Karnataka High Court

Sri Mohammed Saleem vs K M Ramakrishna on 6 January, 2023

Bench: K.Somashekar, C M Joshi

                                             -1-
                                                         MFA No. 14 of 2020
                                                   C/W MFA No. 1771 of 2020




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 6TH DAY OF JANUARY, 2023

                                        PRESENT
                        THE HON'BLE MR JUSTICE K.SOMASHEKAR
                                             AND
                          THE HON'BLE MR JUSTICE C M JOSHI
                MISCELLANEOUS FIRST APPEAL NO. 14 OF 2020 (MV-D)
                                             C/W
               MISCELLANEOUS FIRST APPEAL NO. 1771 OF 2020(MV-D)
               IN MFA NO.14/2022


               BETWEEN:

               1.   SRI MOHAMMED SALEEM
Digitally           S/O MOHAMMED JANI
signed by T S
NAGARATHNA          AGED ABOUT 38 YEARS
Location: High
Court of       2.   SMT. MUBARAK BEGUM
Karnataka           W/O MOHAMMED SALEEM
                    AGED ABOUT 32 YEARS

               3.   MOHAMMED SAIF
                    S/O MOHAMMED SALEEM
                    AGED ABOUT 12 YEARS

               4.   AYESHA SIDDIQUA
                    D/O MOHAMMED SALEEM
                    AGED ABOUT 9 YEARS

               5.   MOHAMMED USMAN
                    S/O MOHAMMED SALEEM
                    AGED ABOUT 3 YEARS

                    ALL ARE R/AT NO.04/05,
                    BROADWAY SLAUGHTER
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                                        MFA No. 14 of 2020
                                  C/W MFA No. 1771 of 2020




     HOUSE,G.STREET,
     SHIVAJINAGAR
     BANGALURU - 560 051.

     APPELLANT NO.3 TO 5 ARE MINORS
     REP. BY THEIR NATURAL
     GUARDIAN AND NEXT FRIEND
     I.E. SMT. MUBARAK BEGUM
     W/O MOHAMMED SALEEM
     AGED ABOUT 30 YEARS

                                             ...APPELLANTS

(BY SRI. MOHAMMED NAWAZ KHAN, ADVOCATE)

AND:

1.   K. M. RAMAKRISHNA
     S/O NOT KNOWN,
     AGE MAJOR
     K.B.HOSAHALLI,
     NARASAPURA HOBLI
     HOSAKOTE TALUK
     KOLAR DISTRICT - 573 125
     OWNER OF VEHICLE BEARING
     NO. KA-01-B-9432 TEMPO 407

2.   MR. ARMUGHAM K
     S/O KOPPAN, AGE 31 YEARS,
     R/AT NO.1, 3RD MAIN ROAD,
     1ST CROSS, MALLESHPALYA
     NEAR NITHIN BAKERY
     BENGALURU CITY - 560 004
     KARNATAKA
     (OWNER OF TOYOTA ETIOS
     CAR BEARING NO. KA-03-AD-4845)

3.   CHOLAMANDALAM MS
     GENERAL INS. CO.LTD.,
     DARE HOUSE 2ND FLOOR,
     NO.2, S C BOSE ROAD,
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                                       MFA No. 14 of 2020
                                 C/W MFA No. 1771 of 2020




     CHENNAI - 600 001.

                                          ...RESPONDENTS


(BY SMT.SUGUNAMMA & SUGUNA R REDDY, ADVOCATE FOR R1
     (THROUGH VC);
     SRI.MURALIDHAR NEGAVAR, ADVOCATE FOR R3;
     NOTICE TO R2 IS HELD SUFFICIENT VIDE ORDER
     DTD.15.09.2022)

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED           11.10.2019
PASSED IN MVC NO.245/2017 ON THE FILE OF THE MEMBER,
MACT, XVI ADDL, JUDGE, COURT OF SMALL CAUSES,
BENGALURU PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION       AND     SEEKING   ENHANCEMENT       OF
COMPENSATION.

IN M.F.A.No.1771/2020

BETWEEN:

CHOLAMANDALAM MS GIC LTD.
REPRESENTED BY ITS DY MANAGER,
DARE HOUSE, 2ND FLOOR
NO.2, SC BOSE ROAD,
CHENNAI, TN - 600 001.

