Gopalan and others v. The Principal, Seethi Sahib Memorial High School, Theyyalingal, Malappuram District and N. Salam

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939 MACA.No. 998 of 2008 ( ) ------------------------- AGAINST THE AWARD IN OP(MV) 737/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR DATED 23-01-2008 APPELLANTS/PETITIONERS: --------------------------------------- 1. GOPALAN, 43 YEARS, S/O.ARUMUGHAN, MUKKRAKAT HOUSE, RAYIRIMANGALAM, TANUR. 2. SREEDEVI, 33 YEARS, W/O.GOPALAN, - Do..... Do....... 3. ANJITHA KRISHNAN (MINOR) 8 YEARS, - REP.BY FATHER AND NEXT FRIEND GOPALAN, S/O.ARUMUGHAN. 4. APARNA KRISHNAN, (MINOR) 6 YEARS, REP.BY FATHER AND NEXT FRIEND GOPALAN, S/O.ARUMUGHAN. BY ADVS.SRI.A.D.SHAJAN SRI.S.SHARAN RESPONDENTS/RESPONDENTS: ------------------------------------------------- 1. THE PRINCIPAL, SEETHI SAHIB MEMORIAL HIGH SCHOOL, THEYYALUNGAL, MALAPPURAM DISTRICT, (OWNER). 2. N.SALAM, S/O.MOHAMMED KUTTY, 31/05, NEDUMPALLI HOUSE, MOOLAKKAL, TANUR (DRIVER). R1-2 BY ADV. SMT.ANITHA M.N. (EKM) R1-2 BY ADV. SRI.LAL K.JOSEPH R1-2 BY ADV. SRI.T.K.SAIDALIKUTTY R1-2 BY ADV. SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jg-2/9 ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A.No.998 of 2008** **-------------------------------------------------DATED THIS THE 28[th] DAY OF JUNE, 2017** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Tirur dated 23.1.2008 in O.P.(MV)No.737/2005, an application filed by the appellants/claimants, who are the legal heirs of one Binil Krishnan, who died in a motor accident occurred on 12.2.2005, while he was riding a bicycle. Appellants 1 and 2 are the parents and appellants 3 and 4 are the siblings of the deceased. At the place of accident, the bicycle was knocked down by a bus bearing registration No.KL-8/C-3004 owned and driven by respondents 1 and 2, respectively. The 1[st] respondent owner is the Principal of Seethi Sahib Memorial High School, Theyyalingal in Malappuram District. As a result of the accident, the deceased sustained serious injuries and succumbed to the injuries, later. Alleging that the accident occurred due to the rash and negligent driving of the bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal under Section 163A of the Motor Vehicles Act, 1988, claiming a total compensation of 2,50,000/- under different heads. ₹ 2. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellants/claimants and Exts.B1 to B4 were marked on the side of M.A.C.A.No.998/2008 -2- the respondents. The 2[nd] respondent driver was examined as RW1. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the deceased died in a motor accident arising out of the use of the offending bus driven by the 2[nd] respondent driver and as such, the appellants/claimants are entitled for compensation. Under different heads, the Tribunal awarded a total compensation of 1,54,500/-. Since the offending bus was not having₹ a valid insurance policy at the time of accident, the 1[st] respondent owner was directed to deposit the said amount before the Tribunal together with interest at the rate of 9% per annum from the date of petition till realisation, with a cost of 1,500/-.₹ 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellants/claimants are before this Court in this appeal. 5. We heard arguments of the learned counsel for the appellants/claimants and also the learned counsel for the respondents, namely, the owner and driver of the offending bus. 6. The sole issue that arises for consideration in this appeal is as to whether the appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. The compensation awarded by the Tribunal under different M.A.C.A.No.998/2008 -3- ## heads reads thus; |Sl.<br>No.|Head of claim|Amount awarded| |---|---|---| |1|Compensation for death|150000| |2|Funeral expenses|2000| |3|Loss of estate|2500| ||Total|154500| 8. The accident is of the year 2005 and at the time of accident, the deceased was aged 9 years. Since the deceased was a non-earning person, the Tribunal fixed the annual income notionally at ₹15,000/- for the purpose of assessing compensation on account of death, relying on clause 6(a) of the Second Schedule to the Motor Vehicles Act, 1988. Applying the multiplier of '15' applicable to victims upto the age of 15 years and deducting 1/3[rd] of the said amount towards his personal expenses, the Tribunal awarded a sum of ₹ 1,50,000/- (15,000x15x2/3) under that head. ## 9. In **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014) 14 SCC 396]** , in the matter of assessment of the compensation in the case of minor who suffered disability on account of motor vehicle accident, the Apex Court held that, though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, M.A.C.A.No.998/2008 -4- precedents and the approach of various High Courts, the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3,00,000/-; upto 60%, Rs.4,00,000/-; upto 90%, Rs.5,00,000/- and above 90%, it should be Rs.6,00,000/-. For permanent disability upto 10%, it should be Rs.1,00,000/-, unless there are exceptional circumstances to take different yardstick. 10. In **New India Assurance Company Ltd. v. Vijayan and others (2016 (1) KHC 575)** the contention raised before a Division Bench of this Court, in which one among us (Anil K. Narendran, J) was a member, was that the principle laid down in **Mallikarjun's case (supra)** , which was a case involving injuries, is not liable to be applied in a case involving death. Repelling the said contention, the Division Bench held that, compensation for death definitely stands on a higher pedestal than the injuries, though a case involving injuries may attract compensation under some other relevant heads. Para.8 of the said judgment reads thus; “8. It is true that the said extent of compensation has been prescribed in the case of 'injuries'. But here, it is a case of 'death', which should stand on a higher pedestal than the injuries. There is a contention put forth by the learned counsel M.A.C.A.No.998/2008 -5- for the appellant, that living with serious injuries is extremely difficult and hence a higher extent of compensation may be justified in such cases. To some extent we agree with the said proposition insofar as in the case of a person who is having serious injuries and is supposed to live long, there may be various instances, such as added pain and sufferings, loss of amenities and enjoyment in life, necessity to engage a permanent attendant if at all, and such circumstances warranted, future treatment expenses and such other heads. But coming to the extent of compensation payable for death in relation to the compensation payable for injuries, compensation for death definitely stands on a higher pedestal than the injuries, though a case involving injuries may attract compensation under some other relevant heads.” 