Vinod s/o Thankappan Achary & Others v. Suresh Kumar & Ors.

``` CR ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, ``` ## **`1944`** ``` MACA NO. 90 OF 2018 ``` ``` AGAINST THE JUDGMENT IN OP(MV)614/2013 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, PATHANAMTHITTA / II ADDL.M.A.C.T. ``` ## **`APPELLANTS/APPELLANTS:`** - `1 VINOD S/O. THANKAPPAN ACHARY, MALAYIL HOUSE, VALLAMKULAM P.O., THIRUVALLA.` - `2 RAJI VINOD W/O. VINOD, MALAYIL HOUSE, VALLAMKULAM P.O., THIRUVALLA.` - `3 VIJAY VINOD S/O. VINOD, MALAYIL HOUSE, VALLAMKULAM P.O., THIRUVALLA, MINOR, REPRESENTED BY HIS MOTHER, THE 2ND APPELLANT HEREIN (DOB-22.10.2003).` - `BY ADVS.` - `SUSANTH SHAJI V.V.SHAJI` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SURESH KUMAR S/O. GOPALAKRISHNAN, THEKKEPPURATHU HOUSE, NEAR MARTHOMA COLLEGE, KUTTAPPUZHA P.O., THIRUVALLA.` - `2 GOPAN K. UNNITHAN S/O. A. P. KUTTAN UNNITHAN, VADAKKEDATHU GOKULAM, PANDANADU WEST P.O., CHENGANNUR.` - `3 UNITED INDIA INSURANCE CO. LTD. BRANCH PATHANAMTHITTA.` - `BY ADV SMT.DEEPA GEORGE` ## **MACA.No.90/2018** **==> picture [20 x 8] intentionally omitted <==** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA.No.90/2018** ..3.. ## JUDGMENT The quantum and the manner of award of compensation in the unfortunate cases of death of children, consequent to accidents, has long gripped the attention of the Hon’ble Supreme Court and that of this Court. 2. In _**Puttamma & Ors. v. K.L.Narayana Reddy & another**_ [(2013) 15 SCC 45], surveying the various precedents that held the field until then, as also to certain amendments to Schedule II of the Motor Vehicles Act, 1988 (‘the Motor Vehicles Act’ for short) - which were proposed at that time - the Hon’ble Supreme Court rued that the Central Government had failed in its imperative duty to amend the afore Schedule, adverting to Section 163A(3) of the MV Act; and thus issued directions to the said Government to cause appropriate amendments, keeping in mind the present cost of living. It then declared that, until such time as necessary amendments are made, the compensation in the case of death of a child below the age of five years be taken to be a consolidated sum of Rs.1,00,000/-; while in the case of a child of more than five years, as Rs.1,50,000/-. **MACA.No.90/2018** ..4.. 3. Prior to the afore judgment, in _**R.K.Malik & another v. Kiran Pal & Ors**_ [(2009) 14 SCC 1], the Hon’ble Supreme Court had recommended that the notional income fixed under Section 163A of the MV Act, which was Rs.15,000/per annum, be enhanced and increased, since it continued to exist without any amendments since 14.11.1994. 4. Imbibing the spirit of **R.K.Malik** ( _supra_ ), in _**Kishan Gopal & another v. Lala & Ors.**_ [(2014) 1 SCC 244], in the case of a 10 year old child killed in an accident, the Hon’ble Supreme Court fixed the notional income at Rs.30,000/- per annum. 5. Unfortunately, the amendments as ordered by the Hon’ble Supreme Court in **Puttamma** ( _supra_ ) never came through because, even though the second schedule to the “MV Act” was subsequently amended, same was later withdrawn. Hence, when the Hon’ble Supreme Court, in _**Kurvan Ansari v. Shyam Kishore Murmu**_ [2021 (6) KLT OnLine 1005], dealt with the case of death of a seven year old child in an accident, which happened in the year 2004, declared that fixing of notional income at Rs.1,50,000/- per annum for non earning members is not just and reasonable; and therefore, that, it should be enhanced prudently, adverting **MACA.No.90/2018** ..5.. to the inflation, devaluation of the Rupee and cost of living. Pertinently, the Hon’ble Court, in the said case, fixed the notional income of the deceased at Rs.25,000/- per annum, and granted a total compensation of Rs.4,70,000/-, as recorded therein. 6. In the meanwhile, a learned Judge of this Court, in _**National Insurance Company Ltd. and other v. Assainar**_ [2019 (4) KLT 39], took note of the afore judgments, along with others, and considering the fact that Section 163A of the “MV Act” was introduced with effect from 14.11.1994, entered the opinion that Rs.24,000/- per annum should be adopted as the notional income even in the case of death of children, till the end of the financial year 1995-96. 7. Pertinently, however, Smt.Deepa George – learned Standing Counsel for the respondent Insurance Company, submitted that if this Court is to follow **Assainar** (supra) in the case of the claimants in this case, the compensation eligible to the claimants would only be Rs.4,56,000/-; while if the ratio in **Kurvan Ansari** (supra) is adopted, it would rise marginally higher. She explained that this is because, in **Assainar** (supra), this Court has declared that the compensation eligible in the case of a child below the age of five years should be **MACA.No.90/2018** ..6.. reckoned to be a minimum of Rs.2,40,000/- per annum till 1994-1995, to be incrementally increased by Rs.12,000/- every year. She thus argued that a safer standard would be to follow **Kurvan Ansari** (supra), which the Hon’ble Supreme Court delivered recently as in the year 2021. 