10 years.

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10. The fact of the accident and the death of the child is also not in dispute. The remaining facts were not challenged by the respondents before the Tribunal. Hence, undisputedly, the deceased child was aged 6 years and she was studying in L.KG. The Tribunal has taken the notional income of the deceased as Rs.15,000/- per month as per Schedule-II of unamended Motor Vehicles Act.

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11. In the case of Kishan Gopal's case (supra), the

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Hon'ble Apex Court has taken the income of the minor aged about 10 years as Rs.30,000/-, on the ground that, the said Schedule to Section 163A of the Motor Vehicles

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Act was drafted in the year 1994 and at that time, the income of an non-earning members was taken as Rs.15,000/- p.a. The said Schedule was not at all amended and amounts were not enhanced for about 20 to 25 years. Considering the same, the Hon'ble Apex Court

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HC-KAR

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has taken the notional income of deceased minor aged about 10 years as Rs.30,000/- per annum.

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12. Even the Kishan Gopal's case (supra), was decided in the year 2013 i.e., about 12 years back. Due to inflation, money value has been reduced to a large extent. Under these circumstances, it is deemed fit that income of a non-earning member can be taken as Rs.40,000/- and on that basis, the compensation requires to be considered in the present case.

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13. In this case, as per the cause title of the impugned judgment, age of the youngest parent i.e., mother was 36 years. Therefore, the multiplier applicable between the age group of 36 to 40 years is `15' and the same could be applied to the present case.

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14. Since the deceased was non-earning members,

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question of deduction of portion of the amount towards personal expenses does not arise. Therefore, the compensation under the head `loss of dependency' is

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HC-KAR

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calculated as Rs.40,000/- x 15 = Rs.6 lakhs. The claimants are also entitled for compensation under conventional heads i.e., loss of consortium and filial love and affection, funeral expenses and loss of estate. Accordingly, the claimants are entitled to following amount

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of compensation :

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Particulars	Amount in Rs.
Loss of dependency	6,00,000/-
(Rs.40,000/- x 15 )
Loss of consortium	80,000/-
Funeral expenses	15,000/-
Loss of estate	15,000/-
Total	7,10,000/-
Amount awarded by the Tribunal	3,00,000/-
Enhancement-	4,10,000/-

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Thus, the claimants are entitled to enhanced

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compensation of Rs.4,10,000/- with interest at 6% p.a. on the enhanced amount from the date of petition till its realization.

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HC-KAR

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It is not in dispute that respondent No.1 is the

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owner and respondent No.2 is the insurer of the offending vehicle. Therefore, both the respondents are jointly and severally liable to pay the compensation.

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For the aforesaid discussions, I proceed to pass the following:

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ORDER

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i) The Appeal is allowed in part .

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ii) The judgment and award dated 17.11.2021 , passed in MVC.No.369/2019, by the Addl.Senior Civil Judge and Addl. M.a.C.T., Udupi, stands modified.

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iii) The claimants are entitled to enhanced compensation of Rs.4,10,000/- with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization excluding the delayed period of 154 days.

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iv) The respondent No.2 shall deposit the amount within a period of six weeks from the date of award.

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