11. In **Vijayan's case (supra)** the accident occurred on 26.8.2004, resulting the death of a minor boy aged 13 years. Taking note of the decision of the Apex Court in **Kishan Gopal v. Lala [(2014) 1 SCC 244]** and **Lata Wadhwa v. State of Bihar [(2001)** **8 SCC 197]** the Division Bench declined interference on the assessment of compensation by the Tribunal fixing 3,000/- as the₹ notional monthly income. Para.14 of the said judgment reads thus; “ **14.** During the course of hearing the learned counsel appearing for the claimant pointed out with reference to the decision rendered by the Supreme Court in Kishan Gopal and another v. Lala and others [(2014) 1 SCC 244] that the multiplicand fixed in the said case in respect of a child aged 10 years was ₹30,000 per annum and the multiplier adopted was M.A.C.A.No.998/2008 -6- '15' in respect of such child. The learned counsel submits that it was a case where the accident occurred on 26.08.2004 and as such, there is nothing wrong in having accepted a higher multiplicand in the instant case and also adopting a higher multiplier so as to fix the extent of compensation. On going through the said verdict it is seen that the notional income was fixed by the Apex Court in the said case applying the principle in Lata Wadhwa and others v. State of Bihar [(2001) 8 SCC 197]. It was found based on the evidence adduced in Lata Wadhwa's case that the victim in the said case, though aged 10 years, was actually assisting the parents in the agricultural operations and was accordingly that appropriate extent was fixed as the proper multiplicand, thus fixing the same as ₹30,000 per annum. No such situation is available in the instant case and the victim was a student. However, considering the date of accident and such other adverse circumstances, the Tribunal has fixed ₹3,000/- as the notional monthly income and worked out the compensation accordingly, which can't be held as wrong.” 12. In the instant case, the claim petition is one filed under Section 163A of the Motor Vehicles Act. Going by clause 6(a) of the Second Schedule to the Motor Vehicles Act, in the matter of assessment of compensation, the notional income of a non-earning person should be taken a 15,000/-. In ₹ **Puttamma v. K. L. Narayana Reddy [(2013) 15 SCC 45]** the Apex Court held that Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable, due to changed scenario including the M.A.C.A.No.998/2008 -7- present cost of living and current rate of inflation and increased life expectancy. Considering the fact that, in the instant case the accident is of the year 2005 and at the time of accident, the deceased was aged 9 years, the annual income for the purpose of assessment of compensation can be fixed notionally at 24,000/-. As per the Second₹ Schedule, the compensation payable in fatal accidents for victims upto 15 years, with an annual income of 24,000/-, is 4,80,000/-.₹ ₹ Deducting 1/3[rd] towards expenses which would have incurred by the deceased, the compensation payable comes to ₹3,20,000/(4,80,000x2/3), resulting an additional compensation of **₹1,70,000/-** (3,30,000–1,50,000). 13. The compensation awarded by the Tribunal under other heads is in terms of the Second Schedule of the Motor Vehicles Act, which requires no interference in this appeal. 14. In the result, the appellants/claimants will be entitled for an additional compensation of **₹1,70,000/-** in this appeal, which will carry interest at the rate of 9% per annum from the date of filing of the claim petition till realisation. The 1[st] respondent owner shall deposit the said amount before the Tribunal, within a period of one month from the date of receipt of a certified copy of this judgment. The appellants/claimants shall satisfy the additional court fee payable for M.A.C.A.No.998/2008 -8- total compensation in excess of ₹2,50,000/-, the total claim made in the claim petition. 15. As we have already noticed, the offending bus bearing registration No.KL-8/C-3004, which is an educational institution bus, is owned by the 1[st] respondent, namely, the Principal, Seethi Sahib Memorial High School, Theyyalingal, which is an aided school situated in Malappuram District. The pleadings and materials on record would show that, at the time of accident, the Manager/Principal of the school had permitted the 2[nd] respondent driver to ply the said vehicle in public road without a valid insurance policy, in flagrant violation of the mandatory requirements under Section 146 of the Motor Vehicles Act, 1988, which deals with necessity for insurance against third-party risk. Sub-section (1) of Section 146 mandates that, no person shall use except as passenger, or cause or allow any other person to use, a motor vehicle in public place, unless there is in force in relation to the use of the vehicle by that person or that other person as the case may be, a policy of insurance complying with the requirements of Chapter XI. As per the Schedule to the Kerala Motor Vehicles Taxation Act, 1976 motor vehicles permitted to ply as Contract Carriages and solely used as educational institution bus are levied only a nominal amount as tax, when compared to regular Contract Carriages. Despite such M.A.C.A.No.998/2008 -9- concessions, the Manager/Principal of the school had permitted the 2[nd] respondent driver to ply the said vehicle in public place without a valid insurance policy. It is for the State Government to take stringent action to curb such unauthorised use of educational institution buses in public places, within the State. Registry shall forward a copy of this judgment to the Secretary to Government, General Education Department, Government of Kerala for information and necessary action. The appeal is disposed of as above. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn True copy P.S. to Judge