Iffco Tokio General Insurance Co. Ltd. v. Muhammad and others (MACA No. 908 of 2011)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, ``` ``` 1943 ``` ## `MACA NO. 908 OF 2011` ``` AGAINST THE AWARD DATED 02.01.2010 IN OP(MV)NO.968/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA, KOZHIKODE ``` ## `APPELLANT/RESPONDENT NO.3` ``` IFFCO TOKIO GENERAL INSURANCE CO.LTD, NOW REPRESENTED BY ITS LEGAL MANAGER, HEAD-CUSTOMER SERVICE CENTRE, IFFCO TOKIO, GENERAL INSURANCE CO.LTD., KSCMF BUILDING, 3RD FLOOR, CUNNINGHAM ROAD, BANGALORE. ``` ``` BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.SRI.P.JACOB MATHEW ``` ## `RESPONDENTS/ PETITIONERS:` ``` 1MUHAMMAD, S/O. IBRAHIM HAJI, AGED 36/2007 KALLADIKUNI, KOOTHALI AMSOM DESOM, REP. BY POWER OF ATTORNEY HOLDER, JALEELA, W/O.MUHAMMAD, KALLADIKUNI, KOOTHALI AMSOM DESOM, KOYILANDY TALUK-673 532. 2JALEELA, AGED 30 YEARS, W/O.MUHAMMAD, KALLADIKUNI, KOOTHALI AMSOM DESOM, KOYILANDY TALUK-673 532. 3MIRJAN, AGED 15 YEARS (MINOR), S/O.MUHAMMAD, KALLADIKUNI, KOOTHALI AMSOM DESOM, KOYILANDY TALUK-673 532. ``` M.A.C.A.No.908/2011 -:2:- ``` 4RIFANA, AGED 15 YEARS(MINOR), D/O.MUHAMMAD, KALLADIKUNI, KOOTHALI AMSOM DESOM, KOYILANDY TALUK, PETITIONERS NO.3 AND 4 ARE MINORS, REP. BY MOTHER, AND GUARDIAN JALEELA, AGED 30 YEARS, W/O.MUHAMMAD, KALLADIKUNI, KOOTHAL BY ADVS. SRI.S.K.BALACHANDRAN SMT.N.D.DEEPA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.908/2011 -:3:- Dated this the 10[th] day of November, 2021 ## **J U D G M E N T** The appellant – insurer – was the third respondent in O.P.(MV) No.968/2007 on the file of the Motor Accidents Claims Tribunal, Vadakara. The respondents in the appeal were the petitioners before the Tribunal. As the appellant has admitted the insurance policy and its liability, they have not impleaded the respondents 1 and 2 before the Tribunal as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of a five year child named ‘Rifa Fathima’(deceased), the M.A.C.A.No.908/2011 -:4:- daughter of the petitioners 1 and 2 and the sibling of the petitioners 3 and 4. It was their case that, on 03.05.2007, while the deceased was proceeding to her house along with her mother and grandmother, when they reached the place of accident, a parcel van bearing registration No.KL-11/R-4442 (van), driven by the second respondent in a negligent manner, hit the deceased. She lost her life on the way to hospital. The petitioners suffered severe hardship and mental agony due to the death of the deceased. The first respondent was the owner and the third respondent was the insurer of the van. Hence, the petitioners claimed a compensation of Rs.5,00,000/- from the respondents. 3. The respondent Nos.1 and 2 did not contest the proceedings. 4. The third respondent-insurer had filed a written statement, admitting that the van had a valid insurance It was contended that the coverage. M.A.C.A.No.908/2011 -:5:- compensation claimed was excessive. 5. The petitioners produced and marked Exts.A1 to A8 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record and relying on the decision of the Hon’ble Supreme Court in **R. K. Malik & Anr. v. Kiran Pal & Ors.** [2009 ACJ 1924] allowed the claim petition in part, by permitting the petitioners to realise from the third respondent an amount of Rs.2,90,000/with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.3,000/-. 7. Aggrieved by the impugned award, the third respondent is in appeal. 8. Heard; Sri. P. Jacob Mathew, the learned counsel appearing for the appellant/third respondent and Sri. S.K. Balachandran, the learned counsel M.A.C.A.No.908/2011 -:6:- ## appearing for the respondents/ petitioners. 9. The principle grounds of challenge in the memorandum of appeal are: - (i) the notional income fixed by the Tribunal is on the higher side; - (ii) the Tribunal ought to have deducted 50% of the compensation amount towards the ‘personal living expenses’ of the deceased. ## **Ground No.