George Philip & Lolitha George v. Robin Xavier & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937** **MACA.No. 734 of 2008 ( ) -------------------------** **AGAINST THE AWARD IN OPMV 1785/2004 of M.A.C.T.,KOTTAYAM DATED 24-02-2007** ## **APPELLANTS/PETITIONERS:** ## **-----------------------** ## **1. GEORGE PHILIP** ## **2. LOLITHA GEORGE.** **(BOTH ARE RESIDING AT KALARICKAL HOUSE ELAPPARA P.O., IDUKKI, NOW RESIDING AT SRAMBICKAL KORATHARA, KURUSHUMOODU.).** **BY ADVS.SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU** **RESPONDENTS/RESPONDENTS.: ------------------------** ## **1. ROBIN XAVIER** **KUNNEL HOUSE, MURINJAPUZHA, KOKKAYAR.** **2. THE SECRETARY, MALANADU SOCIETY TEA FARMERS, PARATHODU KANJIRAPPALLY.** **3. THE ORIENTAL INSURANCE COMPANY LIMITED, KOTTAYAM.** ## **4. LARANCE KURIAN, RESIDING AT SRAMBICKAL** **HOUSE, VANDAMPATHAL P.O., MUNDAKKAYAM.** **5. THE ORIENTAL INSURANCE COMPANY LIMITED, KOTTAYAM.** **R3&R5 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) R3&R5 BY ADV.SRI.K.S. SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.734 of 2008 ....................................................... Dated this the 4[th] day of March, 2016. ## **JUDGMENT** ## **K. RAMAKRISHNAN, J:** The claimants in O.P.(M.V.)No.1785 of 2004 on the file of the Motor Accidents Claims Tribunal, Kottayam are the appellants herein. The appellants have filed the application claiming compensation for the death of their child named Tom George, aged only 60 days old, who died in a motor vehicle accident occurred on 3.9.2003 at 3.15 p.m. The deceased along with his mother and grandfather were travelling in a Maruti van with registration No.KL 5J 2576 through K.K. Road from west to east and when they reached the place of occurrence, the lorry with registration No.KL-5N 8388 came from the opposite direction driven by the first respondent, owned by the second respondent and insured with the third respondent collided with the maruti van. The child sustained severe injuries and died on account of the injuries sustained. They claimed a total compensation of Rs.3,00,000/- on various heads. 2. The owner and insurer of the maruthi car were also impleaded as additional respondents 4 and 5 as per order in I.A.No.3843 of 2006. Respondents 1, 2 and 4 remained absent. The third and fifth respondents entered appearance and admitted insurance of the respective vehicles, but alleged negligence against the driver of the MACA.No.734 of 2008 2 respective vehicles though both the vehicles were insured with the same insurance company. They also denied the quantum of compensation claimed and they prayed for dismissal of the application. 3. This petition was tried along with O.P.(M.V.)Nos.1929 of 2003 and 1885 of 2004. Pws 1 and 2 were examined and Exts.A1 to A 23 were marked on their side. Driving licence of the driver of the maruti car was produced and marked as Ext.B1. After considering the evidence on record, the tribunal found that the accident occurred due to composite negligence of both the driver of the vehicles and apportioned negligence in the ratio of 3:1 namely the driver of the mini lorry and driver of the maruthi car respectively and assessed a total consolidated amount of Rs. 1,25,000/- as compensation payable by respondents 3 and 5 in the ratio mentioned above. Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellants/claimants before the tribunal. 4. Heard Sri. A.R. Nimod, learned counsel representing Sri. T.C. Suresh Menon, learned counsel appearing for the appellants and Sri. K.S.Santhi, learned counsel appearing for respondents 3 and 5 as we have dispensed with notice to others. Considering the question involved, we feel that the same can be disposed of today itself after MACA.No.734 of 2008 3 hearing both sides. 5. Though learned counsel for the appellants attempted to canvass a proposition that the claim was filed under section 163 A of the Motor Vehicles Act, the tribunal should not have treated it as under section 166 of the Motor Vehicles Act. On going through the allegations in the petition, we are convinced that though a wrong provision was quoted, the intention of the parties was to claim and treat the petition under section 166 of the Act and not under section 163 A of the Act. Further the parties have entered into box and adduced evidence and tribunal had apportioned the negligence between drivers of the vehicles as well. Under such circumstances, at this stage, it cannot be treated as a claim under section 163 A of the Act as claimed by the counsel for the appellants. Further, in the claim petition also it was mentioned that it will be treated as claim under section 166, though in the cause title the provision was shown as Section 163 A. So under such circumstances, it cannot be treated as claim under section 163 A of the Act for the purpose of quantifying compensation for the death of the child as claimed by the counsel for the appellants at the appellate stage. 