Biju George and Shinjy Biju v. K.J. Mani, Sminosh P. and Reliance General Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 1ST DAY OF JUNE 2016/11TH JYAISHTA, 1938 MACA.No. 2511 of 2013 () ------------------------AGAINST THE AWARD IN OPMV 1154/2011 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 14-02-2013 APPELLANTS/APPLICANTS: ----------------------------- 1. BIJU GEORGE, S/O.GEORGE, AGED 36 YEARS RESIDING AT CHIRAKKACHALIL HOUSE, PULIKKAYAM, KODENCHERI P.O., KOZHIKODE TALUK AND DISTRICT. 2. SHINJY BIJU, W/O.BIJU GEORGE, AGED 29 YEARS, RESIDING AT CHIRAKKACHALIL HOUSE, PULIKKAYAM, KODENCHERI P.O., KOZHIKODE TALUK AND DISTRICT. ## BY ADVS.SRI.M.R.ANISON SMT.K.P.GEETHA MANI RESPONDENTS/RESPONDENTS: ---------------------------------- 1. K.J.MANI, AGE & FATHER'S NAME NOT KNOWN TO THE APPELLANTS KUTHANAPILLIL HOUSE, MANAPPARA P.O., KOTTAYAM DISTRICT, PIN 685602, (R.C.OWNER OF KL 6 D 7200 BUS). 2. SMINOSH.P., S/O.CHANDRAN, AGE NOT KNOWN TO THE APPELLANTS, PUZHIKUNATH HOUSE, NELLARACHAL, KUPPADI P.O., WAYANAD DISTRICT (DL NO.12/1890/1996) (DRIVER OF KL 6 D 7200 BUS). 3. M/S.RELIANCE GENERAL INSURANCE COMPANY LTD., OPP.TAGORE CENTENARY HALL, RED CROSS ROAD, CALICUT-673032. (INSURER OF KL 6 D 7200 BUS). R3 BY ADV. SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.2511 of 2013 -------------------------------Dated 1[st] June, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The appellants are the claimants who lost their 3½ years child in a motor vehicle accident. The accident occurred on 17.1.2011 at about 8 p.m. while the appellants along with the child were travelling in a bus. The bus hit against a compound wall and capsized causing injuries to the passengers including the child. Immediately thereafter the child was taken to Al-mas Hospital, Kottakkal and from there she was referred to Medical College Hospital, Kozhikode. From the hospital she succumbed to the injuries. It is in the said circumstances that, alleging rashness and negligence on the part of the 2[nd] respondent, the driver of the bus and taking up the necessary contentions to make the first respondent, the owner of the vehicle vicariously liable and the 3[rd] respondent insurer to indemnify the first respondent, the said application filed. No oral evidence was adduced by both sides and on the side of the respondents no documentary evidence was also adduced. On the side of the appellants Exts.A1 to A5 were got marked. The Tribunal, as per the impugned award, in O.P.(M.V)No.1154 of 2011 M.A.C.A.No.2511/2013 2 dated 14.2.2013, on considering the evidence on record and appreciating the rival contentions granted a compensation of ₹ 2,13,000/- with interest at the rate of 7% from the date of petition till realisation. It is seeking enhancement of the quantum of compensation that the captioned appeal has been preferred. 2. We have heard the learned counsel for the appellants and also the learned counsel appearing for the 3[rd] respondent. 3. The learned counsel appearing for the appellants contended that the Tribunal ignoring the dictum laid down by the Hon'ble Apex Court in **Rajesh v. Rajbir Singh (2013(3) KLT 89 (SC))** granted only 5,000/- towards funeral expenses. It is further₹ contended that for granting compensation under the head `loss of dependency' the Tribunal fixed multiplicand too meagrely. After erroneously fixing the multiplicand the Tribunal has also effected deduction of one third of the said income for the aforesaid purpose, it is contended. It is the further contention that the amount of compensation granted under the heads `transport to hospital', `damage to clothings and other articles', `pain and sufferings' and `loss of love and affection' are also on the lower side. Per contra, the learned counsel M.A.C.A.No.2511/2013 3 appearing for the 3[rd] respondent contended that taking into account the fact that the deceased was a child aged only 3½ years it has to be taken that the Tribunal had correctly fixed the multiplicand for the purpose of computing the compensation under `loss of dependency'. It is the further contention that a bare perusal of the table appended to the impugned award would reveal that the Tribunal granted adequate compensation to the appellants under all other heads as well. In short, according to the learned counsel, the case on hand invites no appellate interference. 4. Assessing compensation in a claim petition filed under Section 166 of the Motor Vehicles Act, in respect of the death of a child, is difficult to quantify as essentially, in such circumstances, fixation of non-pecuniary compensation would be based upon sentiments and emotions as held by the Hon'ble Apex Court. But, at the same time, there cannot be any ground for depriving due compensation to the claimants though it is extremely difficult to quantify the exact amount payable with arithmetical accuracy. As held by the Hon'ble Apex Court in **R.K.Malik** v. **Kiran Pal ((2009) 14 SCC 1)** loss of a child could never be ameliorated completely. In other words, loss of a human life or limb cannot be replaced by granting pecuniary damages. Certainly, M.A.C.A.No.2511/2013 4 loss of a child is not ransomable. The Hon'ble Apex Court in the said circumstances further held therein that the Motor Vehicles Act provides for payment of `just compensation' vide Sections 166 and 168 and in such circumstances, in the case of death of a child, it is left to the courts to decide what would be `just compensation' in the facts and circumstances of the case. As noticed hereinbefore, the deceased in this case is a child and she died at the age of 3½ years. The learned counsel for the appellants contended that having taken the multiplicand at 15,000/- per annum and the multiplier as `15' the Tribunal ought₹ not to have effected