ALSO AT
6TH FLOOR, GOLDEN HEIGHTS
BUILDING,
NEAR SUJATHA THEATRE,
RAJAJI NAGAR, BENGALURU - 10`
                                        ...APPELLANT

(BY SRI MURALIDHAR N , ADVOCATE)

AND:

1.     MOHAMMED SALEEM
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                                       MFA No. 14 of 2020
                                 C/W MFA No. 1771 of 2020




     S/O MOHAMMED JANI,
     AGED ABOUT 36 YEARS

2.   SMT.MUBARAK BEGAUM
     W/O MOHAMMED SALEEM
     AGED ABOUT 30 YEARS

3.   MOHAMMED SAIF,
     S/O MOHAMMED SALEEM,
     AGED ABOUT 10 YEARS

4.   AYESHA SIDDIQUA
     D/O MOHAMMED SALEEM
     AGED ABOUT 7 YEARS

5.   MOHAMMED USMAN,
     S/O MOHAMMED SALEEM
     AGED ABOUT 2 YEARS

     RESPONDENT NO.1 TO 5
     ALL ARE RESIDING AT 4/05,
     BROADWAY, SLAUGHTER HOUSE,
     G STREET, SHIVAJINAGAR
     BENGALURU-560051
     RESPONDENT NO.3 TO 5 ARE MINORS
     REP. BY NATURAL GUARDIAN
     MOTHER I.E RESPONDENT NO.2

6.   K.M.RAMAKRISHNA
     S/O NOT KNOWN
     MAJOR, K.B. HOSAHALLI
     NARASAPURA HOBLI,
     HOSAKOTE TALUK
     KOLAR DISTRICT- 563 133.

7.   MR.ARMUGHAM.K
     S/O KOPPAN,MAJOR,
     R/AT NO.1
     3RD MAIN ROAD,
     1ST CROSS
     MALLESHPALYA
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                                               MFA No. 14 of 2020
                                         C/W MFA No. 1771 of 2020




     NEAR NITHIN BAKERY
     BENGALURU - 560 075.
                                           ...RESPONDENTS

(BY SRI.NASRULLAH KHAN, ADVOCATE FOR R1 & R2;
     R3-R5 ARE MINOR REP. BY R-2;
     SMT.SUGUNA R REDDY , ADV. FOR R6; (THROUGH VC);
     NOTICE TO R7 IS DISPENSED WITH VIDE ORDER
     DTD.05.10.2021)

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED           11.10.2019
PASSED IN MVC NO.245/2017 ON THE FILE OF THE MEMBER,
MACT, XVI ADDL, JUDGE, COURT OF SMALL CAUSES,
BENGALURU PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION.

     THESE APPEALS HAVING BEEN HEARD THROUGH VIDEO
CONFERENCE AND RESERVED FOR JUDGMENT COMING ON FOR
PRONOUCNEMENT OF JUDGMENT THIS DAY, C.M.JOSHI J.,
DELIVERED THE FOLLOWING:

                           JUDGMENT

Being aggrieved by the judgment and award dated

11.10.2019 passed in MVC No.245/2017 by the learned XVI

Additional Judge, Court of Small Causes and MACT, Bengaluru

city (SCCH-14), whereby the petition filed by the petitioners on

account of the death of Master Mohammed Asif, came to be

allowed in part awarding compensation of Rs.4,50,000/-

together with interest at 7%, petitioners have approached this

Court in MFA No.14/2020 seeking enhancement and respondent

MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

No.3-Insurance company has approached this Court in MFA

No.1771/2020 to modify the same urging various grounds.

2. The parties are referred to as per their nomenclature

before the Tribunal for the sake of convenience.

3. The brief facts of the case are as below:

That on 28-09-2016 at about 3.30 p.m. the deceased

Master Mohammed Asif, son of Mohammed Saleem was

travelling in the Auto bearing Reg. No.KA-05-A-9766 along with

his father, mother, brothers and sister and the same was driven

by his father on Kolar-Bengaluru road and when they reached

near Gottipura Gate NH-75, a TATA 407 tempo bearing Reg.

