IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT MFA N0.2900 OF 2015 (MV) BETWEEN 1 . MR MOHAMMED IQBAL S/O HASANABBA, AGED 36 YEARS, 2 . SMT.ZUBAIDA W/O MOHAMMED IQBAL, AGED 32 YEARS, R/O AMMEMBALA HOUSE, BALIYARU VILLAGE AND POST, MANGALORE TALUK.
(BY SRI B R GURUPRASAD, ADVOCATE) AND 1 . THE UNITED INDIA INSURANCE CO LTD 146N, KUMARA COMPLEX, TIRUCHINAMGUDU (TIRUCHENGODU) REPRESENTED BY ITS MANAGER.
2 . M/S. MALATHI RING SERVICE MANAGING PARTNER-R SELVAN, NO.19-1, 5TH CROSS ROAD, 6TH MAIN ROAD, N.R.COLONY, BANGALORE.
...APPELLANTS …RESPONDENTS (BY SRI C SHANKAR REDDY, ADVOCATE FOR R1) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:21.7.2014 PASSED IN MVC NO.614/2011 ON THE FIL OF THE III ADDITIONAL DISTRICT & SESSIONS JUDGE MEMBER, MACT- 4,D.K., MANGALORE,PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimants are in appeal under Section 173 (1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded under the judgment and award dated 21.07.2014 in M.V.C.No.614/2011 on the file of the III Addl. District & Sessions Judge & MACT-IV, D.K., Mangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one master Mohammed Zahir, aged about 7 years in a road traffic accident. The claimants are the parents of deceased child. It is stated that on 26.01.2011 the deceased along with his uncle Mohammed Siddiq were waiting for the bus near Valachi Madrasa in Arkula Village on NH48 in order to go to B.C.Road, at about 2.30 p.m., a lorry bearing registration No.KA-01-D9322 came in rash and negligent manner and dashed to the deceased. Immediately the deceased was taken to Highland Hospital, Mangalore, where he was treated, but on the next day he succumbed to the injuries. It is stated that the deceased was studying in 2nd standard in St.Joseph’s Higher Primary School, Kankanady, Mangalore.
3. On issuance of notice, respondent No.1 remained unrepresented and respondent No.2 Insurer appeared and filed objections denying the claim petition averments and also stated that the claim is exorbitant and excessive. Further it is that the accident occurred due to the negligence of the deceased but admitted the policy. The claimant No.2 mother of the deceased examined herself as PW1 apart from marking Ex.P1 to P18. The respondents have not led any evidence, but marked Ex.R1 copy of the Insurance Policy. The Tribunal on appreciating the material on record awarded total compensation of Rs.3,05,000/- with interest at 6% p.a. from the date of petition till deposit, under the following heads:
1. Loss of dependency Rs.1,50,000/-
2. Loss of future prospectus Rs.75,000/-
3. Loss of love and affection Rs.75,000/-
4. Funeral and obsequies expenses Rs.5,000/-
Total Rs.3,05,000/-
4. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court in this appeal.
5. Heard the learned counsel for the appellant and respondent and perused the material on record, 6. The learned counsel for the claimant would submit that the claimants have lost their son aged about 7 years. The compensation awarded by the Tribunal is on the lower side. It is his submission that the parents have lost love and affection of their son for ever and they would not get back their son. The death of child cannot be measured in monetary terms. He further submits that deduction of 1/3rd would not arise in the case of minor. As such the Tribunal committed an error in deducting 1/3rd of income in loss of dependency. Further he submits that the deceased hospitalised for a day and the claimants have spent Rs.25,000/- on medical expenses. They have produced Ex. P12 to P18 medical bills. Thus prays for enhancement of compensation.
7. Per contra, learned counsel for the respondent No.2 – Insurance Company would submit that the quantum of compensation awarded by the Tribunal is just compensation, which requires no interference.
8. On hearing the learned counsel for the parties and on perusal of the material on record, the only point that arise for consideration in this appeal is, whether in the facts and circumstances of the case, the claimants would be entitled to the enhanced compensation? Answer to the above point is in the affirmative, for the following reasons:
9. The accident occurred on 26.01.2011and the death of minor child is not in dispute. In this appeal, the claimants are seeking enhancement of compensation. Admittedly, the chilled was aged 7 years and was studying in 2nd standard in St. Joseph’s Hgiher Primary School, Kankanady, Mangalore. The Tribunal has rightly taken the notional income of Rs.15,000/- p.a., but committed an error in deducting of 1/3rd income towards personal expenses. But in the case of a minor deduction towards personal expenses would not arise, since the compensation to be awarded is not for loss of dependency but for loss of life. Any amount of compensation would not compensate the appellants towards the death of a minor child. Further, it is on record that the accident had taken place on 26.01.2011, whereas the deceased died on 27.01.2011 and the appellants have spent nearly Rs.25,000/- for treatment as per Ex.P12 to Ex.P18. Thus, the claimants would entitled for modified enhanced compensation as follows:
10. Thus the claimant would be entitled for enhanced compensation of Rs.4,05,000/- with interest at 6% per annum from the date of petition till realisation as against Rs.3,05,000/- awarded by the Tribunal.
11. The judgment and award is modified to the above extent. Accordingly, appeal is allowed in part.
Sd/- JUDGE KLY/