N. Chandran @ Chandraswami v. Mohammed Haneeha N.P. and others (MACA 1516 of 2005)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937** **MACA.No. 1516 of 2005 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 1909/1999 of ADDL.MACT,THALASSERY DATED 20-01-2005** **APPELLANTS/PETITIONERS::** **------------------------** **1. N. CHANDRAN @ CHANDRASWAMI, S/O. NARAYANAN, AGED 36 YEARS, RESIDING AT NEKKOTH HOUSE, KADOOR P.O., CHERUPAZHASSI KANNUR-670 001.** **2. P. VALSALA, W/O. N.CHANDRAN @ CHANDRASWAMI, AGED 31 YEARS RESIDING AT NEKKOTH HOUSE, KADOOR P.O., CHERUPAZHASSI KANNUR-670 601.** **3. SUNILA P., D/O. N.CHANDRAN @ CHANDRASWAMI, AGED 13 YEARS, (MINOR) REPRESENTED BY FATHER N.CHANDRAN @, CHANDRASWAMI RESIDING AT -DO-.** **BY ADV. SRI.V.RAMKUMAR NAMBIAR** **RESPONDENTS/RESPONDENTS::** **-----------------------** **1. MOHAMMED HANEEFA N.P., S/O.C.K.AHAMMED, AGED 26 YEARS, NALUPURAPPATTU, PLACHIKKARA P.O. KASARGODE (DRIVER OF THE BUS NO.KL-14/B-1440 D.L.NO.1510/92/KH-2856/96/M2/BKH).** **2. K. MOHAMMED KUNHI, S/O. YOUSUF HAJI, SAFURA MANZIL, BENGALAM P.O. NILESHWAR. (R.C.OWNER OF THE BUS NO.KL-14/B-1440).** **3. THE ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE, CITY POINT BUILDING PRESS CLUB JUNCTION, KASARGODE. (INSURER OF THE BUS NO.KL-14/B-1440 - POLICY NO.1902/2000).** ## **4. R. SASIKUMAR, SWATHI NEAR MUTHUKAD TEMPLE, MUPPATHADAM, ALUVA ERNAKULAM. (R.C.OWNER OF THE TEMPO, NO.KL-7/H-9244).** ## **5. UNITED INDIA INSURANCE COMPANY LTD.,** **CITY BRANCH OFFICE, KANNANKARI ESTATE, SHANMUGHAM ROAD ERNAKULAM, KOCHI-682 031. (POLICY NO.03874/98)(INSURER OF THE TEMPO NO.KL-7/H-9244).** **R3 BY ADV. SRI.VPK.PANICKER R5 BY ADV. SMT.R.REMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.1516 of 2005 ....................................................... Dated this the 1[st] day of March, 2016. ## **JUDGMENT** ## **K. RAMAKRISHNAN, J:** The claimants in O.P.(M.V)No.1909 of 1999 on the file of the Additional Motor Accidents Claims Tribunal, Thalassery are the appellants herein. The appellants are parents and elder sister of deceased Suchila.P, aged 7 years, filed the application for compensation for the death of their child and sister respectively in a motor vehicle accident involving a tempo van with registration No.KL.7/H-9244, owned by the 4[th] respondent and insured with the 5[th] respondent, which collided with a bus bearing registration No.KL.14/B-1440, driven by the first respondent, owned by the second respondent and insured with the third respondent. 2.According to them, the accident occurred due to the negligence of both the drivers. The deceased along with his family members were travelling in the tempo van. While they were on the way to Mookambika, it collied with the bus and the child sustained severe injuries and she died on account of the injuries sustained in the accident. They claimed a total compensation of Rs.2,50,000/- on various heads. 3. The third respondent entered appearance and filed a statement admitting the insurance of the bus bearing registration 2 M.A.C.A.No.1516 of 2005 No.KL-14/B-14040 but denied the allegation of negligence on the part of the driver of the bus. According to them, the accident occurred due to the negligence of the tempo van. They denied the quantum of compensation claimed and according to them, it is exorbitant. They prayed for dismissal of the application. 4. The fifth respondent filed a statement admitting the insurance of the tempo van bearing registration No.KL-7/H-9244 but they denied negligence on the part of the tempo van. According to them, they are not liable to pay any compensation. The compensation has to be paid by the third respondent. They prayed for dismissal of the application. Other respondents remained absent. 5. The first petitioner was examined as PW1 and Exts.A1 to A5 were marked on the side of the petitioners. After considering the evidence on record, the tribunal found that the accident occurred due to the negligence of the first respondent and directed respondents 1 to 3 to pay compensation jointly and severally and assessed a total compensation of Rs.90,300/-, which is rounded to 90,500/- on various heads as follows: Compensation for loss of dependency : Rs.64,800/Transportation charges : Rs.5,000/Pain and sufferings : Rs.5,000/Loss of love and affection : Rs.15,000/Compensation of injuries : Rs.500/------------------Total :Rs.90,300/- M.A.C.A.No.1516 of 2005 3 and directed the third respondent to pay the amount with 9% interest from the date of petition till payment with proportionate costs. Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellants/the claimants before the tribunal. 