No.KA-01-B- 9432 driven by its driver in a rash and negligent

manner dashed against said auto from behind and also another

car bearing Reg. No.KA-03- AD-4845 came from behind and

dashed to the said TATA 407 tempo. Due to which, the said auto

capsized and its inmates i.e. petitioner No.1 and 2 and their

children sustained severe injuries and their son Mohammed Asif

sustained fatal injuries. Immediately he was shifted to MVJ

hospital, but he succumbed to the fatal injuries on the way to

hospital. The postmortem was conducted at MVJ hospital. Then

MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

they have performed last rites of the deceased by spending more

than Rs.40.000/- towards transportation of dead body and

funeral expenses.

It is the further case of the petitioners that, deceased was

aged about 12 years and was studying in 6th Standard at Mayor

Public School, D.J. Halli, Bengaluru. Due to the death of

deceased, they are put into mental agony and shock. The

accident has occurred due to the negligence on the part of driver

of the offending Tata 407 tempo. The Hosakote police have

registered a case in Crime No.530/2016 for the offences u/s

279.337 & 304-A of IPC. The petitioners further contend that, as

per the information furnished by the Jurisdictional police, the 1st

respondent is the R.C. owner of the TATA 407 tempo and they

could (not) get the address of insurance company of said tempo

from police. Hence, petitioners have sought for compensation of

Rs.30,00,000/- with interest and cost.

4. In response to the notice issued by the Tribunal,

respondent No. 1 -owner of tempo 407 and respondent No.3-

insurer of Etios car have appeared through their respective

counsels and filed separate written statements. Whereas,

MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

respondent No.2-owner of Etios car has not appeared before this

Tribunal inspite of issuance notice, as such he was placed

exparte.

5. The 1st respondent, owner of the Tempo 407 has

contended that the petition is not maintainable either in law or

on facts of the case. He denied all the petition averments

including the accident, manner in which the accident took place

and also rash and driving by the driver of tempo and as well as

the car and also denied the age of deceased and he was

studying 6th standard at the time of accident. He also denied

that the petitioners have spent towards last rites of deceased. It

is the contention of 1st respondent that, the alleged accident

has occurred solely due to the rash and negligent driving by the

driver of the car who touched the 407 tempo bearing Reg.

No.KA-01-B-9432, though he tried his level best to avoid

touching the said vehicle, as such there is no rashness or

negligence on his part while driving his 407 tempo, as such he

dashed his vehicle as against the auto. He further contended

that the compensation claimed by the petitioners is excessive

and exorbitant and prayed to dismiss claim petition with cost.

MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

6. 3rd respondent-Insurance Company in its written

statement has contended that the petition is not maintainable

either in law or on facts of the case. However, it has admitted

that it is the insurer of Car bearing Reg. No.KA-03-AD-4845 and

the liability if any of this respondent is subject to the terms and

conditions of the policy. It has further denied the accident and

manner in which the accident took place. It was contended that.

since the petitioners claimed that the alleged accident has

occurred due to the rash and negligent driving by the driver of

407 tempo, this respondent is neither necessary nor proper

party for adjudication of the case. The driver of offending car

was not possessing valid and effective driving license and also it

has no valid permit and FC as on the date of accident, as such

the owner of offending car has committed breach of terms and

conditions of the policy. It was further contended that the FIR

and complaint has been lodged against the driver of 407 tempo

and registered the case in Crime No.530/2016 for the offences

u/s 279, 337 & 304-A of IPC against the offending tempo driver,

as such the accident has occurred due to sole negligence on the

part of driver of offending tempo and in fact, the driver of car

was no way responsible for the cause of alleged accident and

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MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

there is no nexus between the car and auto and death of

Mohammed Asif. It has denied the relationship of petitioners with

deceased and also denied the age of deceased and he was

studying 6th standard at the time of accident and the

compensation claimed by the petitioners is excessive and

exorbitant and prayed to dismiss claim petition with cost.

