IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 134 of 2003(C)
1. ANTHONIYAMMA, W/O.RAJAPPAN J.,
... Petitioner
2. RAJU T.R., S/O.RAJAPPAN, DO. DO.
3. JAYARANI, D/O.RAJAPPAN, DO. DO.
4. JAYAKUMAR, S/O.RAJAPPAN, DO. DO.
5. PUSHPARANI, D/O.RAJAPPAN, DO. DO.
6. THOMAS, S/O.RAJAPPAN, DO. DO.
7. VIJAYAKUMAR, DO. DO.
Vs
1. THE MANAGING DIRECTOR,
... Respondent
2. M.J.THOMAS, S/O.DEVASIA JOSEPH,
For Petitioner :SRI.P.C.HARIDAS
For Respondent : No Appearance
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :01/07/2008
O R D E R
J.B. KOSHY & P.N. RAVINDRAN, JJ.
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M.F.A.NO.134 OF 2003
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Dated this the 1st day of July, 2008.
JUDGMENT
Koshy, J:
A 7 year old child died in a motor accident. Father and
mother of the child approached the Motor Accidents Claims
Tribunal, Pala for compensation. Even though Tribunal found that
the accident occurred due to the negligent driving of the 2nd
respondent, driver of the vehicle owned by the 1st respondent,
against a claim of Rs.3,20,000/= only an amount of Rs.74,600=
was allowed. The dispute is regarding the quantum of
compensation. It is contended that the child was a student. If
compensation was awarded under Section 163 A even without
proving the negligence of the driver, the claimant will be entitled to a
compensation of Rupees Two lakhs . Based upon the Division Bench
decision of this court in National Insurance Co. Ltd. v. Muneer
(2003 (1) KLT 137) it was argued that quantum of compensation
awarded under section 166 of the Motor Vehicles Act (in short `the
M.V.Act’) can never be lesser than the amount calculated as per the
structured formula under section 163-A of M.V.Act because in claims
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under section 163-A, negligence of the driver of the offending vehicle
need not be proved. Therefore, it was argued that compensation that
should be awarded when negligence proved should be higher. We
can award compensation only on the basis of settled legal principles
of the Hon’ble Supreme Court and the formula fixed under section
163-A of the M.V.Act can be taken only as a guideline while assessing
compensation under section 166.
2. Claims under sections 166 and 163-A are totally
independent. Under section 163-A, if age and income at the time of
the accident is determined, the compensation is fixed in the case of
fatal accidents as mentioned in the second schedule. If there is only
permanent disability, taking the multiplier fixed for the age group,
income of the deceased and percentage of permanent disability,
compensation can be calculated taking second schedule as a ready
reckoner. In case of non-earning persons Rs.15,000/= is fixed as
notional income. (See Deepal Girishbhai Soni and others v.
United India Insurance Co. Ltd. (2004 ACJ 934). But, when claims
are filed under section 166, entire matter including effect in further
prospects etc. have to be considered by the Tribunal for granting
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compensation. It was further argued that in Lata Wadhwa and
others v. State of Bihar and others ((2001) 8 SCC 197), the
Hon’ble Supreme Court has awarded Rs.1.50,000/= as compensation
apart from the general damages of Rs.50,000/= for children aged
between 5 and 10 years. For children aged between 10 to 15 years,
compensation has to be calculated taking annual contribution as
Rs.24,000/= and a multiplier of 15, apart from the general damages of
Rs.50,000/=. The counsel also referred to the decision of the Hon’ble
Supreme Court in M.S.Grewal and another v. Deep Chand Sood
and others ((2001) 8 SCC 151) wherein it was held that multiplier
method as adopted in motor accident claims cases can be applied in
similar claims as was held in Lata Wadhwa’s case (supra) and
Rs.5,00,000/= awarded to the parents of deceased school student was
not interfered by the Supreme Court.
3. It is settled law that 2nd schedule can be taken for
guidance for awarding compensation. A three member bench of
the Supreme Court in Smt.Supe Dei and others v. M/s.National
Insurance Company Ltd. and another (JT 2002 (Suppl.1) SC 451),
held that though the second schedule of the Motor Vehicles Act is
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framed for the purpose of awarding compensation under Section 163-
A, it serves as a guideline for determination of compensation under
section 166 of the Motor Vehicles Act also. In Abati Bezbaruah v.
Dy.Director General, Geological Survey of India and another
((2003) 3 SCC 148), it was held that structured formula mentioned in
the second schedule gives guidelines for determination of the amount
of compensation in terms of section 166 of the Motor Vehicles Act also.
In A.P.S.R.T.C. v. M.Pentaiah Chary ((2007) AIR SCW 5689), the
Hon’ble Supreme Court has held that except in exceptional
circumstances, second schedule should be followed in awarding
compensation.
4. The incident occurred on 22.6.1995. Under the 2nd
schedule, notional income of a non earning person is fixed as
Rs.15,000/= per year and after deducting one third , Rs.10,000/=
can be taken for calculation of compensation. In this fatal
accident case, the motor accident victim is an infant. Father was
aged 50 years at the time of the accident and mother was aged
45 years. If age of the motor accident victim is considered, 15 is
the apt multiplier as per the second schedule. But, since mother
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was aged 45 years, 13 is the apt multiplier. When an unmarried
person dies, age of the claimants has to be looked into in a petition
filed under section 166. Death of a child cannot be compensated in
pecuniary terms. Even if the child is mentally or physically impaired, it
will cause deep grief in the parents. It is all the more same when a
brilliant child goes to the school and parents have to find the body of
the child in a damaged condition due to an accident not due to the
fault of the child or parents. Its physical and mental impact cannot be
described in words. Even though loss of care to the child cannot be
measured in terms of money to award compensation, some yardstick
should be followed. It is needless to say that even compensation
cannot be calculated on the formula adopted by Legislature while
awarding compensation. It is contended that immediately after
passing of the award, father died due to the shock of the death
of his child. We are not considering that aspect in this appeal.
We are of the opinion that tribunal ought to have granted
compensation at least fixing 13 as the apt multiplier and thus the
compensation payable will be Rs.1,30,000/=. The Tribunal has
awarded only Rs.50,000/=. So additional compensation payable for
the death of the child will be Rs.80,000/=. With regard to the loss
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of estate, pain and sufferings, it is contended that, for pain and
sufferings only Rs.1,000/= was awarded. Death was instant.
Considering the total compensation payable, we are not enhancing
the same. The additional amount of Rs.80,000/= should be
deposited by the 1st respondent owner of the bus with 7.5%
interest from the date of application till the date of deposit over and
above the decreed amount by the Tribunal. On deposit of the above
amount, the 1st appellant/mother is allowed to withdraw the same.
The appeal is partly allowed.
J.B. KOSHY
JUDGE.
P.N. RAVINDRAN
JUDGE.
Cl/tks
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