6. Learned counsel for the appellants submitted that the tribunal ought to have taken future prospects of the child and the amount MACA.No.734 of 2008 4 awarded under the head loss of love and affection, funeral expenses, pain and sufferings, etc separately calculated and this should have quantified the amount payable, that was not done in this case. It is true that in the earlier decision relied on by the tribunal in the case of minor child, the Supreme Court has quantified a consolidated amount and awarded compensation. But later that method has been diluted and compensation was awarded taking future prospects of the child as well. So the compensation awarded is not proper. 7. On the other hand, learned counsel for the insurance company submitted that considering the age of the child, the amount awarded is just and proper. 8. In this case, the age of the deceased child is only 60 days. It is quite unfortunate that the mother of the child who was travelling in the vehicle had to see the sufferings of the child on account of the injury sustained in the accident and they have lost the child of tender age before it would blossom into a better child. They might have had a lot of expectations in the child as well. But it is also settled law that in the case of child of young age, who are not capable of earning anything, it is very difficult to assess compensation on the head of loss of dependency. But some guess work can be made for the purpose of awarding compensation under MACA.No.734 of 2008 5 the head loss of expectancy which was expected by the parents from the child after she or he becoming a youngster in future. Further, their anticipated dependency on their child also will have to be taken into consideration while assessing compensation under such cases. In the decision reported in _**National Insurance Company v. Farsana**_ (2009 ACJ 2763), the Delhi High Court has taken the monthly income of the deceased children as Rs.15,000/- and taking 15 as multiplier, awarded Rs.2,25,000/- under the head loss of dependency and awarded Rs. One Lakh under the head loss of expectation, Rs.15,000/-as loss of company of the child and enhanced the compensation to Rs. 2,75,000/- from Rs. 1,00,000/-. But in all those cases the children were aged between the age group of 5 and 15 not in a case like this of 60 days old. In such circumstances, it is difficult to take the yardstick taken by the Delhi High Court in awarding compensation. But at the same time a consolidated amount of Rs.70,000/- can be awarded under the head loss of expectancy from the child to the parents. Further in the decision reported in _**Kala**_ _**Devi v. Bhagwan Das Chauhan (2015 (2) SCC 771)**_ , the Supreme Court has held that in case where a bachelor dies, the parents will be entitled to get compensation of Rs. 1,00,000/- each under the head loss of love and affection. But in this case, the child is MACA.No.734 of 2008 6 aged only 60 days. So considering this aspect, the parents will have to suffer loss of their child at the young age as well. They happened to see the end of their child as the child sustained injuries in the accident in front of them and succumbed to the same as well in their presence. This may have some impact on their life. Taking all these into accounts, we feel that the amount of Rs.75,000/- each to each parent can be awarded as compensation under the head loss of love and affection. No amount was awarded under the head pain and sufferings of the child and we feel that an amount of Rs.10,000/- can be awarded under that head. In _**Rajesh v. Rajbir Singh** [2013(3) KLT 89(SC)],_ the Supreme Court has held that in the absence of any contra evidence of higher expenses, a minimum of Rs. 25,000/- under the head funeral expenses can be awarded and so we award an amount of Rs.25,000/- under that head. On all other heads, the tribunal has awarded just and proper compensation. In all the appellants are entitled to get Rs.2,60,000/- in stead of Rs.1,25,000/awarded by the Tribunal as compensation thereby the claimants will be entitled to get an additional amount of Rs.1, 35,000/-, which respondents 3 and 5 are liable to pay in the proportion 3:1 as found by the tribunal. The insurance company is also liable to pay interest at the rate of 9% per annum from the date of petition till MACA.No.734 of 2008 7 payment. Three months time is granted to the insurance company to deposit the amount. The parents are permitted to withdraw the amount equally. With the above modifications of the impugned award, the appeal is allowed in part and disposed of accordingly. Considering the circumstances, the parties are directed to bear their costs respectively in the appeal. Sd/- **P.N. RAVINDRAN, JUDGE.** Sd/- **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge MACA.No.734 of 2008 8 MACA.No.734 of 2008 9