7. On the basis of the pleadings and contentions of the

parties, the Tribunal has framed necessary issues for its

consideration and after considering the oral evidence of PW1 and

documentary evidence of Exs.P1 to 14 on behalf of petitioners

and the oral evidence of RWs 1 and 2, partly allowed the

petition holding that petitioners are entitled for compensation of

Rs.5,00,000/- including all the heads and that petitioners are

entitled for 90% of the compensation out of total compensation

and awarding a sum of Rs.4,50,000/- together with interest at

7% p.a. from the date of the petition till its realization after

deducting 10% towards contributory negligence of PW1 and

directed respondent No.1 to pay 50% of the total compensation

and also directed the respondent No.3 to pay the remaining

50% of the compensation.

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MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

8. Being aggrieved by the same, the petitioners have

preferred MFA No.14/2020 seeking enhancement of

compensation and Insurance Company of the Toyota Etios Car

has preferred MFA No.1771/2020 to modify the same.

9. On issuance of notice by this Court, respondent No.1

and respondent No.3 in MFA No.14/2020 and respondent Nos.

1 to 5 and 6 in MFA No.1771/2020 have appeared through their

counsel.

10. Learned counsel appearing for the petitioners Sri

Mohamad Nawaz Khan, has contended that the Tribunal has

erred in assessing the compensation payable to the claimants

and it has not considered the compensation under the head of

love and affection, transportation of the body, loss of

dependency etc., and it ought to have awarded compensation

resorting to the multiplier method and therefore, the

compensation arrived at by the Tribunal at Rs.5,00,000/- is

incorrect. Secondly, he contends that the Tribunal also erred in

holding that petitioner No.1, has also contributed towards the

negligence to the extent of 10%, even though there is no

material on record to show the same.

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MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

11. The learned counsel appearing for the Insurance

Company has contended that the Tribunal erred in attributing

45% of the negligence towards the car driver when the evidence

showed that the car had dashed to 407 tempo after the 407

tempo had dashed to the auto rickshaw and turned it turtle

wherein the victim who was inmate died. Therefore, he

contends that the collision between the car and 407 tempo was

subsequent to the collision between the auto rickshaw and 407

tempo and therefore, no negligence could have been attributed

to the car driver.

12. We have heard the submissions of both the counsels

in detail and have bestowed our attention to the evidence on

record. The questions that are invovled in the present appeals

are:

(i) Whether the compensation awarded by the

Tribunal is just and proper?

(ii) Whether the Tribunal is justified in attributing

45% of negligence to the car driver?

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MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

13. Regarding the compensation assessed by the Tribunal,

it is submitted by the counsel for the petitioners that, deceased

boy is aged 12 years and was studying in 6th Standard and

therefore, the notional income has to be considered and by

applying the principles laid down in the case of National

Insurance Company Limited vs. Pranay Sethi and others1, the

compensation has to be awarded and the Tribunal has erred in

calculating the same.

14. The Tribunal in the impugned judgment has relied

upon the decision in the case of Kishan Gopal Vs. Lala and

others2 wherein, the Apex Court has taken the notional income

of the deceased boy who was assisting his father in agricultural

operations at Rs.30,000/- per annum and applied the multiplier

of 15 referring to the age of the parents and granted a

compensation of Rs.4,50,000/- and added a sum of Rs.50,000/-

towards love and affection etc., and total sum of Rs.5,00,000/-

was granted. In view of the decision in the case of Pranay Sethi

(supra), while applying the multiplier, the age of the deceased

has to be taken.

AIR 2017 SC 5157

2013 AIR SCW 5037

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MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

15. Coming to the second point raised in these appeals, it

is appropriate to note that the decision of this Court in the Case

of Ganesh Vs. Sayed Munned Ahmed3 and in the case of

K.S.R.T.C. Vs. Arun @ Arvind and others4 which

emphatically lay down that, in case of composite negligence

petitioner is at liberty to claim compensation against any one of

the tortfeasor. Both these decisions are reiterated and confirmed

by the Apex Court in Khenyei Vs. New India Assurance Co.

ltd. and others5, wherein, it is held that, in case of composite

negligence, the claimant can go against any one of the tortfeasor

and the torfeasors are jointly and severally liable to pay the

compensation. If the multiple tortfeasors are brought before the

Tribunal, the Tribunal has to decide the interse liability among

the tortfeasors in order to determine their respective liability.

