Sherafudeen & Sajeela Beevi v. Divisional Manager, Oriental Insurance Company Ltd., Kollam-1

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 MACA.No. 1225 of 2011() ----------------------OPMV.1030/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANTS/PETITIONERS ------------------------- 1. SHERAFUDEEN, DARUL NOOR, WARD NO.8, MYANAGAPPALLY, KOLLAM. 2. SAJEELA BEEVI, W/O.SHERAFUDEEN, DARL NOOR, WARD NO.8, MYANAGAPPALLY, KOLLAM. BY ADV. SRI.PRATHEESH.P RESPONDENT/RESPONDENT ------------------------- THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LTD., KOLLAM-1. ADV. SRI.A.R.GEORGE/SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.1225 of 2011 ---------------------------------------Dated this the 13[th] day of October 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimants are the appellants. They are the father and mother of a child aged 8 years who suffered injuries in a motor accident which took place on 13/01/2007 and succumbed to those injuries. The tribunal awarded a total amount of Rs.1,90,000/- as compensation as per the details given in paragraph 8 of the impugned award which we extract below: ||**_Part-I_**|| |---|---|---| |(a)|Loss of earning|Nil| |(b)|Partial loss of earning|Nil| |(c)|Transport to the hospital and funeral expenses|Rs.5,000/-| |(d)|Extra nourishment|Nil| |(e)|Damage to clothing and articles|Nil| |(f)|Others|Nil| |(g)|Medical Expenses|Nil| ||**_Part-II_**|| |(h)|Compensation for pain and suffering|Rs.5,000/-| |(i)|Compensation for continuing for permanent<br>disability|Rs.1,70,000/-| |(j)|Compensation for the loss of consortium|Nil| |(k)|Compensation for loss of love and affection|Rs.10,000/-| ||Total|**Rs.1,90,000/- (Rupees One**<br>**lakh ninety thousand only)**| 2 M.A.C.A.No.1225 of 2011 2. The appellants are aggrieved by the impugned award. Challenge is raised only against the quantum of compensation awarded. The learned counsel for the appellants submits that the amount of Rs.1,90,000/- is not adequate compensation for the loss suffered. Just compensation having not been paid, the compensation amount deserves enhancement, contends counsel. 3. The learned counsel for the appellants places reliance on the decisions in **National Insurance Co.Ltd. v. Muneer [2003(1)KLT 137]** and **United India Insurance Co.Ltd. v. Madhavan [2011(3)KLT 452]** and contends that at any rate compensation for death could not have been below the amount fixed under Section 163A of the Motor Vehicles Act. 4. We are in ready agreement with the learned counsel for the appellants. It has repeatedly been held that in respect of death of a minor child compensation awarded cannot fall below the compensation that is assured under Section 163A of the M.V.Act. The mere fact that the claimants, in their ignorance or because they are not properly advised, have chosen to stake a claim under Section 166 and not under Section 163A of the M.V.Act, will not and cannot persuade a court, committed to the primary mandate of law to ensure that just compensation is paid 3 M.A.C.A.No.1225 of 2011 to the victims, to award any amount less than the amount that would be payable under Section 163A of the M.V.Act in a claim under Section 166 of the M.V.Act. 5. When it comes to ascertainment of compensation payable in the case of a non-earning minor child, the Court is to face a lot of challenges. We have little evidence available about the possible position of life which the child may have attained in future. The child being only 8 years old, we are unable to engage ourselves in reasonable speculations of the possible future attainments in life of the child. But notwithstanding this the courts cannot shirk their responsibility to award compensation which is fair, just and reasonable. It is in this context courts have adopted the principle that the minimum amount that is assured under the structured formula under Section 163A can safely be awarded even in a case under Section 166 of the M.V.Act. Prior to the introduction of Section 163 A and subsequently in some decisions without reference to Section 163A of the M.V.Act, courts have attempted to ascertain the quantum of compensation payable. A specific yardstick, it is very relevant, is not devised in any such decisions to ascertain the quantum of compensation payable in respect of all non- 4 M.A.C.A.No.1225 of 2011 earning minor children. It is, in these circumstances, that this Court has taken the view that the assured amount under the structured formula can certainly be awarded to the claimants/legal heirs of a deceased child under Section 163A of the M.V.Act. 6. We feel the said approach to be absolutely fair, just and reasonable. We find no reason to deviate from the dictum in **National Insurance Co.Ltd. v. Muneer [2003(1)KLT 137]** and **Sreedevi v. K.S.R.T.C [2011(3) KLT 716].