MACA No. 2336 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 25TH DAY OF JANUARY 2017/5TH MAGHA, 1938** **MACA.No. 2336 of 2013 () -------------------------** **AGAINST THE AWARD IN OPMV 1150/2010 of MACT VATAKARA DATED 31-12-2012** **APPELLANT/RESPONDENT NO.3:** **----------------------------** **THE UNITED INDIA INSURANCE CO. LTD. REGIONAL OFFICE, ERNAKULAM, REPRESENTED BY ITS REGIONAL MANAGER.** **BY ADV. SRI.JOHN JOSEPH VETTIKAD** **RESPONDENTS/CLAIMANT/RESPONDENT 1 AND 2** **--------------** **1. P.K. SURESH** **S/O.KUNHIKRISHNAN NAIR, AGED 47 YEARS,RESIDING AT PONNARKANDIYIL HOUSE VATTAYAM P.O., KAKKATTIL, KUTTIYADY VIA, VATAKARA TALUK, KOZHIKODE DISTRICT-673 518.** **2. REMANI BAI W/O.P.K.SURESH,AGED 41 YEARS, RESIDING AT PONNARKANDIYIL HOUSE, VATTAYAM P.O., KAKKATTIL, KUTTIYADY VIA, VATAKARA TALUK, KOZHIKODE DISTRICT-673 518.** **3. K.MAHAMOOD** **S/O.BEERANKUTTY, KUPPANGAL HOUSE, KUNNATHARA P.O., QUILANDI TALUK, KOZHIKODE DISTRICT-673 327.** **4. SREEDHARAN P.O. S/O.PERACHAN, PALLIPATIKKAL HOUSE, KUNNATHARA P.O., QUILANDI TALUK, KOZHIKODE DISTRICT-673 327.(DELETED)** *** RESPONDENT NO.4 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 17/09/2014 IN I.A.NO.2647/2014.** **R1,R2 BY ADV. SRI.ZUBAIR PULIKKOOL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.2336 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of January, 2017 ## **JUDGMENT** ## Jyothindranath, J. This appeal is filed by the third respondent Insurance Company in O.P.(MV)No.1150/2010 on the file of the Motor Accidents Claims Tribunal, Vatakara. The grievance of the appellant is that the Tribunal had granted exorbitant compensation under the head loss of dependency. 2. The facts in a nut shell is as follows : A motor vehicle accident occurred on 07.01.2010 at about 10 a.m. . In the said accident, a minor child aged 9 years sustained very grievous injuries and succumbed to it on the same day. Considering the age of the deceased, the Tribunal considered a sum of Rs.4,000/- per month as the notional monthly income for assessment purpose and awarded a total compensation of Rs.5,29,000/-. The said quantum is MACA No.2336/2013 2 under challenge. 3. When the appeal came up for hearing, the learned counsel appearing for the Insurance Company submitted before us that in this case, the Tribunal erred in considering Rs.4,000/- as the monthly income of deceased child for calculation purpose. It is the further submission that when the death is in respect of a minor child, the maximum amount that can be considered is only Rs.15,000/- per annum. It is also submitted that when the age of the deceased is only 9 years, the Tribunal erred in adding 50% of the amount towards future prospects. Thus, the compensation awarded by the Tribunal is on a higher side. 4. The learned counsel appearing for the respondent/claimant submitted before us that here is a case where the only child of the claimants died in the accident. The learned counsel submitted that in **Lata Wadhwa and others v. State of Bihar and others ( AIR 2001 SC 3218)** , in the case of death of a child, the Apex Court considered the annual income as Rs.24,000/-. It is a case where the accident MACA No.2336/2013 3 occurred in the year 1989. Thereafter about 20 years passed. The passage of time could have been taken by the Tribunal for calculation purpose. It is submitted that no illegality is committed by the Tribunal in following the dictum laid down by the Apex Court in **Sarla Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT 802 (SC)** . Hence, no interference by this Court is warranted. 5. In this case, it can be seen that the Tribunal considered a monthly income of Rs.4,000/-. Surely, the court has to consider the fact that the deceased was only a child that also aged only 9 years. As per the dictum laid down by the Apex Court in **R.K.Malik v. Kiran Pal [(2009) 14 SCC 1]** , schedule attached to Section 163 A of the Motor Vehicles Act has to be followed ( para 14 of the said decision). As per the schedule attached to Section 163 A of the Motor Vehicles Act, the income of the child can be taken only as Rs.15,000/- per annum. No special circumstance is seen proved to deviate from the above proposition of law. It is to be remembered that only because the death of a minor child occurred, it cannot be positively said that for MACA No.2336/2013 4 assessment of compensation, an income of Rs.4,000/- can be taken. It is to be remembered that in the case of a coolie who met with an accident in the year 2004, the Apex court fixed his monthly income as Rs.4,500/- (see **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. [( 2011) 13 SCC 236]** . It is also to be remembered that it is the income of