RAMANNA v. T.V.VEERABHADRAIAH

Judgment

1. The present application I.A.No.1/2017 is filed seeking to condone the delay of 1552 days in filing the appeal. The application is annexed with an affidavit filed by the appellant/claimant being the father of the deceased, explaining the reasons for the delay that has occasioned. 2 NC: 2026:KHC:34429-DB MFA No. 4142 of 2017 HC-KAR

Initially, a claim petition was filed by both the parents of the deceased boy. However, the mother of the deceased boy died during the pendency of the claim petition. Hence, the present appeal is filed by the father of the deceased boy.

2. The appellant No.1/claimant has sworn an affidavit before this Court on 29.05.2017 stating that the deceased was his only son. The appellant No.1/claimant submits that they were extremely poor and did not have the wherewithal to file the appeal. It is stated that though the learned Tribunal had awarded a sum of Rs.2,25,000/-, it took some time before the Insurance Company could deposit the award amount. They were waiting for the deposit of the award amount by the Insurance Company. They had also filed an Execution Petition No.206/2016 in the meantime. Thus, there was a delay in filing this appeal. It is further submitted that the delay in filing the appeal was unintentional and due to bonafide reasons. 3 NC: 2026:KHC:34429-DB MFA No. 4142 of 2017 HC-KAR

3. Learned counsel for the respondent No.3/Insurance Company submits that although no ground for condonation of delay has been made out, in the interest of justice, the application be allowed subject however to the condition that no interest be imposed on the respondent No.3/Insurance Company for the period of delay, in the event of any enhancement.

4. In view of what is stated above, I.A.No.1/2017 is allowed. In the event that the amounts are enhanced, the appellant/claimant will not be awarded interest for the period of 1,552 days of delay in filing the appeal. This application stands disposed of.

5. Although this matter is listed for Admission today, given the limited issues involved, the appeal has been finally heard and decided with the consent of the parties, today itself.

6. This appeal seeks to challenge the Judgment and Award dated 30.10.2012, in MVC No.367/2011, passed by the Fast 4 NC: 2026:KHC:34429-DB MFA No. 4142 of 2017 HC-KAR Track-I & Addl. MACT, Tumkur (hereinafter referred to as the ‘Impugned Award’). By the Impugned Award, the learned Tribunal has awarded compensation to the appellant/claimants in a sum of Rs.2,25,000/-, along with interest at 6% per annum from the date of petition till its realisation.

7. The challenge in the present appeal has been raised by the appellant/claimant seeking for enhancement of the compensation awarded by the learned Tribunal.

8. Notice to respondent Nos.1 and 2 being the driver and owner of the offending vehicle, was dispensed with by this Court by an order dated 08.08.2023.

9. The brief facts of the case are that on 10.01.2011, the deceased i.e., son of the appellant/claimant was walking on the road with his elder brother. At about 06.00 p.m., a tractor-trailer bearing Registration No.KA-40/T-1824-1825 stated to be driven in a rash and negligent manner, came and hit the deceased from the rear side. Due to the impact, 5 NC: 2026:KHC:34429-DB MFA No. 4142 of 2017 HC-KAR the deceased sustained grievous injuries and succumbed to his injuries on the way to the hospital.

10. A claim petition seeking compensation was filed by the parents of the deceased under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘MV Act’). It was stated in the petition that the deceased was 15 years old at the time of the accident and was a coolie who was contributing to the income of his family.

10.1 Notice of the petition was served to the respondents. Respondent Nos.2 and 3 being the owner of the tractor- trailer and the Insurance Company respectively, filed their written statements. There was no appearance on behalf of respondent No.1/driver in spite of service of notice. Hence, he was proceeded with exparte. The respondents denied the rash and negligent driving and also laid the blame for the accident on the deceased himself.

11. In order to prove their case, the appellant/claimant being the father of the deceased, examined himself as PW.1 6 NC: 2026:KHC:34429-DB MFA No. 4142 of 2017 HC-KAR while an eye-witness was examined as PW.2. Six documents were marked behalf claimants/appellant being the copy of the FIR (Ex.P1), complaint (Ex.P2), post-mortem report (Ex.P3), charge- sheet (Ex.P4), death certificate of the claimant No.2 (Ex.P5) and the Genealogy (Ex.P6). No witnesses were examined on behalf of the respondents but a copy of the Insurance policy was marked as Exhibit R1.

