M.A.C.A. No.1369 of 2005

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 MACA.No. 1369 of 2005() ----------------------OPMV.1319/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPELLANTS/PETITIONERS 1 TO 3 IN THE O.P. ------------------------------------------------------- 1. KUMARI SREE DEVI, W/O. BHUVANENDRAN NAIR, AGED 42 YEARS, S.B.NIVAS, SANTHIVILA, UPANIYOOR DESOM, KALLIYOOR VILLAGE, NEMOM.P.O., THIRUVANANTHAPURAM. 2. P.BHUVANENDRAN NAIR, S/O.PARAMESWARAN NAIR, S.B.NIVAS, SANTHIVILA, UPANIYOOR DESOM, KALLIYOOR VILLAGE, NEMOM.P.O, THIRUVANANTHAPURAM. 3. PRAVEEN, S/O. BHUVANENDRAN NAIR, S.B.NIVAS, SANTHIVILLA, UPANIYOOR DESOM, KALLIYOOR VILLAGE, NEMOM.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.POOVAPALLY M.RAMACHANDRAN NAIR SRI.ABHISHEK R.V. RESPONDENT(S): --------------- 1. THE MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM. 2. VISWAMBHARAN, **(DELETED)** S/O. JOSEPH, GEETHA BHAVAN, NEAR THATTAMALA.P.O., ALATHUR, PERUMKADAVILA, THIRUVANANTHAPURAM. .......2 -: 2 :- 3. THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, ST.JOSEPH PRESS BUILDING, VAZHUTHACAUD, THIRUVANATHAPURAM. ADV. SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC FOR R1 SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R1 SRI.LAL GEORGE FOR R3 RESPONDENT NO.2 IS DELETED FROM THE ARRAY OF PARTIES VIDE ORDER DATED 14/7/2011 IN I.A. NO.1842/11 IN MACA NO.1369/05. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & N.K. BALAKRISHNAN, JJ.** **------------------------------------------------M.A.C.A. No.1369 of 2005-C ------------------------------------------------Dated this the 27[th] day of July, 2011** ## **JUDGMENT** ## **Basant,J.** How is compensation payable for loss suffered by the parents in the case of death of a non-earning minor child to be assessed? Can the Tribunals insist that such compensation payable under Sec.166 of the Motor Vehicles Act cannot fall below the amount that would be payable under Sec.163A of the M.V. Act? These questions arise for consideration in this appeal. 2. The claimants are the appellants. They are the parents and brother of the deceased - a child aged 15 years who suffered injuries in a motor accident which took place on 3/11/1999 and succumbed to the same. The claimants lodged a claim for compensation under Sec.166 of the Motor Vehicles Act. Against a claim for `5,00,000/-, the Tribunal awarded a total amount of `1,86,000/- as compensation as per the details shown below: - - 1. Loss of dependency `1,50,000/(15000 x 2/5 x 15) - - 2. Loss of estate ` 15,000/- ## **M.A.C.A. No.1369 of 2005** -: 2 :- |3.|Loss of love and affection|-|` 10,000/-| |---|---|---|---| |4.|Funeral and transportation|-|` 5,000/-| |5.|Damage to clothing|-|` 1,000/-| |6.|Pain and suffering|-|` 5,000/-| ||||----------------| ||Total|-|`1,86,000/-| ||||(@ 9% per annum)| ||||=======| 3. The challenge is directed only against the quantum of compensation awarded. We have heard the learned counsel for the appellants/claimants and the learned counsel for the 3[rd] respondent/insurance company. The learned counsel for the appellants assails the impugned award on various grounds. 4. First of all, it is contended that the quantum of compensation fixed by the Tribunal is painfully low and inadequate. Called upon to be more specific, the learned counsel for the appellants submits that the quantification of the loss of dependency is grossly inadequate and unscientific. The Tribunal erred in reckoning the annual income as `15,000/-. The Tribunal did not realistically take into account the status and position in life of the parents of the deceased child at all. If the Tribunal had taken into consideration all the relevant aspects including the ## **M.A.C.A. No.1369 of 2005** -: 3 :- physical, mental and intellectual accomplishments of the child, a much higher multiplicand could have been reckoned. The gross error committed by the Tribunal is in reckoning only `15,000/- as the prospective annual income. The amount awarded by the Tribunal as compensation falls far below the amount which would have been payable if the claim were raised under Sec.163A of the M.V. Act. They are entitled for a much higher amount as compensation, contends counsel. 5. The learned counsel for the appellants in this context draws our attention to the decision of the Supreme Court in M.S. Grewal v. Deep Chand Sood (AIR 2001 SC 3660) and Lal Wadhwa v. State of Bihar (AIR 2001 SC 3218). These were not cases in which the claim for compensation under the Motor Vehicles Act came up for consideration. The learned counsel for the appellants, however, points out that in these cases the Supreme Court had awarded much larger amount - about `5,00,000/- in both cases as compensation for loss suffered by the parents in the case of death of minor children of aged 15 years. 