deduction of one third of the multiplicand for the purpose of calculating the compensation under the head `loss of dependency'. The contention of the learned counsel for the 3[rd] respondent is that deviation from the structured formula is impermissible and therefore, the Tribunal cannot be found fault with in fixing notional income as the multiplicand and then effecting one third deduction. It is also contended that under the Second Schedule of the Motor Vehicles Act, in the case of a non-earning person, his income has to be fixed notionally at 15,000/- per annum. Evidently, the Second₹ Schedule provides for the multiplier to be applied in cases where the age of the claimant is less than 15 years as well. In **R.K.Malik's** case (supra) the Hon'ble Apex Court further observed that even when M.A.C.A.No.2511/2013 5 compensation is payable under Section 166 read with Section 168 of the M.V. Act, deviation from the structured formula as provided in the second schedule is not ordinarily permissible, except in exceptional cases, with reference to its earlier decisions in **Abati Bezbaruah** v. **Geological Survey of India ((2003) 3 SCC 148)** , **United India Insurance Co. Ltd.** v. **Patricia Jean Mahajan ((2002) 6 SCC 281)** and **U.P.S.R.T.C.** v. **Trilok Chandra ((1996) 4 SCC 362)** . We are of the view that if deduction is to be effected after fixing the income notionally necessarily, future prospects, which normally the deceased would have had, could not be ignored. In the contextual situation, it is also apposite to refer to paragraph 33 of the said decision. It is stated therein that it is well settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. Further, it was held therein that it would be incumbent upon the courts to consider the said aspect while awarding compensation. But, it is to be noted that in the same paragraph it was further held that while considering such claims, the child's performance in school, the reputation of the school etc. might be taken into consideration. But, at the same time, in this case, the deceased child was aged only 3½ years and in such circumstances, the aforesaid factors are not at all available for considering the future M.A.C.A.No.2511/2013 6 prospects. That apart, in the case of a child, that too aged 3½ years, it would be extremely difficult to say with precision or guess as to what the child would ultimately become. Taking note of the observation of the Hon'ble Apex Court that, in such circumstances, while considering the question of just compensation in the case of the death of a child under Section 166 read with Section 168 of the Act, it is left to the courts to decide what would be the just compensation. In this case, the Tribunal has therefore, correctly fixed the annual income in tune with the Second Schedule as 15,000/- and the multiplier as `15'. But, we₹ are of the considered view that in view of the absence of such factors mentioned hereinbefore it would not be appropriate for us to reckon the addition to be made reckoning the future prospects and in such circumstances, we are of the view that it would also be appropriate not to effect any deduction towards personal expenses. In the said circumstances, while considering the just compensation to be paid in the case on hand we are of the view that the formula to be followed is the income to be notionally fixed in terms of the second schedule and multiply the same with the multiplier to be adopted in terms of the said schedule viz,, `15'. In short, under the head `loss of dependency' the appellants are entitled to get an amount of 2,25,000/- (15000 x 15).₹ Thus, the appellants are entitled to get an additional amount of M.A.C.A.No.2511/2013 7 ₹ 75,000/- under that head. Towards `funeral expenses' though no amount was claimed the Tribunal granted an amount of 5,000/-.₹ While considering the contention of the appellants regarding the inadequacy of the compensation thereunder, it is only apposite to refer to the decision of the Hon'ble Apex Court in **Rajesh's** case (supra). It is to be noted that no distinction whatsoever was made by the Hon'ble Apex Court in the matter of granting amount towards funeral expenses with reference to the age of the deceased. The Hon'ble Apex Court only held that in the absence of evidence of higher expenses a minimum of ₹ 25,000/- can be granted. In such circumstances, we are of the view that the appellants are entitled to get 20,000/- more under that head.₹ Despite the persuasive arguments of the learned counsel that the appellants are entitled to enhanced compensation under the other heads like `transport to hospital', `damage to clothings and other articles', `pain and sufferings' and `loss of love and affection' we are of the view that the Tribunal has granted compensation after appropriately appreciating the relevant factors and therefore, no interference is called for under those heads. In the result, the appellants are entitled to get an enhanced compensation of 95,000/ with interest at the rate of 8% per annum₹ M.A.C.A.No.2511/2013 8 from the date of petition till realisation. The 3[rd] respondent is directed to deposit the said amount within a period of two months from the date of receipt of copy of this judgment failing which the amount remaining to be paid will carry interest at the rate of 9% per annum from the date of petition till realisation. The amount shall be apportioned equally between the appellants-claimants. Before releasing the amount the Tribunal shall take steps for realising the balance amount of court fee, if by grant of enhanced compensation the total compensation granted exceeded the compensation claimed, in accordance with law. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** **-** Sd/ **K.P.JYOTHINDRANATH Judge** TKS