** **7.** Sri.A.R.George, the learned counsel for the insurance company relies on the decision in **Oriental Insurance Co.Ltd.** **v. Syed Ibrahim [2007(4)KLT 319(SC)]** and submits that the principle in that decision deserves to be followed. Under Section 141 of the Constitution, law declared by the Supreme Court is binding on this Court. We have gone through the decision in **Syed Ibrahim** (Supra). There is absolutely no specific principle enunciated in the said decision as to how compensation payable in respect of claims regarding death of non-earning minor children is to be ascertained. Facts of the said case reveal that the tribunal had initially awarded Rs.51,500/- as compensation. The High Court had enhanced the same to Rs.1,52,000/-. The 5 M.A.C.A.No.1225 of 2011 reported judgment of the Supreme Court does not reveal the basis on which the tribunal had calculated the amount or the High Court had calculated the amount. Between the two, the Supreme Court appears to have chosen the amount fixed by the tribunal. In fact, in paragraph 10 of the judgment, it is observed that the quantum as awarded by the tribunal and deposited pursuant to the order of this Court dated 29/4/2005 is maintained. We are unable to cull out any principle from the decision in **Syed Ibrahim** (Supra) as to how compensation is to be calculated and computed in the instant case. We do also note that there is no reference in **Syed Ibrahim** (Supra) of the quantum payable under Section 163A of the MV.Act. The course followed by the Supreme Court in the facts of a given case (sometimes evidently invoking the jurisdiction of the Supreme Court under Article 142 of the Constitution of India) cannot certainly be misconstrued as law declared unless we are able to spell out an intention of the Supreme Court to lay down any principle, though impliedly. The decision in **Syed Ibrahim** (Supra) cannot certainly persuade us not to recognise and follow the decisions in **National Insurance Co.Ltd. v. Muneer [2003(1)KLT 137]** and **Sreedevi v. K.S.R.T.C [2011(3) KLT** 6 M.A.C.A.No.1225 of 2011 ## **716] .** **8.** The deceased child had not started earning. He had no income prior to the accident and therefore under clause 6 of the second schedule Rs.1,250/- per mensum can safely be assumed to be the income of the deceased child. The child, therefore, falls in the first age group - victims aged upto 15 years. The child also falls under the income group of persons earning above Rs.12,000/- upto Rs.18,000/- coming under vertical column No.10. The amount of compensation prescribed in Rupees in thousand is 360. 9. In addition to the amount prescribed under clause 1 of the second schedule, amount payable under clause 3(i) (funeral expenses) clause 3(iii) (loss of estate) shall also be payable under Section 163A of the M.V.Act. We thus find that the claimants can be held to be entitled to an amount of Rs.2,44,500/- if the claim were reckoned under Section 163A of the M.V.Act as shown below. Compensation for death Rs.2,40,000/(Rs.3,60,000/- x 2/3) Funeral expenses Rs.2,000/under clause 3(i) 7 M.A.C.A.No.1225 of 2011 Loss of estate under clause 3(iii) Rs.2,500/- ---------------------- Total **Rs.2,44,500/-** ========= 10. We are not satisfied that any further amount is payable as compensation to the claimants. Proportionate costs as held in J **eena v. Satheesh Babu.K [2011(3) KLT 943]** is also liable to be paid. 11. In the result, a) This appeal is allowed in part. b) Appellants are found entitled to a further amount of Rs.54,500/- (Rs.2,44,500/- minus Rs.1,90,000/-) (Rupees fifty four thousand and five hundred only) in addition to the amount already awarded by the Tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as specified by the tribunal in the impugned award. It is directed that as held in the order condoning the delay in filing this appeal that interest shall not be payable for the period of 635 days; that is the period of delay. d) Proportionate cost before the tribunal shall be paid as per the decision in **Jeena** (Supra). 8 M.A.C.A.No.1225 of 2011 e) 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.1225 of 2011 9 10 M.A.C.A.No.1225 of 2011 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010