However, such contributory negligence of each of the tortfeasor

would not affect the rights of the claimants to recover the

compensation from either or any one of the tortfeasors.

16. Therefore, sofar as the petitioners are concerned, there

cannot be any dispute that they are entitled for the

ILR.1999.Kar.403

AIR.2004.Kar.26

(2015)9 SCC 273

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compensation from either or any one of the tortfeasors i.e. either

the respondent No.1 or the respondent No.2. It is not in dispute

that the Toyota etios car owned by respondent No.2 was covered

by the insurance policy issued by respondent No.3. Therefore, by

virtue of contractual liability, respondent No.3 is liable to pay the

compensation if the respondent No.2 is held to be a tortfeasor

and liable to pay the compensation.

17. Now coming to the question as to whether the

respondent No.2 had contributed for the negligence or not, it is

necessary to advert to the evidence on record.

18. Before adverting to the evidence, in the decision of the

Apex Court cited by learned counsel the respondent No.2 in the

case of National Insurance Company Limited vs.

Chamundeswari and others in Civil Appeal No.6151/2021 in

para 8 it is observed as below:

"8. It is clear from the evidence on record of PW1 as well as PW3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW1 & PW3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW1 herself traveled in the very car and PW3., who

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MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

has given statement before the police, was examined as eyewitness. In view of such evidence on record, there is no reason to give weightage C.A @ SLP(C) NO.4705 of 2019 to the contents in the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the judgment, relied on by the appellants counsel in the case of Oriental Insurance Company Limited V. Premlata Shuk and Other1, this court has held that proof of rashness and negligence on the part of the driver of vehicles, is therefore, sine qua non for maintaining an application under section 166 of the Act. In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. In the judgment in the case of Nishan Singh and Others V. Oriental Insurance Company Limited2, this court has held, on facts, that the car of the appellant therein, which crashed into truck which was proceeding in front of the same, was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations, C.A @ SLP(c) no.4705/2019 framed under Motor Vehicles Act, 1988. whether driver of the vehicle was negligent or not, there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant, would not render any assistance in support of his case.

19. Thus, it is evident that the weightage that has to be

attributed to the evidence before the Tribunal weighs more than

the FIR and other documents. Keeping in view the said

observation, it is necessary to look into the facts of the case.

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20. PW1 who was the driver of the auto rickshaw in his

evidence has stated that the accident occurred due to sole rash

and negligent act of the driver of 407 tempo bearing

No.KA.01.B.9432. He states that he could not get the address of

the insurer of the said tempo. It is an admitted fact by the RW2

Ramakrishnappa K.M. that the said tempo was not having the

insurance cover at the time of the accident and he was going in

the said tempo in order to remit the insurance premium.

21. The PW1 in his testimony has stated that 407 tempo

dashed to his auto rickshaw from behind. In his cross

examination, he admits that he was using the said auto rickshaw

for his personal use and as such, there was no such permit to

use it commercially. He also admit that it was not insured. It is

elicited that when 407 tempo dashed to the auto rickshaw, the

auto rickshaw turned turtle and thereafter, the Toyota car came

and dashed against 407 tempo from behind. He denies that the

Toyota car was not invovled in the accident and that the accident

occurred due to his own negligence. There is no specific

suggestion that he applied the brakes suddenly and therefore

the 407 tempo dashed to the auto rickshaw from behind. It is

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MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

elicited that his wife was also with him and the statement of his

wife recorded by the investigating officer is produced at Ex.P14.

The chargesheet is produced at Ex.P13.

22. The official of the insurance company is examined as

RW1. He was not an eye witness to the accident and therefore,

his evidence is not relevant to ascertain the factual aspects of

the case. However, he has admitted that the insurance policy of

Toyota car was in force as on the date of the accident.

23. The RW2 Ramakrishnappa in his affidavit contend that

the auto rickshaw driver applied the brakes suddenly and

therefore, he dashed against the auto rickshaw from behind and

as such, there was no negligence on his part.

24. The perusal of the complaint filed by the PW1 show

that the accident has happened on NH75 near Gottipura gate.

