Kaithakath Abdul Nazer, Kaithakath Soudabi, Mohammed Adnan and Mohammed Adil v. Sandu Sagar A.K., Rajesh and The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 6TH DAY OF JULY 2017/15TH ASHADHA, 1939 MACA.No. 843 of 2012 () -----------------------AGAINST THE AWARD IN DATED 28.02.2012 IN ***** (OP(MAC) 83/2011) **[CORRECTED]** OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR ## APPELLANTS/PETITIONERS: ------------------------------------------ 1. KAITHAKATH ABDUL NAZER - S/O. ALAVIKUTTY, KANDANAKATH HOUSE, P.O. VELIMUKKU SOUTH, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. KAITHAKATH SOUDABI - W/O. ABDUL NAZAR, KANDANAKATH HOUSE, P.O. VELIMUKKU SOUTH, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 3. MOHAMMED ADNAN - S/O. ***** (ABDUL KADER) **[CORRECTED]** (MINOR), KANDANAKATH HOUSE, P.O. VELIMUKKU SOUTH, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 4. MOHAMMED ADIL, S/O. ***(** ABDUL KADER) **[CORRECTED]** (MINOR), KANDANAKATH HOUSE, P.O. VELIMUKKU SOUTH, TIRURANGADI TALUK, MALAPPURAM DISTRICT. (APPELLANTS 3 AND 4 REPRESENTED BY FATHER ABDUL NAZAR) ## BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENTS : - ------------------------ 1. SANDU SAGAR A.K., S/O. GOPALAN.A, ANAPPALLI VEEDU, PANAKKADU, KARIMAM.P.O, TALIPARAMBA - 670 141. 2. RAJESH, SREENIVAS HOUSE, NEAR ST. MARY'S HIGH SCHOOL, PARIYAPURAM.P.O, ANGADIPURAM, MALAPPURAM DISTRICT - 679 321 3. THE NEW INDIA ASSURANCE CO.LTD., TARIFF BAZAR, OPP.TOWN HALL, TIRUR P.O., MALAPPURAM DIST. - 676 101 R3 BY ADV. SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## AV The cause title of the judgment dated 06/07/2017 in MACA No.843/2012 is corrected as follows as per order dated 31/01/2019 in I.A No.1080/2018. - (1) OP (MAC)No.83/2011 is corrected as 'OP(MAC) No.63/2011'. - (2) The name of father of the 3[rd] and 4[th] appellants is corrected as 'Kaithakath Abdul Nazer' Sd/- **ASSISTANT REGISTRAR** 27.02.2019 ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. -----------------------------------M.A.C.A.No.843 of 2012** **----------------------------------Dated this the 6[th] day of July, 2017** ## **J U D G M E N T** ## Ravikumar, J This appeal seeking enhancement of compensation is filed by the petitioners in O.P.(MAC).No.83/2011 against the judgment and award passed by the Motor Accidents Claims Tribunal, Tirur thereon. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the death of a minor by name Risvana Kaithakkath, the daughter of appellants 1 and 2 and sister of respondents 3 and 4. The accident occurred on 30.04.2008 at about 1 p.m. On that fateful day, when she was standing by the side of a road at Velimukku, the offending vehicle, a motorcycle bearing Registration No.KL-10T/275 driven by the first respondent knocked her down. She sustained serious injuries and succumbed to such injuries on 01.05.2008 from the Medical College Hospital, Calicut. She was then aged 7 years. It is in the said circumstances that the claim petition was filed seeking a total compensation of 5,00,000/-. The evidence before the Tribunal₹ consisted only of the documentary evidence on the side of the appellants, viz., Exts.A1 to A13. The Tribunal, on appreciating the rival contentions and evaluating the evidence on record, passed the 2 M.A.C.A.No.843 of 2012 impugned award for a total compensation of 65,000/- with interest₹ @ 7.5% per annum from the date of the petition, till realisation along with a cost of 4,500/-. This appeal is filed on being aggrieved₹ by the alleged inadequacy of the quantum of compensation awarded by the Tribunal. 2. We have heard the learned counsel for the appellants and also the learned counsel for the third respondent. Since there is no dispute regarding the liability of the third respondent to indemnify the insured owner of the offending vehicle, the sole question to be considered in this appeal is as to whether or not the appellants are entitled to get enhanced compensation. 3. The learned counsel appearing for the appellants contended that it is the erroneous estimation of the compensation under different heads that virtually deprived the appellants the just compensation. It is contended that for the death, only a meagre amount of 50,000/- was granted. Under the head loss of love and₹ affection, only an amount of 7,500/- was granted and towards₹ funeral expenses, an amount of 5,000/- alone was granted. An₹ amount of 2,000/- was granted towards transportation expenses. It₹ is submitted by the learned counsel for the appellants that a mere perusal of the schedule of compensation given in the impugned award would reveal that the Tribunal has granted compensation M.A.C.A.No.843 of 2012 3 under the aforesaid heads meagrely and at the same time declined to grant compensation to which the appellants are entitled under certain other heads. Per contra, the learned counsel appearing for the third respondent submitted that taking into account the fact that the deceased was a minor aged 7 years, compensation granted by the Tribunal cannot be said to be so meagre warranting an interference and in truth, it is nothing but just compensation. Having given our anxious consideration to the rival contentions, we are of the considered view that an appellate interference is called for in this case. Evidently, the appellants were denied the just compensation. 