6. Heard Sri.V.Ramkumar Nambiar, learned counsel appearing for the appellants, Sri. V.P.K. Panicker, learned counsel appearing for the third respondent and Smt. R. Rema, learned counsel appearing for the fifth respondent. 7. Learned counsel for the appellants submitted that even if the child was aged only 7 years, as per the second schedule, a non earning member will be entitled to get Rs.15,000/- per annum as income and in _**Sarla Verma (Smt) and others v. Delhi Transport Corporation and another** (2009(6)SCC 121)_ which was approved in _**Reshma Kumari & others v. Madan Mohan & another (2009 (13) SCC**_ _**422)**_ and it has been held that where in the case of death of children up to 15 years, the multiplier of 15 will have to be taken for assessing compensation. Even as per _**Sarla Verma's case**_ (supra), 50% is deducted for personal expenses, the compensation awarded is very less. The amount awarded under the heads loss of love and affection, pain and sufferings and funeral expenses is on the lower 4 M.A.C.A.No.1516 of 2005 side. So, according to the learned counsel, the amount awarded is less and they are entitled to get enhancement. 8. On the other hand, learned counsel for the insurance company submitted that the amount awarded is just and proper considering the age of the deceased. 9. It is an admitted fact that the deceased was aged only 7 years at the time when she lost her breath. It is very difficult to assess compensation in the case of death of tender age children as they will be without any income and no yardstick can be fixed for loss of dependency. But, at the same time, the law does not say that parents who lost the child of tender age should not be adequately compensated as well. Now the second schedule to Motor Vehicles Act had fixed Rs.15,000/- as the annual income of a non earning member for assessing compensation under the head permanent disability or loss of dependency. Further, in _**Sarla Verma's case**_ (supra) it has been held that in the case of parents the dependency will have to be reduced by 50% for taking the multiplicand namely the monthly income of the deceased. But there was no guideline given as to what would be the multiplier will be taken in such circumstances. But that was explained in _**Reshma Kumari's case**_ (supra) _,_ where it has been held that up to the age of 15 years, multiplier will have to be taken M.A.C.A.No.1516 of 2005 5 as 15. If a calculation is made on that basis, the claimant will be entitled to get an amount of Rs.1,12,500/- =(15000x15x50%) under the head loss of dependency. But, in this case, it can be taken as loss of expectancy on account of the death of the young child to the parents. Deducting Rs.64,800/- awarded by the tribunal, they will be entitled to get an additional amount of Rs.47,700/- under that head. 10. In _**Amrit Bhanu Shali & Others v. National Insurance Company Ltd. & Others (2012 (11) SCC 738),**_ the Supreme Court has held that in the case where bachelor or youngster died in the accident, the parents must be adequately compensated for the loss of love and affection and awarded Rs.50,000/- each for each parents under the head loss of love and affection. In this case, the tribunal had awarded only Rs.15,000/- under that head, which appears to be on the lower side. So we award Rs.1,00,000/- under that head for both the parents together, thereby they will be entitled to get an additional amount of Rs.85,000/- under the head loss of love and affection due to the loss of their young child. The tribunal had awarded Rs.5,000/- under the head pain and sufferings, which appears to be on the lower side. We enhance the same to Rs.10,000/-, thereby they will be entitled to get an additional amount of Rs.5,000/- under the head pain and sufferings suffered by the M.A.C.A.No.1516 of 2005 6 deceased. The tribunal has awarded only Rs.5,000/- under the head transport to hospital and funeral expenses. Considering the tender age of the child, we think that, that amount can be enhanced to Rs.10,000/-, thereby the appellants will be entitled to another Rs.5,000/- under that head. On all other heads, the tribunal has awarded just and fair compensation. So the appellants will be entitled to an additional compensation of Rs.1,42,700/- over and above the compensation awarded by the tribunal, which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment. Three months time is granted to the insurance company to pay the amount. If amount is deposited, the parents are directed to share the amount equally and they were permitted to withdraw the amount as well. With the above modifications of the impugned award of the tribunal, the appeal is allowed in part and disposed of accordingly. ## **Sd/-** ## **P.N. RAVINDRAN, JUDGE.** Sd/- **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge M.A.C.A.No.1516 of 2005 7