(i)** 10. Admittedly, the deceased was a minor girl child aged five years at the time of the accident/death. The Tribunal, following the principles in the erstwhile Second Schedule of the Motor Vehicles Act, 1988(Second Schedule) and considering the fact that the deceased was only aged five years at the time of the accident, has fixed the notional income of the deceased at Rs.22,500/- per annum. The Tribunal also has deducted[1] /3rd of the compensation towards the M.A.C.A.No.908/2011 -:7:- ‘personal living expenses’ of the deceased as prescribed in the Second Schedule. Accordingly, the Tribunal has arrived at a figure of Rs.2,25,000/towards ‘loss of dependency’. 11. Likewise, the Tribunal relying on the decision of the Hon’ble Supreme Court in **R. K. Malik** (supra), has awarded an amount of Rs.15,000/- each to the petitioners under the conventional heads, totalling to an amount of Rs.60,000/-, Rs.1,000/- towards ‘transportation expenses’ and Rs.4,000/- towards ‘funeral expenses’. 12. It is to be remembered that the accident occurred as early as on 03.05.2007. At that point of time, the Tribunal without no settled principles of law with regard to payment of compensation in the case of death of minor children, rightly relied on the parameters in the Second Schedule and fixed the compensation. M.A.C.A.No.908/2011 -:8:- 13. It is only in the recent years that the Hon’ble Supreme Court in **Kishan Gopal v. Lala** [(2014) 1 SCC 244] has fixed the notional annual income of a minor child at Rs.30,000/- and has adopted the multiplier of ‘15’. Again, the Hon’ble Supreme Court in **Rajendra Singh v. National Insurance Company Ltd.** [2020 (4) KLT 6(SC], has fixed the notional income of a 12 year old child at Rs.36,000/- per annum and adopted the multiplier at ‘15’; but deducted one-half of the compensation towards the ‘personal living expenses’ of the deceased. 14. Likewise, this Court in **National Insurance Company Ltd. v. Assainar** [2019(4) KLT 39] has fixed the notional monthly income of children in the age group of 6-15 years at Rs.24,000/- per annum and has directed[1] /3rd of the compensation to be deducted towards the ‘personal living expenses’ of the deceased. 15. Going by the above broad principles and M.A.C.A.No.908/2011 -:9:- yardstick laid down by the Hon’ble Supreme Court and this Court in the above referred decisions, I do not find much variation in the compensation that has been awarded by the Tribunal as per the impugned award. 16. It is brought to my notice by the learned counsel for the respondents/petitioners that the entire compensation amount as per the impugned award was disbursed to the respondents. Although the appeal was filed, the same has till date not been admitted and this Court declined to stay the operation of the impugned award. 17. At this distance of time, particularly taking note of the fact that the Tribunal has awarded reasonable and just compensation following the principles in the Second Schedule and also that the entire compensation has already been disbursed to the respondents/petitioners, I do not find any ground warranting the admission of the appeal, that too after M.A.C.A.No.908/2011 -:10:- a decade after it is filed. On an appreciation of the pleadings and materials on record, I do not find any error or illegality in the impugned award warranting interference by this Court in exercise of its appellate jurisdiction. In the result, I dismiss the appeal confirming the impugned award passed by the Tribunal. In the peculiar facts and circumstances of the case, the parties shall bear their respective costs. All pending interlocutory applications will stand closed. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/10.11.21 //True copy/ P.A.To Judge