Suseela and Vijayann v. Jayachandran, K.R. Gireesh, National Insurance Co. Ltd. and Vimal Kumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937 MACA.No. 2579 of 2012 () ------------------------AGAINST THE AWARD IN O.P(M.V)No.322/2004 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA DATED 5.7.2012 APPELLANTS/PETITIONERS 1 & 2: ------------------------------------- 1. SUSEELA, SUVI BHAVANAM, KARUVATTA VADAKKUM MURI, THOTTAPPALLY. 2. VIJAYAN, SUVI BHAVANAM, KARUVATTA VADAKKUM MURI, THOTTAPPALLY. BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN RESPONDENTS & RESPONDENTS & 3RD PETITIONER: ---------------------------------------------------------- 1. JAYACHANDRAN, OOMMINIKOTTU VEEDU, AMSOM DESOM PANNYAKARA, KOZHIKKODE CORPORATION, WARD NO.25, KOZHIKKODE-673001. 2. K.R.GIREESH, CHANDRA VILLA, THIRUVANNUR P.O., KOZHIKKODE-673001. 3. NATIONAL INSURANCE CO.LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KAYAMKULAM-690502. 4. VIMAL KUMAR, SUVI BHAVANAM, KARUVATTA VADAKKUM MURI, THOTTAPPALLY. R3 BY ADV. SRI.P.G.GANAPPAN BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- M.A.C.A.No.2579 of 2012 -------------------------------Dated 26[th] February, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The appellants/claimants who are the parents and the sibling of a minor child who lost his life in a motor vehicle accident filed O.P.(M.V)No.322 of 2004 claiming compensation for his death. The deceased Sanal Kumar was aged 14 years and he was studying in the IX[th] Standard. The accident in which he lost his life occurred on 3.3.2004 at about 7 a.m. When Sanal Kumar was pedalling a bicycle from east to west through the northern side of the road near Karuvatta Kannukali Palam, a Mini Lorry bearing Reg.No.KL-11R/8197 driven by the first respondent came from the opposite direction and hit against the bicycle. Sanal Kumar succumbed to the injuries sustained in the said accident on the same day itself. It was in the said circumstances that the claimants filed the aforementioned claim petition alleging rashness and negligence against the first respondent, the driver of the offending vehicle and making necessary averments to make the 2[nd] respondent vicariously liable and the 3[rd] respondent, the insurer to indemnify the insured, the 2[nd] respondent. The father of the deceased MACA.No.2579/2012 2 child viz., the second appellant was examined as PW1 and Exts.A1 to A10 were marked on the side of the claimants. On the side of the respondents there was no oral or documentary evidence. The Tribunal based on the evidence on record assessed compensation under different heads and passed an award for 2,75,000/- with interest at the rate of₹ 7.5% per annum from the date of petition till its realisation and with a cost of ₹ 2,500/-. It is feeling aggrieved by the inadequate compensation that this appeal has been preferred for enhancement in compensation. 2. We have heard Adv.Sri.George Varghese Perumpallikuttiyil, the learned counsel for the appellants and Adv.Sri.Mathews Jacob, the learned counsel appearing for the 3[rd] respondent. 3. There is absolutely no dispute with respect to the accident as also the insurance coverage. The Tribunal found that the accident occurred due to the negligence on the part of the first respondent, the driver of the offending vehicle. Obviously, no appeal has been preferred by the respondents. In such circumstances, we ween that there is absolutely no necessity to deal with the questions MACA.No.2579/2012 3 regarding the accident, negligence and also the liability of the 3[rd] respondent, the insurer to indemnify the 2[nd] respondent. In short, the only question to be decided is whether there is any substance in the contention of the appellants that the Tribunal erroneously estimated the compensation payable under different heads and therefore, they are entitled to get enhanced compensation. 