an earning person. Surely, if there is positive evidence regarding the performance in the school, reputation of school and other aspect of the child, guess work can be made regarding his/her prospects in future. But in the absence of any such material, it may not be proper to consider an income that of an earning person i.e. what this court is highlighting is that when the positive case of the claimants is that the deceased is a child who is actually depending upon the parents for food and other necessities and when there is no other evidence showing that he was far ahead in his performance compared to similar students of his age group, for assessment of compensation, it may not be proper to take a notional income of an earning person who is supporting his family. Under such circumstances, it can be only held MACA No.2336/2013 5 that the notional income fixed by the Tribunal as Rs.4,000/- per month is certainly on the higher side, in the circumstances explained hereinbefore. It is also relevant to note that an addition towards future prospects is also made. Further the amount of Rs.4000/- was fixed considering the fact that after attaining majority, he may earn such an amount. The Tribunal erred in this aspect. 6. The accident involved in R.K.Malik's case occurred on 18.11.1997. As noticed hereinbefore, the Hon'ble Apex Court held therein that in the case of children who are to be considered as nonearning persons, even in respect of claims for death filed under Section 166 of the M.V.Act the second schedule to the M.V.Act applicable in the case of claims under Section 163 A of the Act, has to be followed. In paragraph 29 therein there is a reference about Latha Wadhwa's case whereunder it was held that contribution of each child towards the family, in such circumstances, should be taken as Rs.24,000/- per annum instead of Rs.12,000/- per annum as recommended by Justice Y.V.Chandrachud Committee. Taking note of the lapse of year since MACA No.2336/2013 6 the accident involved in R.K.Malik's case and the aforesaid findings we are of the considered view that it will be only just and proper to consider Rs.24,000/- as the notional annual income for calculation purpose. 7. Thus, the total compensation has to be reassessed by taking a notional income of Rs.24,000/- per annum and also using a multiplier of 15. The multiplier is considered by taking into account the schedule attached to Section 163 A. Thus, the amount available towards loss of dependency will be Rs.3,60,000/- ( Rs.24,000/- x 15). Apart from the same, the appellants will be entitled to get an amount of Rs.25,000/towards funeral expenses as held in **Rajesh v. Rajbir Singh [ 2013(3) KLT 89 (SC)]** . Towards transportation expenses, a sum of Rs.3,000/is granted. Towards loss of love and affection as against a claim of Rs.4 lakhs the Tribunal granted only an amount of Rs.15,000/-. Evidently, the deceased was the only issue of respondents 1 and 2/the claimants who are his parents. At the time of filing of the claim petition they were aged 44 years and 38 years respectively. Evidently, MACA No.2336/2013 7 even after about 9 years since the birth of Arathi, the deceased the said couple did not beget any other child. They were bestowing all their attention to bring up Arathi. Now, they lost her. How can the said loss be restored to them. Under normal circumstances, hereinafter they have to lead the life of an issueless couple. Taking into account all such circumstances we are of the considered view that the amount awarded under the aforesaid head is too meagre and hence, we award an amount of Rs.1,00,000/- under that head. True that Arathi died on the same day of the accident. But, the case of the claimants that immediately after the accident Arathi was taken to Medical College Hospital, Kozhikode and she succumbed to the injuries from there is not disputed. In the said circumstances, we are inclined to grant an amount of Rs.5,000/towards compensation for pain and sufferings. The appellants are not entitled for compensation under any other heads of pecuniary loss. Thus, the appellants is entitled to get a total compensation of Rs.4,93,000/-. Thus, the impugned award is set aside and the just compensation MACA No.2336/2013 8 is reassessed as Rs.4,93,000/- with interest @ 8% per annum from the date of petition till realization. The compensation shall be paid by the appellant insurance company within two months from the date of receipt of a copy of this judgment. If any amount is paid under Section 140 of the Motor Vehicles Act, that amount has to be deducted from the compensation payable. There will be no order as to costs. **C.T.RAVIKUMAR, JUDGE** **K.P.JYOTHINDRANATH, JUDGE** sv.