2022:BHC-GOA:1058 224-FA-105-2016 Niti IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.105 OF 2016

1. Shri Govindappa Hanumappa Biroji, Son of late Mr. Hanumappa Biroji, aged 43 years, married, Labourer and his wife (original claimant no.1)

2. Mrs. Kamala Govindappa Biroji, wife of Mr. Govindappa Hanumappa Biroji, aged 39 years, housewife, (original claimant no.2)

Both residents of House No.112/37, Bandora, Ponda – Goa. … Appellants Versus

1. Mr. Shankar Hammappunawar son of Mr. Mudukuppu Hammappunawar, major, driver, resident of at Akkiuni Galli, Saundatti, Belgaum – Karnataka, (original respondent no.1)

2. Managing Director, North West Karnataka Road Transport Corporation (NWKRTC), Hubli [Chikodi Division], Karnataka – State, (original respondent no.2)

3. The New India Assurance Company Ltd., Chikkodi Division, Karnataka –

State, (original respondent no.3) …. Respondents Mr. Milton Marshal,Advocatefor the Appellants.

Mr. Salil Saudagar, Advocate for the Respondent No.2.

Mr. U.R. Timble with Ms. Y. Mandrekar, Advocate for Respondent No.3.

CORAM: M. S. SONAK, J.

DATE : 18^th AUGUST 2022

ORAL JUDGMENT :

1. Heard learned Counsel for the parties.

2. This appeal is directed against the judgment and award dated 24.08.2016 made by the Motor Accident Claims Tribunal (Tribunal), North Goa, in Claim Petition No.43/2015, awarding ₹

the appellants (claimants) compensation of 1,75,000/- with interest at the rate of 9% per annum for the death of their four- year-old son Master Saeel Govindappa Biroji in a vehicular accident on 13.07.2011.

3. Mr. Marshal, learned Counsel for the appellants, submits that the Claim Petition was filed under Section 163-A of the MV Act. He submits that the Tribunal erred in taking the annual ₹

income of the deceased at 15,000/- per annum when the Hon'ble Supreme Court, in R.K. Malik V/s. Kiran Pal1 had observed that the notional income fixed under Section 163-A of the MV Act should be enhanced since the same had continued without any amendment since 14.11.1994. He relied on Kurvan

1 (2009) 14 SCC 1 Ansari alias Kurvan Ali & Anr. V/s. Shyam Kishore Murmu & Anr.2 to submit that in similar circumstances, the Hon'ble Supreme Court took the annual income of a seven-year-old child ₹

who died in a vehicular accident at 25,000/- per annum. He pointed out that towards filial consortium and funeral expenses, ₹

additional compensation of 95,000/- was also awarded.

4. Mr. Marshal submits that in Kurvan Ansari (supra), the accident took place on 06.09.2004 and, therefore, in the present ₹

case, the annual income should be much higher than 25,000/- per annum. Based on all this, Mr. Marshal submitted that the ₹

compensation of 5,00,000/- claimed by the claimants was just compensation, and the Tribunal erred in not awarding the same.

5. Mr. Timble, learned Counsel for the respondent – Insurance Company, defended the impugned award based on the reasons. He submitted that until and unless the schedule to the MV Act is amended, there is no question of enhancing the amounts referred to therein. He submitted that an additional ₹

amount of only 25,000/- can be granted under Section 163-A towards consortium, loss of estate, funeral expenses, etc. He submitted that the Tribunal correctly distinguished children under five years and above. He submitted that the Tribunal has

2 2021 (4) TAC 673 (SC)

also relied on Supreme Court decisions; therefore, no case is made to warrant interference.

6. Mr. Timble, without prejudice, submitted that the interest of 9% per annum, in this case, was excessive because the accident occurred on 13.07.2011. He submits that the interest should have been a maximum of 6% per annum, not 9% per annum.

7. The rival contentions now fall for determination.

8. Admittedly, the claimants applied for compensation under Section163-A of the MV Act. However, the same was the position in Kurvan Ansari (supra), where the son of the appellants, Ibran Ali, a boy aged seven years, died in a vehicular accident on

06.09.2004.

9. The Tribunal in Kurvan Ansari