8. The afore rival and dialectical positions being so recorded, this Court is now called upon to consider what should be the notional income of a nine month old child, who was unfortunately lost to his parents in the accident involved in this case. 9. As seen above, an unyielding standard has not been fixed in any of the cases, but in **Kurvan Ansari** (supra) - delivered in the year 2021 - the Hon’ble Supreme Court has adopted the notional income of a seven year old child, who died in the year 2004, to be Rs.25,000/- per annum. However, in **Kishan Gopal** (supra), the notional income of a ten year old child, who died in an accident in the year 1992, was fixed as Rs.30,000/- per annum; but in _**Meena Devi v. Nunu Chand @ Nemchand Mahto & Ors**_ [(2023) 1 SCC 204] which was delivered by the Hon’ble Supreme Court in the year 2022, with regard to the death of a twelve year old child, in the year **MACA.No.90/2018** ..7.. 2003, the annual income was again taken to be Rs.30,000/- per annum. 10. Therefore, as matters now stand, in **Meena Devi** (supra) the Hon’ble Supreme Court has reckoned Rs.30,000/per annum as the notional income in the case of a twelve and half year old child, in the accident which occurred in the year 2003 and I am certain this has been done taking note of all the afore aspects. 11. In the case at hand, the deceased child was nine months old at the time of the unfortunate accident, which happened in the year 2013; and, guided by the afore precedents, surely, the notional income requires to be reckoned, taking note of inflation, devaluation of rupee and cost of living. This is more so because, in _**Rajendra Singh & Ors. v. National Insurance Company Ltd. & Ors.**_ [(2020) 7 SCC 256], the Hon’ble Supreme Court fixed Rs.36,000/- per annum as the notional income of a child aged twelve and a half years, who died in an accident in the year 2012, which is the most proximate year to the facts involved in this case. 12. In this regard, I am of the firm view that this Court will be justified in following the ratio in **Kurvan Ansari** (supra) and **Meena Devi** (supra) and in being led by its declarations. **MACA.No.90/2018** ..8.. Since the said judgments adopted Rs.25,000/- and Rs.30000/respectively as the notional income for child over five years, who met with untimely death in the year 2004, and 2003 respectively, the addition of Rs.5,000/- as income per annum for the deceased in this case, would not merely be reasonable, but inevitable and justifiable. Of course, Sri.Susanth Shaji asked for a much higher figure, requesting that this Court adopt the standards reflected in **Ramachandrappa** (supra); but I am afraid that I cannot accede to this when **Meena Devi** (supra), in the year 2022, adopted only Rs.30,000/- as the notional income and that too, for a child of twelve and a half years, though involved in an accident of the year 2003. 13. Since the child involved in this case is much younger and the accident occurred nearly 10 years after the one noticed in **Meena Devi** (supra) and **Kurvan Ansari** (supra), I am certain that adoption of Rs.30,000/- per annum as the notional income, would be the most apposite in the given circumstances. Resultantly, this Appeal is allowed in part, taking the notional income of the deceased child as being Rs.30,000/- per annum and applying the applicable multiplier ‘15’, as stipulated in Schedule II for all claims under Section 163A of **MACA.No.90/2018** ..9.. the MV Act, the amount under the head ‘Loss of Dependency’ would stand revised to Rs.4,50,000/-. Added to this, the claimants/parents would be entitled to compensation towards ‘Filial Consortium’ of Rs.40,000/- each; along with ‘Funeral Expenses’ of Rs.15,000/-, as per **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)]. The appellants are thus entitled to a total additional sum of Rs.5,45,000/-, along with 7% interest from the date of claim till the date of realization, from the respondent – Insurance Company. In furtherance, the respondent – Insurance Company will deposit the afore amount before the Tribunal within a period of two months from the date of receipt of a copy of this judgment, as agreed by them; in which event, the appellants will be at liberty to receive it as per law and to apportion it between themselves in the manner as ordered by the Tribunal. Sd/- ## DEVAN RAMACHANDRAN, JUDGE ``` ACR ```