Prakash s/o Raghavan & Rukmini w/o Prakash & Vishnu s/o Prakash v. Reliance General Insurance 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 TUESDAY, THE 23RD DAY OF MAY 2017/2ND JYAISHTA, 1939 MACA.No. 1408 of 2016 () ------------------------- AGAINST THE AWARD IN OPMV 610/2013 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 3.11.2015 APPELLANT/PETITIONER: ------------------------------------ 1. PRAKASH S/O. RAGHAVAN, AGED 50 YEARS, THOTTIYIL HOUSE AMANAKARA, RAMAPURAM, MUVATTUPUZHA TALUK. 2. RUKMINI W/O. PRAKASH, AGED 43 YEARS, THOTTIYIL HOUSE, AMANAKARA, RAMAPURAM, MUVATTUPUZHA TALUK. 3. VISHNU S/O. PRAKASH, AGED 20 YEARS, THOTTIYIL HOUSE, AMANAKARA, RAMAPURAM, MUVATTUPUZHA TALUK. BY ADVS.SRI.L.RAM MOHAN SRI.M.AUBREY ABRAHAM ISAAC RESPONDENT/RESPONDENT: ------------------------------------------ RELIANCE GENERAL INSURANCE CO. LTD 2ND FLOOR KABEER PLAZA, BOAT JETTY ROAD, ALAPPUZHA. ## BY ADV. SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------M.A.C.A.No.1408 of 2016** **-------------------------------------------------DATED THIS THE 23[rd] DAY OF MAY, 2017** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J.** The appellants are the claimants in O.P.(MV)No.610/2013 on the file of the Motor Accident Claims Tribunal, Muvattupuzha, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Kumari Namitha, aged 9 years, who met with a motor accident occurred on 11.5.2013, who succumbed to the injuries on that day itself. The appellants are respectively the parents and brother of the said Namitha. In the claim petition, it was alleged that on the date of accident, when the deceased Namitha was walking through the southern side of Kothamangalam-Neriyamangalam public road near Vayanasalapady, an Innova car bearing registration No.KL-35/A9999 owned and driven by the 1st and 2nd respondents respectively and insured with the 3rd respondent came in a rash and negligent manner and hit the deceased, who sustained serious injuries. Claiming a total compensation of 6,00,000/- under different heads,₹ the claim petition was filed before the Tribunal. M.A.C.A.No.1408 of 2016 -2- 2. Before the Tribunal, the 1st and 2nd respondents remained ex parte. The 3rd respondent insurer alone contested the matter. The fact that at the time of accident, the vehicle was covered by a valid insurance policy was not disputed. However, the 3rd respondent insurer contended that the compensation amount claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A11 were marked on the side of the claimants. The respondents have also not chosen to adduce any documentary evidence. Both sides have not adduced any oral evidence. 4. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the Innova car by the 2nd respondent driver. Since the vehicle was covered by a valid insurance policy, the 3rd respondent insurer was held liable to indemnify the 1st respondent owner. Under different heads, the Tribunal awarded a total compensation of 2,67,500/- together with interest at the₹ rate of 9% per annum from the date of petition, i.e., 31.8.2013 till realisation, with proportionate cost and the 3rd respondent insurer was directed to deposit the said amount before the M.A.C.A.No.1408 of 2016 -3- Tribunal. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellants/claimants are before this Court in this appeal. 6. We heard arguments of the learned counsel for the appellants/claimants and also the learned counsel for the 3[rd] respondent/insurer. 7. The sole issue that arises for consideration in this appeal is as to whether the appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal under different heads. 8. The accident is of the year 2013 and at the time of accident, the deceased was aged 9 years, who was a school going child. Before the Tribunal, the appellants/claimants contended that for the purpose of assessing compensation under the head loss of expectation/loss of dependency the monthly income of the deceased should be reckoned notionally as 5,000/-. ₹ 9. The Tribunal, taking note of the judgment of the Apex Court in **Kishan Gopal and another v. Lala and others [(2014) 1 SCC 244]** notionally fixed the annual income of the M.A.C.A.No.1408 of 2016 -4- deceased at 30,000/-. However, the Tribunal deducted 50% of₹ the said amount towards the personal needs of the deceased and the multiplicand was taken as 15,000/-. Adopting the multiplier₹ of 15, the Tribunal awarded a sum of ₹2,25,000/as compensation under the head loss of expectation/dependency. 