Kunhayissa and Moossa v. K.K. Shaju and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 MACA.No. 2133 of 2005(B) -----------------------OPMV.1063/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... ## APPELLANT(S): APPELLANTS/PETITIONERS: ------------------------------------- 1. KUNHAYISSA, W/O. MOOSA, AGED 35 YEARS, KOMMILOTH HOUSE, CHEMMARATHUR P.O., VATAKARA, PIN-673 104. 2. MOOSSA, S/O. SOOPY, AGED 47 YEARS, KOMMILOTH HOUSE, CHEMMARATHUR P.O., VADAKARA, PIN-673 104, BY POWER OF ATTORNEY THE 1ST APPELLANT. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENTS --------------- 1. K.K. SHAJU, S/O. KUNHIRAMAN, AGE NOT KNOWN THACHAN, KUNNUMMAL HOUSE, P.O. KOLUR, MELADY, KOYILANDY TALUK, PIN-673 522. 2. SUNIL M.T., S/O. CHATHU, AGE NOT KNOWN, MOTTANTHARAMMAL HOUSE, P.O. THODANNUR, VADAKARA, PIN-673 108, D/L.NO.1442/2000 DB, BADGE NO.318/2000 3. THE ORIENTAL INSURANCE CO.LTD., SCREENITHI BUILDING, POST BOX NO.27, NARAYANA NAGAR, P.O.VADAKARA-673 101, POLICY NO.YR.NO.2001/2102, DEVELOPMENT OFFICER CODE 335, AGENT CODE 816, CERTIFICATE NO.290 151. 4. SURESH BABU, S/O. KANARAN, AGE NOT KNOWN, KOROTH MEETHAL HOUSE, MANDARATHUR POST, VADAKARA-673 505. 5. SATHEESAN. K.M., S/O. KANARAN, AGE NOT KNOWN, KOROTH MEETHAL HOUSE, P.O. MANDARATHUR, VADAKARA-673 505. 6. THE NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, TRIPURI BUILDINGS, EAST NADAKKAVU, CALICUT-673 011. ADV. SRI.A.C.DEVY FOR R6 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.2133 of 2005 ---------------------------------------Dated this the 5[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimants are the appellants. They are the parents of a minor child aged 6 years who succumbed to injuries suffered by him in a motor accident which took place on 19/10/2000. They claimed a total amount of Rs.4,00,000/- as compensation under Section 166 of the Motor Vehicles Act. The Tribunal, by the impugned award, directed payment of an amount of Rs.1,72,800/- as per the details given below: Loss of dependency Rs.1,50,000/(Rs.15,000/- x 2/3 x 15) Pain and suffering Rs.15,000/Funeral expenses Rs.2,000/Loss of love and affection Rs.5,000/Transportation Rs.8,000/Total Rs.1,72,800/- 2. The learned counsel for the appellant contends that the tribunal grossly erred in awarding only an amount of 2 M.A.C.A.No.2133 of 2005 Rs.1,72,800/-. Atleast the amount payable under Section 163A must have been awarded as compensation, contends the learned counsel for the appellant . The learned counsel for the appellant in this context places reliance on the decisions in **National Insurance Co.Ltd. v. Muneer [2003(1) KLT 137]** and **R.K.Malik v. Kiran Pal [(2009)14 SCC 1].** 3. We feel it absolutely safe to come to a conclusion that atleast in respect of non-earning children it can safely be insisted that the amount of compensation awarded under Section 166 of the M.V.Act should not and cannot fall below the amounts that would be payable under Section 163A of the M.V.Act. 4. So reckoned, we shall now attempt to ascertain the quantum of compensation payable in this claim, if it were considered as one under Section 163A of the M.V.Act. The deceased was a child aged 6 years and he comes in the first horizontal column of the table/chart in clause 1 of the second schedule. Armed with the presumption under clause 6(a) of the second schedule, the monthly income of the non-earning deceased can be reckoned as Rs.15,000/- and he therefore falls in the tenth vertical column dealing with persons of the income 3 M.A.C.A.No.2133 of 2005 group above Rs.12,000/- up to Rs.18,000/-. The relevant entry shows that the amount payable is Rs.2,40,000/-. From this, 1/3 is to be deducted towards the personal expenses of the deceased. We thus come to the conclusion that the appellants would be entitled for an amount of Rs.2,44,500/- as per the details given below: - i) Specified amount under clause 1 - Rs.2,40,000/of the second schedule (Rs.3,60,000/- x 2/3) - ii) Funeral expenses under clause - Rs. 2,000/3(1) - iii) Loss of estate under clause 3(3) - Rs. 2,500/- **Total Rs.2,44,500/-** 5. We are satisfied that the said amount is payable under Section 163A of the M.V.Act. Consequently, we hold that the appellants are entitled to atleast that amount in a claim under Section 166. The learned counsel for the appellants contends that the interest awarded is painfully low. Interest has been awarded only at the rate of 6% per annum. We are satisfied that interest can be directed to be paid at the rate of 7.5% per annum. 4 M.A.C.A.No.2133 of 2005 6. In the result, - a) This appeal is allowed in part. b) Appellants are found entitled to a total amount of ## **Rs.2,44,500/- (Rupees two lakhs forty four thousand and** **five hundred only)** as compensation in supersession of the direction issued by the tribunal. c) The compensation amount shall carry interest at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation. d) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** - **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.2133 of 2005 5 6 M.A.C.A.No.2133 of 2005 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010