IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 MFA.No. 666 of 2001(B) -------------------------------- OP(MV).662/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANTS/ PETITIONERS -------------------- 1. MOIDEEN , S/O. VEERANKUTTY, AGED 35 YEARS, NAMBEETIKULAM HOUSE, KUTTIKODE, TRIKKADEERI POST, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. KADEEJA, W/O. MOIDEEN, AGED 29 YEARS, AMBEETIKULAM HOUSE, KUTTIKODE, TRIKKADEERI POST, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.O.P.NANDAKUMAR SRI.V.A.AJAI KUMAR RESPONDENTS/ RESPONDENTS ----------------------- 1. P.V.PREMKUMAR, S/O. VELAPPAN, AGE NOT KNOWN, THANDASSERY VEEDU, 2/846, PONNUKKARA POST, THRISSUR DISTRICT. 2. UNNIKRISHNAN, S/O. GOVINDAN, AGED 32 YEARS, CHAUTHA PARAMBIL VEEDU, PALAPPURAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT. 3. NATIONAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, PATTOM ROAD, THRISSUR. BY ADV. SRI.P.V.CHANDRA MOHAN SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.666 OF 2001 ------------------------------------- Dated 19th February, 2008 JUDGMENT Koshy,J . A minor girl aged 7 sustained fatal injuries in a motor accident on 5.7.1997. After fighting for life for two months, she succumbed to the injuries on 6.9.1997. Her father and mother applied for a compensation of Rs.4,00,000/=. Total amount awarded by the Tribunal was Rs.1,43,900/= after holding that the accident occurred due to the negligence of the driver of the vehicle insured by the third respondent insurance company. The only dispute is regarding the quantum of compensation. The accident occurred on 5.7.1997. The deceased was only a student and she was not an earning member, but, loss of a child cannot be estimated in terms of money. Compensation has to be calculated on some scientific basis. As held by a three member bench of the Supreme Court in Smt.Supe Dei and others v. M/s.National Insurance Company Ltd. and another (JT 2002 (Suppl.1) SC 451) and recently in A.P.S.R.T.C. v. Pentaiah Chary (2007 AIR SCW 5689) second schedule can be taken for guidance in claims under section 166 of the Motor Vehicles Act also for assessing compensation. In 1994 when second schedule was framed, notional MFA.666/2001 2 income of a non-earning person was fixed at Rs.15,000/= per year (Rs.1,250/= per month). Even though it was argued that since the accident occurred after three years, a higher notional income should be taken, we are not accepting the same. Therefore, annual notional income of the deceased is fixed as Rs.15,000/=. One third has to be deducted for personal expenses and Rs.10,000/= should be taken as the multiplicand. Deceased was aged only 7 years. As per the second schedule, 15 is the apt multiplier. Considering the age of the father (32 years), it is 17 and considering the age of mother (26 years) 18 is the apt multiplier. However, in the case of death of an unmarried person, lowest of the multiplier is to be taken. Therefore, we take 15 as the multiplier. If that be so, compensation payable for the death and loss of family contribution will be Rs.1,50,000/= (10,000 x 15). Tribunal has awarded only Rs.62,400/= on this count. So, the additional amount payable will be Rs.87,600/=. Even though it was contended that in claims under section 163A of the Motor Vehicles Act negligence of the offending vehicle need not be proved, in claims under section 166 of the M.V.Act that has to be proved and a higher amount should be granted, that submission cannot be accepted. For pain and sufferings no amount was awarded by the Tribunal. Tribunal has granted Rs.14,500/= for loss of love and affection, funeral expenses, loss of estate etc. This is a case under section 166 of the MFA.666/2001 3 M.V. Act. The deceased was under treatment for two months. She sustained very serious injuries. She has an enduring pain for two months. In view of the crush injuries etc., we are of the opinion that at least Rs.15,000/= ought to have been awarded for pain and suffering. Immediately after the accident she was taken to the hospital from the place of incident and after death dead body has to be taken from the hospital to the house. Therefore, we award Rs.2,000/= for transportation expenses and Rs.3,000/= for funeral expenses. Thus, the total amount payable under these heads will be Rs.20,000/=. From the above amount Rs.14,500/= awarded by the Tribunal has to be deducted. Hence, the additional amount payable will be Rs.5,500/=. Medical bills amounting to Rs.79,830.13 were produced, but, Tribunal has granted only Rs.67,000/= as per the receipt from the hospital. Other than the receipt from the hospital, there would be expenses for purchasing medicines from outside as life saving medicines were given to her to save her life and there would be other expenses not covered by the bills. We are of the opinion that at least Rs.10,000/= more should have been granted for medical expenses. Thus, the additional compensation payable will be Rs.1,03,100/=. The above amount should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit, over and above the amount decreed by the MFA.666/2001 4 Tribunal. On deposit of the amount, appellants are allowed to withdraw the same in equal proportion. The appeal is partly allowed. J.B.KOSHY JUDGE K.HEMA JUDGE tks