10. The fixation of notional annual income of the deceased, who was a non-earning person, at 30,000/- by the₹ Tribunal warrants no interference in this appeal since the accident is of the year 2013. However, we are unable to sustain 50% deduction made by the Tribunal towards personal needs of the deceased. 11. In **New India Assurance Company Limited v. Vijayan (2016 (1) KLT 704)** a Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a member, held that deduction in the case of children upto the age of 15 years can only be 1/3[rd] towards personal expenses, treating the balance 2/3[rd] as the probable contribution. Para.15 of the said judgment reads thus; “15. Next question to be considered is whether the deduction towards the probable personal expenses should M.A.C.A.No.1408 of 2016 -5- have been 1/3[rd] or 50% as contended by the appellant/ insurance company. As mentioned already, after filling up the lacuna in Sarla Verma’s case with regard to the multiplier for children upto 15 years, the three member Bench of the Apex Court held in Reshma Kumari’s case that the multiplier shall be '15' in such cases and then the compensation should be worked out as given in the 2[nd] schedule. Coming to the 2[nd] schedule, only 1/3[rd] can be deducted in such cases and as such we approve the course pursued by the Tribunal in deducting only 1/3[rd] towards the personal expenses and treating the balance 2/3[rd] as the probable contribution. On re-working the compensation for the loss of death, it comes to 3000x12x15x2/3[rd] =3.6 lakhs; whereas the Tribunal has awarded a sum of ₹4.8 lakhs.” 12. In Vijayan's case (supra) this Court relied on the judgment of the Apex Court in **Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65]** wherein it was held that, in cases where the age of the victim happens to be upto 15 years, irrespective of Section 163A or Section 166 of the Motor Vehicle Act under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma' case [(2009) 6 SCC 121] should be M.A.C.A.No.1408 of 2016 -6- followed. This is to ensure that claimants in such cases are not awarded lesser amount when the application is made under Section 166 of the said Act. 13. In the instant case, adopting the above method, the compensation payable under the head loss of expectation/ dependency has to to reworked taking 30,000/- as the annual₹ income, deducting 1/3[rd] towards personal expenses and applying the multiplier of 15. Based on such assessment, the compensation payable under the head loss of expectation/ dependency is reworked as 3,00,000/- (30000x15x2/3). After₹ deducting 2,25,000/- already awarded by the Tribunal, the₹ appellants/claimants will be entitled for an additional compensation of **₹75,000/-** under this head. 14. Towards pain and suffering and funeral expenses, the Tribunal awarded 10,000/- and 25,000/- respectively. The₹ ₹ compensation awarded by the Tribunal under the above heads represents just and reasonable compensation, which requires no enhancement in this appeal. 15. Towards loss of estate and transportation expenses, the Tribunal awarded 5,000/- and 2,500/- respectively. The₹ ₹ M.A.C.A.No.1408 of 2016 -7- compensation awarded by the Tribunal under the above heads represents just and reasonable compensation, which also requires no enhancement in this appeal. 16. However, we find that towards loss of love and affection no amount has been awarded by the Tribunal. In **Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]** , a ThreeJudge Bench of the Apex Court held that the reasonable compensation that could be paid under the head love and affection should be 1,00,000/-. That was a case in which the₹ accident was of the year 2007. In the instant case the accident is of the year 2013 and the deceased is survived by her parents and a minor sibling aged 17 years. In such circumstances the appellants/claimants are awards a sum of **1,00,000/-₹** towards compensation for loss of love and affection. 17. In the result, the appellants/claimants are entitled for an additional compensation of **₹1,75,000/-** in this appeal, which will carry interest at the rate of 8% per annum from the date of petition, till realisation. Since the insurance coverage of the vehicle in not in dispute, the 3rd respondent insurer shall deposit the said amount before the Tribunal, within one month from the M.A.C.A.No.1408 of 2016 -8- date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn True copy P.S. to Judge