IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 MFA.No. 812 of 2002(B) ---------------------- OPMV.466/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT (PETITIONER): ----------- 1. OUSEPH AGED 36 YEARS S/O. VARKEY, THURAVELIKUNNEL HOUSE, P.O.KAVUMANNAM, VYTHIRI TALUK, WAYANAD DISTRICT. 2. LEELAMMA AGED 31 YEARS W/O. OUSEPH, THURAVELIKUNNEL HOUSE, P.O.KAVUMANNAM, VYTHIRI TALUK, WAYANAD DISTRICT. 3. SANISH, MINOR AGED 6 YEARS S/O. OUSEPH, THURAVELIKUNNEL HOUSE, P.O.KAVUMANNAM VYTHIRI TALUK, WAYANAD DISTRICT. 4. SHINCY, MINOR AGED 2 1/2 YEARS D/O. OUSEPH, THURAVELIKUNNEL HOUSE, P.O.KAVUMANNAM, VYTHIRI TALUK, WAYANAD DISTRICT. (MINOR APPELLANTS 3 AND 4 REPRESENTED BY FATHER AND NATURAL GUARDIAN 1ST APPELLANT) BY ADV. SRI.N.J.ANTONY RESPONDENTS (RESPONDENTS): ------------------------ 1. MAJEED AGED 23 YEARS S/O.ABDURAHIMAN, PANALI HOUSE, KAMBLAKKADU, MANANTHAVADY TALUK, WAYANAD DISTRICT. (DRIVER OF JEEP KL-10/A 4947 - D.L.NO NOT KNOWN) 2. BABY SEBASTIAN AGE NOT KNOWN S/O. SEBASTIAN VALAYIL HOUSE, VENNIYODE, KOTTATHARA AMSOM, MANANTHAVADY TALUK, WAYANAD DISTRICT. (OWNER OF JEEP KL-10/A 4947) MFA.812/2002 3. NATIONAL INDIA INSURANCE CO.LTD. KALPETTA (POLICY NO.570309/71/94/6300313, REPRESENTED BY ITS MANAGER. 4. U.SANKAR AGE NOT KNOWN, ULLATTIL HOUSE, ECHOME P.O., VYTHIRI TALUK, WAYANAD DISTRICT. (OWNER OF JEEP NO.KRM 3107) 5. UNITED INDIA INSURANCE CO.LTD., KALPETTA, REPRESENTED BY ITS MANAGER. (INSURER OF JEEP NO.KRM.3107-POLICY NO.100306/31/50/3761/94) BY ADV. SRI.LAL GEORGE FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.812 OF 2002 (B) ----------------------------------- Dated this the 12th day of March, 2008 J U D G M E N T KOSHY,J. A 12 year old boy sustained fatal injuries in an accident on 14.5.1995. Total compensation claimed by the parents, younger sister and younger brother was Rs.2,00,000/-. Tribunal awarded only Rs.58,100/- with interest. Only question of compensation is disputed in this appeal. 2. Accident occurred in 1995. When 2nd Schedule was framed, tribunal fixed the notional monthly income of a non earning person including minor as Rs.1,250/- (Rs.15,000/- per annum). It has been repeatedly held by the Supreme Court that while calculating compensation, 2nd Schedule can be taken as the guideline. It is true that loss of a child is unbearable to the parents. But some standard should be fixed for calculating compensation even though loss for the parents cannot be MFA.812/02 2 estimated in terms of money. Therefore, compensation can be fixed taking 2nd Schedule as the guideline. It is argued by the counsel for the claimants that 2nd Schedule is taken for calculating compensation for claims under 163 A where negligence of the driver of the offending vehicle need not be proved. Since the claim is under 166, claimants need prove negligence of the driver of the offending vehicle and necessarily in claims under 166, higher amount should be awarded than that is mentioned in the 2nd Schedule. But we are not taking 2nd Schedule as statutory guideline. Then the question is what is the multiplier to be adopted. If the age of the victim is taken into account, as per the 2nd Schedule, 15 is the apt multiplier. Here father was 36 years old and mother was 31. If mother's age alone is taken, 17 is the multiplier and if father's age is taken, 16 is the multiplier. But we take the least of the multipliers. So, 15 is taken as the multiplier. We have fixed Rs.15,000/- as the yearly income and after deducting 1/3 rd, compensation payable will be Rs.15,000 x 2/3 x 15 = Rs.1,50,000/-. Tribunal has granted only Rs.50,000/- under this head. Thus, the additional compensation payable will be Rs.1,00,000/-. Even though it is submitted that the MFA.812/02 3 amount granted under other heads are inadequate, considering the total amount awarded, we are not enhancing the same. The above amount of Rs.1,00,000/- should be deposited by the 3rd respondent, Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the tribunal. On deposit of the above amount, appellants 1 and 2 are allowed to withdraw the same in equal proportion. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.812 OF 2002 (B) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 12th March, 2008