12. During the pendency of the proceedings before the Trial Court, the petitioner No.2 i.e., the mother of the deceased passed away and it was stated that the petitioner No.1 was her only legal heir who is already on record.

13. The learned Tribunal after examining the evidence placed before it, found that a criminal case was registered against the driver of the tractor-trailer and based on the FIR, the charge-sheet and the post-mortem report, it was held that the negligence of the driver of the tractor-trailer was proved. In addition, given that the deceased was aged 7 NC: 2026:KHC:34429-DB MFA No. 4142 of 2017 HC-KAR about 15 years at the time of his death, the learned Tribunal assessed his income based on guesswork, i.e., notional income relying on a judgment of this Court in S. Sanaulla and another vs. A.R. Shivashankar and others1 and the learned Tribunal awarded global compensation in a sum of Rs.2,25,000/- along with interest at 6% per annum from the date of petition till the date of realization.

14. As stated above, the challenge in the present appeal is by the claimant No.1. Learned counsel for the appellant/claimant submits that compensation has not been awarded in accordance with the settled legal principles. He submits that it is now settled law that in the case of death of a minor child, the notional income or the minimum wages of a skilled worker are to be awarded.

15. The learned counsel respondent No.3/Insurance Company submits that at present notional income is awarded in the case of death of a minor child. He 1 ILR 2008 KAR 1896 8 NC: 2026:KHC:34429-DB MFA No. 4142 of 2017 HC-KAR however submits that the Impugned Award was passed in the year 2012 and thus the recent law cannot be made applicable.

16. Based on the contentions of the parties the question that arises for determination before this Court is, whether the appellant/claimant is entitled for enhancement of the compensation amount awarded by the learned Tribunal and if so, in what amount?

17. As already stated above, the challenge by the appellant/claimant is on the award of the notional income. It is not disputed that the notional income for the year 2011, as per the Notional Income Chart of the Karnataka State Legal Services Authority is Rs.6,500/- p.m. Thus, the notional income has to be calculated at Rs.6,500/- per month.

18. The award of compensation for death in the case of a minor child, is no longer res-integra. The Supreme Court 9 NC: 2026:KHC:34429-DB MFA No. 4142 of 2017 HC-KAR has crystallized the law applicable in the case of death of a minor in a motor vehicle accident in (i) Minor Roopa D/o. Basappa vs. Divisional Manager, New India Assurance Company Limited2(ii) Master Ayush vs. Branch Manager, Reliance General Insurance Company Ltd. And Another3.

18.1 The Supreme Court in Master Ayush case while discussing the entitlement of the compensation in the case of a minor child held that, minimum wages in the State where the accident occurred of a skilled worker as of the date of the accident, that compensation would be assessed thereon on the assumption that the deceased would have been able to earn after attaining maturity. The relevant extract is set out below: “9. In the present appeal, the minimum wages for 2010- 11 in the State of Karnataka for employments not covered under any of the scheduled employments can be ascertained from the following extract of notification for minimum wages published in the Gazette on 19-2-2007: ORDER (i) The appeal is allowed in part; 22 NC: 2026:KHC:34429-DB MFA No. 4142 of 2017 HC-KAR (ii) The Judgment and Award dated 30.10.2012, in MVC.No.367/2011, passed by the Fast Track-I & Addl. MACT, Tumkur, is modified, awarding total compensation of Rs.10,73,800/- along with interest at the rate of 6% per annum as awarded by the learned Tribunal from the date of petition till the date of realization. However, the appellant/claimant shall not be entitled to interest for the period of delay of 1,552 days; (iii) The remaining portion of the Impugned Award of the Tribunal remains undisturbed; (iv) The respondent No.3/Insurance company is directed to pay the enhanced compensation with interest as applicable and as awarded by the Tribunal within eight weeks from today; (v) On such deposit of compensation, the same released favour of 23 NC: 2026:KHC:34429-DB MFA No. 4142 of 2017 HC-KAR appellant/claimant, on filing of an appropriate application for withdrawal of the enhanced amount; (vi) The amounts deposited by the Insurance company, if any, shall be transferred to the concerned Tribunal for disbursement. (vii) The Registry is directed to draw the modified Award accordingly; (viii) The Registry is directed transmit a copy of this judgment along with its records to the concerned Tribunal forthwith; (ix) No order as to costs. Sd/- (JAYANT BANERJI) JUDGE Sd/- (TARA VITASTA GANJU) JUDGE KS List No.: 1 Sl No.: 2 24