Negligence is attributed against the 407 tempo driver. The spot

mahazar at Ex.P3 discloses that it was a high way and the spot

is about 100 meters away from Gottipura gate. Therefore, there

is no evidence to show that the auto rickshaw driver had applied

the brakes suddenly and therefore, there was a collision.

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25. The perusal of the chargesheet produced at Ex.P13

shows that the investigating officer after investigation filed

chargesheet against the driver of the 407 tempo and also against

the respondent No.2 who was the driver of the Toyota Etios car

KA.03.AD. 4845.

26. Now the question is, whether there was any

contributory negligence by the respondent No.2 or not?

27. It is relevant to note that the time gap between the

collision of auto rickshaw and 407 tempo and the collision

between the 407 tempo and Toyota Etios car is not available.

The witnesses i.e., PW1 and RW2-Ramakrishnappa simply say

that the collision occurred one after the other. The investigating

officer has concluded that both the drivers of the four wheelers

have contributed to the negligence and as such culpable

negligence has been fastened upon them.

28. Under these circumstances, it would not be possible

either for this Court or the Tribunal to find a time gap between

the two collisions and to bifurcate the negligence of the drivers

and to find out who was the cause for the death of the deceased

boy who was the inmate of the auto rickshaw. Though the

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evidence of PW1 has to be given weightage over the other

evidence, it cannot be over looked that soon after the PW1

suffered injury when his vehicle turned turtle, it cannot be

expected that he was aware of the time when the car collided

against the 407 tempo. Anyhow, the accident has taken place

in a sequence within a short period of time and therefore, it is

not possible to attribute negligence to the driver of 407 tempo

alone. As noted above, the finding of the Tribunal that,

negligence attributable to the auto rickshaw to the extent of

10% appears to be on the basis that the PW1 did not have the

permit and the insurance to his vehicle. The PW1 was not asked

to produce the driving licence at any point of time. The fact that

he did not produce his driving licence and he did not produce the

permit and he did not produce the insurance policy cannot be a

ground to hold that he contributed negligence to the extent of

10%. Therefore, the finding of the Tribunal that the PW1

contributed 10% negligence and therefore, all the petitioners

are not entitled for the compensation to the extent of 10% would

be an absurd proposition. Hence, we do not find any reason to

subscribe to the view taken by the Tribunal in this regard.

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29. Coming to the question of interse contributory

negligence among the drivers of the other two vehicles is

concerned, the accident has taken place in a sequence and

therefore, both the vehicles have contributed equally to the

negligence. If the 407 tempo had not collided with the auto

rickshaw, the accident would have been avoided. If the Toyota

car had maintained safe distance, collision could have been

avoided. There is no material on record to show that the time

gap between the two collisions was sufficient enough to draw

inference that they are two different and distinct accidents.

Therefore, we hold that, this is a case of composite negligence

and as such, both the tortfeasors are equally liable. Hence, the

compensation payable to the petitioners has to be shared by the

respondent Nos. 1 and 2 equally and since the respondent No.2

is indemnified by the insurance policy of respondent No.3, the

respondent No.3 is liable to the extent of 50%.

30. As a result of the above discussion, we re-determine

the compensation amount as above and fasten the liability on

respondent Nos. 1 and 3 payable in equal proportions. However,

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MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

the liability to pay the compensation to the petitioners is, joint

and several.

31. Coming to the question of the quantum of

compensation, the learned counsel appearing for the petitioners

has contended that the compensation awarded by the Tribunal is

meager and it has not considered all the relevant heads of the

compensation. It is submitted that the income of the deceased

was not properly considered by the Tribunal and the deduction of

1/5th towards personal expenses is on the higher side. It is

submitted that the compensation under the head of loss of love

and affection to the petitioners No. 1 and 2 has not been

considered by the Tribunal and also the future prospects of the

income should have been considered.

32. Per contra, learned counsels for the respondent-

Insurance Company have contended that in case of minor the

future prospects cannot be taken into consideration and that the

deceased being aged about 12 years, the ratio laid down by the

Apex Court in Kishan Gopal's case has been considered by the

Tribunal and as such, no revision of the compensation be made.