6. The computation of compensation payable in respect of minor children who have not started earning has been one of the vexing problems in the law relating to computation of ## **M.A.C.A. No.1369 of 2005** -: 4 :- compensation. There are several imponderables and to arrive at a figure by deploying the multiplier-multiplicand method is always problematic. As observed by the Supreme Court in Lal Wadhwa (supra), loss of a child to the parents is irrecoupable and no amount of money could compensate the parents. The child had not started earning and the court will have to speculate on the possible earnings of the child. Sufficient inputs to authentically ascertain the possible future placement in life of the child will not be forthcoming. The courts have to provide for several imponderables. Provision has to be made for the accelerated lump sum payment of compensation also. No ready reckoner formula can be devised for such ascertainment of compensation. All relevant inputs have to be taken into account and the appropriate amount has to be ascertained. Position in life of the parents may not be crucially relevant or vital in such a situation. Suffice it to say that if the multiplier-multiplicand method were to be adopted, courts would do well to bear in mind the principles relating to computation of compensation in **Sarla Verma v. DTC** (2009) 6 S.C.C. 121). In respect of a child aged upto 15 years, **Sarla Verma** (supra) does not also prescribe any multiplier. The 2[nd] Schedule to the M.V. Act prescribes 15 to be a multiplier ## **M.A.C.A. No.1369 of 2005** -: 5 :- in the case of permanent disability; whereas the amounts which are stipulated as compensation payable in the case of death reveal that the framers of the scheme had reckoned 20 as the multiplier. 7. The real dispute is about the multiplicand that can be adopted. No better or satisfactory indications are available in the instant case to ascertain the probable income which the minor aged less than 15 years would have earned after he attains the age of earning. The Tribunal, in these circumstances, felt obliged to fall back on the presumption of prudence which courts are permitted to draw in a claim under Sec.163A of the M.V. Act in the case of non-earning persons. We are of the opinion that the Tribunal did not in any way commit any error in having chosen to fall back on that presumption of prudence considering the nature of the materials available in this case. 8. The learned counsel for the appellants submits that the Tribunal ought to have taken note of the education, employment and earning of the father of the child. It is further contended that the Tribunal should have taken note of the build, height and weight of the child as per the indications available in the postmortem certificate. An idea about the curricular and extra- ## **M.A.C.A. No.1369 of 2005** -: 6 :- curricular achievements of the child can also be gathered from the totality of inputs that were placed before the Tribunal. The learned counsel argues that, in these circumstances, a much higher multiplicand must have been taken by the Tribunal. 9. Computation of compensation is not a science of exactitude and it certainly is in the mixed realm of art and science. So many imponderables are to be taken into consideration. As rightly observed in certain precedents, the Tribunals will have to resort to “guesstimation”. In any view of the matter, we are unable to agree that the Tribunal can be found fault with for not accepting any multiplicand above `15,000/- per annum. At any rate, invoking our appellate jurisdiction under Sec.173 of the M.V. Act we are not persuaded to disagree or interfere with the conclusion of the Tribunal on that aspect. 10. Even if 20 were adopted as the multiplier, the appellants will be entitled only for a further amount of `50,000/as compensation i.e., `15000 x 2/3 x 20 (`2,00,000/- minus `1,50,000/-). That would mean that the appellants would be entitled only for a total amount of `2,36,000/- as compensation. 11. It is, in these circumstances, that the contention becomes relevant that the appellants should be awarded, at least, ## **M.A.C.A. No.1369 of 2005** -: 7 :- the amount payable under Sec.163A of the M.V. Act. Under Sec.168 of the M.V. Act the Tribunals are constituted to ensure that just and reasonable compensation is awarded to the victims of motor accidents. In a claim under Sec.163A of the M.V. Act not even negligence need be proved. Dependency also does not have to be proved. We have adverted to this aspect in judgment dated 22/7/2011 in M.A.C.A. Nos.223 and 243 of 2007 (National Insurance Company Limited v. P.C. Chacko and others). We are satisfied that in a claim for compensation in respect of the death of a minor child under Sec.166 of the M.V. Act the claimants must be held entitled, at least, to the amount which would have been payable if the claims were staked under Sec.163A of the M.V. Act. On this aspect, we are supported by the direct precedent in **National Insurance Co. Ltd., v. Muneer** (2003 (1) KLT 137). The observations of the Supreme Court in paragraph-14 of Malik v. Kiran Pal [(2009) 14 SCC 1] also offers support for the dictum in Muneer (supra) though detailed discussions are not there. In paragraph-14 the Hon'ble Supreme Court has proceeded to observe as follows: “Even when compensation is payable under Section 166 read with Section 168 of ## **M.A.C.A. No.1369 of 2005** -: 8 :- the Act, deviation from the structured formula as provided in the Second Schedule is not ordinarily permissible, except in exceptional cases.” 