IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 1102 of 2001(C)
1. SAJITHA
... Petitioner
Vs
1. SATHEESAN
... Respondent
For Petitioner :SMT.M.A.VAHEEDA BABU
For Respondent :SMT.NARAYANIKUTTY CHETTOOR
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :31/10/2007
O R D E R
J.B. KOSHY & K.HEMA, JJ.
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M.F.A.No. 1102 of 2001
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Dated this the 31st day of October, 2007
Judgment
Koshy,J.
A ten year old boy died in a motor accident when she
along with his mother and sisters were travelling in a taxi car. The
tribunal found that the accident occurred due to the negligence of
the driver of the offending vehicle insured by the third respondent
insurance company. However, against a claim of compensation of
Rs.3,50,000/-, only Rs.96,000/- was awarded with 12% interest from
22.10.1993 till 31.10.1994 and from 16.12.1997 till the date of
deposit. Denial of interest for the above period was because the
case was dismissed for default and subsequently only, it was
restored. Quantum of compensation is disputed vehemently by the
appellant.
2. The deceased was aged only ten years at the time of
accident. He was a non-earning person. However, he was the only
male child of the appellants. Mother was aged 30 and father was
35. It is submitted that due to the death of the only son, even
though father, mother and sisters filed claim petition, father died
M.F.A.No.1102/2001 2
during the pendency of the claim petition. It is further contended
that mother and sisters had hopes on this male child. Because of
the untimely death of the father due to the shock, they are
completely hapless and, therefore, compensation awarded was very
low. Even going by the second schedule, for death of a child,
Rs.15,000/- can be taken as the annual notional income and one-
third has to be deducted. Therefore, for calculating the
compensation yearly loss can be taken as Rs.10,000/- and 15 is the
multiplier as per the second schedule. A three-member Bench of
the Apex Court in Smt. Supe Dei and others v. M/s. National
Insurance Company Ltd. and another (JT 2002 Supp.1 SC 451) has
held that even though claim is under section 166 of the Motor
Vehicles Act, second schedule should be considered as a guideline
for calculating compensation and only in exceptional circumstances
it can be varied. A similar view was taken by the Apex Court in
Abati Bezbaruah v. Deputy Director General, Geological Survey of
India and another ((2003) 3 SCC 148) and reasonably in A.P.S.R.T.C.
v. M. Pentaiah Chary (2007 AIR SCW 5689). Therefore,
compensation payable for the death of the child will be
Rs.1,50,000/-. It was argued that under second schedule, if
compensation is calculated under section 163-A, amount will be
Rs.2,00,000/- for the death of a child below 15 years. In 163-A
M.F.A.No.1102/2001 3
negligence of the driver of the offending vehicle need not be
proved. But, under section 166, claimant has to prove the
negligence of the driver. Hence, compensation cannot be less than
the one awarded under section 163-A. We are unable to accept the
above contention. The tribunal has granted only Rs.40,000/- for the
death of the child. So, if the above Rs.40,000/- is deducted,
additional amount payable will be Rs.1,10,000/-. Other amounts
granted are for treatment expenses, pain and suffering, loss of love
and affection etc. The additional amount of Rs.1,10,000/- should
be deposited by the third respondent insurance company with 7.5
% interest from the date of application (22.10.1993) till 31.10.1994
and thereafter from 16.12.1997 till the date of deposit over and
above the decreed amount by the tribunal. 50% of the additional
amount can be withdrawn by the first appellant and balance can be
withdrawn by the second and third appellants in equal proportion.
J.B.KOSHY
JUDGE
K. HEMA
JUDGE
vaa
M.F.A.No.1102/2001 4
J.B. KOSHY AND
K.HEMA,JJ.
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M.F.A. No. 1102 of 2001
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Judgment
Dated:31st October, 2007