4. A perusal of paragraph 14 of the impugned award would reveal that, virtually what was granted for the death in this case is nothing, but the compensation payable under Section 140 of the Motor Vehicles Act. Besides granting the amount to which the appellants are entitled in terms of the provisions under Section 140 of the Motor Vehicles Act, only an amount of 15,000/- was granted₹ by the Tribunal. On going through the schedule of compensation and also the discussions regarding the manner in which the assessment of compensation was made by the Tribunal, we have no hesitation to hold that it is a palpably erroneous estimation of the quantum of compensation and it virtually deprived the appellants M.A.C.A.No.843 of 2012 4 the just compensation to which they are entitled in terms of the provisions under Section 166 of the Motor Vehicles Act. It is true that victim was aged only 7 years at the time of accident. Can that be a reason for granting an awfully low quantum of compensation for all accidental death involving a motor vehicle. The fact that she was a student and thereby a non-earning person, cannot be a ground for depriving the due compensation to her parents and sibblings. 5. In the contextual situation, it is only relevant to refer to a decision of the Honourable Apex Court in _**R.K.Malik and Another**_ ## _**v. Kiran Pal and Others [(2009) 14 SCC 1]**_ . Going by the said judgment, in the case of minor children, who are non-earning persons, for the purpose of identifying the multiplier as also the multiplicand, the second schedule to the Motor Vehicles Act can be relied on. As per the said decision, the multiplier and the multiplicand have to be taken based on the second schedule even in a case where the application for compensation is filed under Section 166 of the Motor Vehicles Act. In fact, the multiplicand was taken as ₹30,000/-. In view of the decision in _**R.K.Malik** 's_ case, the multiplier has to be taken as 15 and the multiplicand has to be taken as ₹30,000/-. A Division Bench of this Court, in which one of us (Anil K.Narendran, J) was a party, has held in the decision in _**New India**_ M.A.C.A.No.843 of 2012 5 _**Assurance Co. Ltd. v. Vijayan [2016 (1) KLT 704]**_ that when compensation for death is calculated in the aforesaid manner after identifying the multiplier and the multiplicand, in the light of the second schedule, 1/3[rd] of the income has to be deducted towards personal and living expenses. In such circumstances, on reassessment of compensation for death, taking into account the aforesaid factors, the appellants are entitled to get an amount of ₹3,00,000/- (30,000x15x2/3). Over and above the amount awarded under the said head the appellants are also entitled to get compensation under other permissible heads. Towards loss of love and affection the Tribunal has granted only a meagre amount of ₹7,500/-. As noticed hereinbefore the deceased was only aged 7 years and evidently she was the only daughter of appellants 1 and 2 and the only sister of appellants 3 and 4. In such circumstances and also taking note of the fact that the accident occurred in the year 2008, we are of the view that the compensation payable under the said head has to be calculated based on the dictum laid down in the decision in _**Rajesh v. Rajbirsingh [2013 (3) KLT 89]**_ . The accident involved in the said case had occurred in the year 2007. In that view of the matter, the appellants are entitled to get an amount of 92,500/- additionally under the said head. Going by the said₹ decision, in the absence of evidence of higher expenses, a minimum 6 M.A.C.A.No.843 of 2012 of 25,000/- has to be granted towards funeral expenses. The₹ Tribunal has granted only an amount of 5,000/- under the said₹ head. Hence, the appellants are entitled to get an amount of ₹20,000/- additionally under that head. Towards loss of estate, no amount was granted. We are inclined to grant an amount of ₹5,000/- under that head. Towards pain and sufferings, no amount was granted by the Tribunal. Evidently, on sustaining serious injuries in the accident that occurred on 30.04.2008, the appellant was taken to Medical College Hospital, Calicut and she breathed her last from there only on 01.05.2008. In the said circumstance, it is evident that she had to suffer excruciating pain due to the injuries sustained in the accident. Considering the same, we are inclined to grant an amount of 10,000/- under the head pain and sufferings.₹ The nature of the injuries sustained by her would undoubtedly suggest that the dresses worn by her must have been damaged. Hence, under the head damage to clothing, an amount of 1,000/- is₹ granted. In the light of the assessment/enhancement in compensation made by us, the appellants are entitled to get an additional compensation of 3,78,500/-. It is awarded. The said₹ additional amount will carry interest @ 8% per annum from the date of petition, till realisation. The third respondent is directed to deposit the said amount along with interest thereon, within a period of two M.A.C.A.No.843 of 2012 7 months from the date of receipt of a copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** AV /True Copy/ P.A to Judge **“O.P(MAC)No.83/2011”** shown in the 2[nd] line in the first paragraph of the judgment dated 06/07/2017 in M.A.C.A No.843/2012 is corrected and substituted as **“O.P(MAC) No.63/2011”** as per order dated 31/01/2019 in I.A No.1080/2018 in M.A.C.A No.843/2012. Sd/- **Deputy Registrar**