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33. It is relevant to note that in Kishan Gopal's case, the

Apex Court was considering the compensation to be awarded in

case of a death of a minor child. Considering the fact that the

structured formulae under Section 163A of the M.V. Act,

recognised the notional income at Rs.15,000/- per annum and

much water has flown after the enactment has come into force in

the year 1988, it modified the notional income at Rs.30,000/-

per annum and calculated the compensation by adopting the

multiplier of 15 to the tune of Rs.4,50,000/-.

34. Further, in the case of Master Mallikarjun vs.

Divisional Manager, National Insurance Company and

another6, the Apex Court had awarded a sum of Rs.4,00,000/-

under the head of disablement without considering the future

loss of income. Later, in a decision in the case of Kumari

Laxmi Vs. Sri Vivek Goel K and another7, a co-ordinate

bench of this Court deviated from the case of Master

Mallikarjun and awarded a sum of Rs.32,00,000/- considering

the amputation of both the legs of the claimant therein. Inter

(2014) 14SCC 396

in MFA 3645/2014,

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MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

alia, it was held that Master Mallikarjun's case cannot be held

to prescribe a universal principle.

35. In another decision, in the case of Kajal Vs.

Jagadish Chand and others8, the Apex Court has considered

100% disability of a 12 years old child and adopted the notional

income as per the Minimum Wages Act and awarded

compensation. Thus, it is evident that the quantum arrived at by

the Apex Court in Kishan Gopal's case was relevant during the

time when the said judgment was delivered. Time and again,

the Apex Court has reiterated and has taken a consistent view

that the quantum has to be dynamic and in consonance with

contemporary economic and social conditions. The Apex Court

has also reiterated in umpteen number of decisions that the

income/notional income may be considered based on the

income fixed under the Minimum Wages Act. It is one of the

safe method under which the notional income can be considered.

36. In the light of the above discussion, we are of the

view that the quantum arrived at in Kishan Gopal's case needs

to be revisited. It is pertinent to note that the minimum wages

AIR 2020 SC 776

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MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

for a child aged about 12 years is hard to be determined.

Therefore, we deem it appropriate to rely on the guidelines that

may be inferred from the decision in Kishan Gopal's case. It is

to be noted that from the year 1994 to 2013, an increase of

100% of a notional income was considered by the Apex Court.

From the year 2013 to 2022, it would be safe to consider and

increase of the notional income to the extent of 50%. Therefore,

by taking the notional income of the deceased boy aged about

12 years at Rs.45,000/- per annum, we calculate the

compensation to be awarded to the petitioners.

37. The petitioners are the parents and siblings of the

deceased. At no stretch of imagination, the siblings can be

termed to be the dependants when the deceased himself was a

minor. Therefore, the petitioner Nos. 1 and 2 being the parents

of the deceased are entitled for compensation under the head of

loss of love and affection to the extent of Rs.44,000/- each. In

addition to it, they are also entitled for Rs.16,500/- each towards

the loss of estate and the funeral expenses.

38. Towards loss of dependency, in view of the above

discussion, the same is calculated as Rs.45,000/- x 15 =

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MFA No. 14 of 2020 C/W MFA No. 1771 of 2020

6,75,000/-. Thus, the petitioners are entitled for a sum of

Rs.7,96,000/- under the following heads:

Loss of dependency              Rs.6,75,000/-
Loss of Love and affection      Rs.     88,000/-
Loss of estate                  Rs.     16,500/-
Funeral expenses                Rs.     16,500/-
Total                           Rs.7,96,000/-
Less: awarded by Tribunal       Rs.4,50,000/-
Enhancement                     Rs.3,46,000/-



39. Hence, we pass the following:


                             ORDER

(i) MFA No.14/2020 preferred by the petitioners is allowed

in part and the MFA No.1771/2020 preferred by the Insurance

Company is dismissed.

(ii) The impugned judgment and award dated 11.10.2019

passed in MVC No.245/2017 by the learned XVI Additional

Judge, Court of Small Causes and MACT Bangalore city SCCH-

14, is modified. The petitioners No. 1 and 2 are entitled for a

compensation of Rs.7,96,000/- together with interest at the rate

of 6% p.a. from the date of petition till its deposit. The finding

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of the Tribunal fastening 10% negligence upon the PW1 is set