4. The learned counsel appearing for the appellants contended that the Tribunal went wrong in fixing the notional monthly income of the deceased as 2,000/- and then deducting 1/3₹ rd towards his personal expenses. Relying on the decision of the Hon'ble Apex Court in **R.K.Malik and Another** v. **Kiran Pal and Others ((2009) 14 SCC 1)** the learned counsel for the appellants contended that the annual income of the deceased viz., multiplicand ought to have been taken as 30,000/-. The learned counsel further submitted that in the₹ decision in **Kishan Gopal and Another** v. **Lala and Others ((2014)** **1 SCC 244)** the Hon'ble Apex Court fixed the multiplicand in respect of a minor who lost his life at the age of 10 years as 30,000/-. It is₹ common case that the Tribunal has correctly identified the multiplier to be applied in this case. The learned counsel further contended that though in the light of the decision of the Apex Court in **Rajesh** v. MACA.No.2579/2012 4 **Rajbir Singh (2013(3) KLT 89(SC))** in the absence of any evidence of higher expenses a minimum of 25,000/- shall be granted towards₹ funeral expenses. However, the Tribunal granted only 5,000/- as₹ against a claim of 10,000/-. The further contention is that the₹ Tribunal has erred in fixing the compensation payable under the head `loss of love and affection'. As against a claim of 50,000/- only an₹ amount of 15,000/- has been granted. In short, it is the submission₹ of the learned counsel appearing for the appellants that enhanced compensation has to be given under the aforesaid heads. Per contra, the learned counsel appearing for the third respondent contended that the Tribunal has considered all the relevant aspects while deciding the compensation payable under different heads and what is awarded is nothing but a just compensation taking into account all relevant aspects. In short, it is contended that no appellate interference is called for. 5. It is to be noted that the question of assessing compensation in respect of the death of minors always has been a puzzling problem for Tribunals. It is because none can say with precision what the child would have become had he been alive. In short, a considerable amount of guess work has to be done while MACA.No.2579/2012 5 calculating the compensation payable in respect of the death of a minor child. In the case on hand, the deceased Sanal Kumar was aged 14 years and he was studying in the IX[th] Standard. As noticed hereinbefore, the learned counsel appearing for the appellants contended that while considering the compensation payable under the head `loss of dependency' an amount of at least 30,000/- shall be₹ taken as the annual income/the multiplicand. At the same time, the learned counsel contended that taking into account the fact that the Hon'ble Apex Court fixed the annual income as such in respect of accidents occurred in the year 1990 a higher amount has to be fixed as annual income/multiplicand taking into account all the relevant aspects. The learned counsel appearing for the respondents contended that the Tribunal has fixed the monthly income taking into account the fact that the deceased Sanal Kumar had not actually started earning at the time of his death. True that, in cases of death of minor children the Hon'ble Apex Court took annual income, virtually, reckoning the fact that, in the strict sense, they could not be treated as earning members, but such fixation has to be made for the purpose of assessing a compensation payable under the head `loss of dependency'. Evidently, the question of dependency was taken into consideration on the ground that had the child been alive at the fag end of life the parents definitely would have MACA.No.2579/2012 6 depended upon their son/daughter who lost his life at the tender age. True that, in such circumstances, a sibling cannot strictly seek for compensation under the head `loss of dependency'. But, the question to be considered in this case is whether the Tribunal was justified in taking the monthly income of the deceased as 2,000/- for the purpose₹ of calculating the compensation under the head `loss of dependency'. In the contextual situation, it is relevant to refer to a Division Bench decision of this Court in **New India Assurance Company Ltd.** v. **Vijayan and Others (2016(1) KHC 575 (DB))** . That was a case where compensation was claimed in respect of the death of a minor boy aged 13 years. In that case, the Tribunal took notional monthly income as 3,000/- and adopted a multiplier of 20 and thereafter deducted₹ 1/3[rd] towards personal expenses. The matter was taken up in appeal by the insurance company. A perusal of the said judgment would reveal that the Division Bench considered the question whether the multiplier taken by the Tribunal was on the higher side and whether the deduction towards probable expenses should have been 1/3[rd] or ½. Evidently, the question of fixation of the multiplicand was also considered and in that regard the decision in **Kishan Gopal's** case (supra) was also taken note of. Obviously, annual income was so fixed in that case by the Hon'ble Apex Court in respect of the accidents which occurred more