12. The learned counsel for the insurance company contends that in Deepal Girishbhai Soni v. United India Insurance Co. Ltd., [2004 (2) KLT 395 (SC)], the Hon'ble Supreme Court though it had adverted to the nature and the sweep of the claim under Sec.163A and Sec.166 of the M.V. Act has not held that the award under Sec.166 can in no case be below that which would be awardable under Sec.163A of the M.V. Act. But we are of the opinion that Deepal Girishbhai Soni (supra) cannot be reckoned as an authority on that aspect as the said question was not specifically and precisely raised or considered in that decision. 13. We now come to the next question as to what is the amount payable as compensation under Sec.163A of the M.V. Act. The 2[nd] Schedule under Sec.163A prescribes the amount payable as compensation under Sec.163A. Clause-1 of the 2[nd] Schedule gives a table/chart. The table/chart has horizontal and vertical columns. Each entry in the horizontal column refers to the age group of the victims. The Tribunal must first ascertain the ## **M.A.C.A. No.1369 of 2005** -: 9 :- relevant horizontal column applicable to the victim. In this case the victim can safely be included in the category of persons of age “upto 15 years”. He therefore falls under horizontal column No.1. 14. The next question to be ascertained is the relevant vertical entry. We have already taken the view in judgment dated 22/7/2011 in M.A.C.A. Nos.223 and 243 of 2007 (National Insurance Company Limited v. P.C. Chacko and others) that the vertical columns must be held to be refer to the income groups to which the victims belong. We have in that decision adverted to this aspect in detail. There are 13 vertical columns dealing with annual income of victims. Vertical column No.1 must be held to refer to persons whose annual income is upto `3,000/-. The second column must be held to refer to persons whose income is above `3,000/- upto `4,200/-. Each column has to be so reckoned and the last column must be held to refer to persons whose income is above `36,000/- upto `40,000/-. Those whose income is above `40,000/-, no claim can be staked under Sec.163A of the M.V. Act as held in Deepal Girishbhai Soni (supra). 15. This would mean that the relevant vertical entry applicable to the deceased is vertical column No.10 which deals ## **M.A.C.A. No.1369 of 2005** -: 10 :- with victims whose annual income is upto `18,000/- i.e., above `12,000/- upto `18,000/-. The relevant 'X' axis (horizontal column) and 'Y' axis (vertical column) meet and the relevant entry reveals “rupees in thousands” payable in the case of death of the victim. `3,60,000/- is the gross amount so payable in the case of deceased/claimant. As per the note to the table/chart, 1/3[rd] has to be reduced and the balance payable is hence `2,40,000/-. 16. To this has to be added the amount payable under Clause-3 of the 2[nd] Schedule. An amount of `2,000/- as funeral expenses under Clause 3(i) and an amount of `2,500/- as loss of estate under Clause 3(iii) will have to be paid in addition to the amount of `2,40,000/- shown above. 17. Therefore under the 2[nd] Schedule in respect of the death of a person like the deceased child in this case the total compensation payable would be `2,44,500/-. We are of the opinion that even in a claim under Sec.166 of the M.V. Act following the dictum in Muneer and Malik (supra) the said amount must inevitably be paid to the claimants. 18. No other contentions are raised. We are satisfied that this appeal can, in these circumstances, be allowed to the above ## **M.A.C.A. No.1369 of 2005** -: 11 :- extent. 19. In the result: - (a) This appeal is allowed in part. - (b) The appellants are found entitled, in supersession of the - directions in the impugned award, to a total amount of `2,44,500/- (Rupees Two lakhs forty four thousand and five hundred only) as shown above. (c) The said amount of compensation shall carry interest on the entire amount at the rate of 9% per annum as directed by the Tribunal. - (d) All other directions of the Tribunal are upheld. Sd/- **R. BASANT** **(Judge)** **Sd/-** **N.K. BALAKRISHNAN** **(Judge)** **Nan/** **//true copy// P.S. to Judge**