MACA.No.2579/2012 7 than a decade prior to the accident in question in **Vijayan's** case (supra). After considering such aspects the Division Bench fixed the monthly income of the deceased child in that case notionally as ₹ 3,000/-. Virtually, the Division Bench was looking into the question whether the Tribunal was wrong in fixing the said amount as the notional monthly income. The Division Bench found that the fixation of the monthly income notionally as 3,000/- is correct. In the said₹ circumstances, we are of the view that for the purpose of calculating the compensation payable under the head `loss of dependency' the monthly income of the deceased Sanal Kumar could be taken notionally as 3,000/-. Then the question is whether any addition should be₹ made to the said amount reckoning the future prospects which he would have had but for his untimely death. The learned counsel for the appellants submitted that in the decision of the Hon'ble Apex Court in **R.K.Malik's** case (supra) it was held that future prospects has to be taken into account even in the case of children. In this context, it is to be noted that in **R.K.Malik's** case (supra) 50% of the income was added to the income fixed reckoning future prospects. In the light of the decision in **Vijayan's** case (supra) deduction has to be made towards the probable personal expenses. After considering the question whether it should be 1/3[rd] or ½ the Division Bench found that MACA.No.2579/2012 8 the guidelines available under second schedule to Motor Vehicles Act has to be taken into consideration for deciding the said issue and therefore, it was held that 1/3[rd] must be the deduction to be made towards the probable personal expenses. We do not find any reason to disagree with the said view taken by the Division Bench. In the said circumstances, the amount of compensation granted by the Tribunal under the head `loss of dependency' has to be re-assessed taking note of the modification made by us in respect of the aforementioned. We have taken 3,000/- as the monthly income and found that 50%₹ addition has to be made reckoning the future prospects, to the said income and then 1/3[rd] has to be deducted towards the probable personal expenses. Upon such addition and deduction the appellants would be entitled to get an amount of 5,40,000/- under the head₹ `loss of dependency'. The Tribunal granted an amount of 2,40,000/-₹ under the aforesaid head. In the said circumstances, we award an amount of 3,00,000/- additionally under the said head. Towards the₹ funeral expenses in the light of the dictum laid down by the Hon'ble Apex Court in **Rajesh's** case (supra), in the absence of any evidence of higher expenses a minimum of 25,000/- has to be granted towards₹ funeral expenses. The appellants did not bring out any circumstance warranting payment of an amount in excess of 25,000/-. In the said₹ MACA.No.2579/2012 9 circumstances, in the light of the dictum laid down in **Rajesh's** case (supra) we award an amount of 25,000/- towards funeral expenses.₹ An amount of 5,000/- was already granted under the said head. In₹ the said circumstances, the appellants would be entitled to get ₹ 20,000/- additionally under the said head. Towards `loss of love and affection' the appellants claimed an amount of 50000/- and the₹ Tribunal granted only an amount of 15,000/-. The claimants are₹ parents and elder brother of the deceased. Taking into account their relation with the deceased we are of the view that they are entitled to get enhancement of compensation under the said head. We are of the considered view that the appellants are entitled to get an amount of ₹ 15,000/- additionally under that head. In the light of the aforesaid discussion, the appellants are entitled to get an amount of 3,35,000/-₹ as additional compensation. It is granted. The said enhanced amount will carry interest at the rate of 8% from the date of petition till realisation. The 3[rd] respondent shall deposit the amount within three months from the date of receipt of copy of this judgment. In case of failure to deposit the amount within the above stipulated time the amount remaining to be paid will carry interest at the rate of 9% per annum. From the additional compensation the 3[rd] appellant will be entitled only to get only an amount of 25,000/- and the balance₹ MACA.No.2579/2012 10 amount shall also be apportioned between appellants 1 and 2 in the ratio 60 : 40. There will be no order as to costs. Sd/- **Judge** **C.T.RAVIKUMAR** Sd/- **MARY JOSEPH Judge** TKS