IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 MACA.No. 618 of 2008(F) ----------------------------------- O.P(MV).NO.979/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/ 3RD RESPONDENT IN THE O.P: ---------------------------------------------------------------- UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE NO.I, THIRUVANANTHAPURAM, REP. BY THE DEPUTY MANAGER, UNITED INDIA INSURANCE CO., LTD, REGIONAL OFFICE, ERNAKULAM, SARANYA, HOSPITAL ROAD, KOCHI-II. BY ADV. SRI.A.R.GEORGE. RESPONDENTS/ CLAIMANTS & RESPONDENTS 1 & 2: ----------------------------------------------------------------------------- 1. ARUL RAJ, S/O.IRUDAYAM, RC THERUVU, KALACHANTHA, KALIYICKAVILA P.O., KANYAKUMARI DIST, TAMIL NADU. 2. BABY [PHILOMINAL], W/O.ARUL RAJ-DO-DO- 3. D. RAJAMONY, PANDIMAMMOODU, CHERUVARAKONAM, PARASSALA PO., NEYYATTINKARA TALUK THIRUVANANTHAPURAM DISTRICT. 4. S.NANTHAKUMAR, S/O. SOBITHA RAJ, HOUSE NO.23/17B, ALUNINNAVILAI VEEDU, PACODE PO., KANYAKUMARI DISTRICT, TAMIL NADU. ADV. SRI.NAGARAJ NARAYANAN FOR R1 & R2, SRI.SAIJO HASSAN FOR R1 & R2, SRI.A.S.SABU FOR R1 & R2, SRI.N.NARAYANAN NAIR FOR R1 & R2. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & THOMAS P.JOSEPH, JJ. -------------------------------------- M.A.C.A.No.618 OF 2008 ------------------------------------- Dated 26th August, 2008 JUDGMENT Koshy,J . Heard both sides. 2. A two and a half year old male child sustained fatal injuries in a motor accident on 6.6.2003 and succumbed to the injuries on the spot. The parents of the child applied for compensation contending that driver of the vehicle insured by the appellant insurance company was negligent and responsible for the accident. The amount claimed was Rs.3,00,000/=. The Tribunal has awarded a total compensation of Rs.2,20,000/=. The appeal is filed by the insurance company contending that the amount awarded is excessive. 3. The first question is regarding the notional income to be assessed as the child was aged only 2 ½years. Death of a child cannot be compensated in pecuniary terms to the father and mother and the loss cannot be compensated at all. It will have repercussions on their physical and mental health also and the agony caused by it will continue till their death. However, compensation has to be calculated on a scientific basis. In various decisions of the Apex Court and this court assessing compensation for the death of children by various methods and on the facts and circumstances of the case, different MACA.618/2008 2 amounts were awarded. In one case, a Division Bench of this court held that compensation awarded should not be less than the compensation payable under section 163-A as compensation under section 163-A is payable for the death even if driver of the offending vehicle is not negligent. Here, negligence is proved. Therefore, compensation should be more than what is fixed under section 163-A. Another view is that being an infant, only nominal compensation need be awarded. In any event, Legislature has given a broad outline by giving a formula under the second schedule. It is true that as already stated, while granting compensation under section 163-A, negligence of the driver of the offending vehicle need not be proved and under section 166 claims, various matters can be taken into account for calculation of compensation. In 1994 when the second schedule was framed, notional income of a non-earning person including an infant was fixed as Rs.15,000/= per year (Rs.1,250/= per month). The incident on hand occurred in 2003. The Tribunal fixed Rs.18,000/= as the annual income. Considering the erosion of money value, we are of the opinion that notional income of Rs.18,000/= fixed (Rs.1500/= per month) requires no change. With regard to the multiplier fixed, if the second schedule is taken as a guideline, considering the age of the child, 15 is the apt multiplier. But, it has been held by the Supreme Court in various cases that if the motor accident victim is unmarried, MACA.618/2008 3 the age of the claimants will have to be looked into. Here, father was aged 41 and the mother was aged 32 at the time of the accident. Even if the age of the father is taken into account, 15 is the apt multiplier taking guidelines from the second schedule. So, multiplier taken as 15 needs no interference. After deducting one third for personal expenses, the Tribunal calculated compensation accordingly and awarded an amount of Rs.1,80,000/= for loss of family contribution. However, since the amount of Rs.1,80,000/= includes the compensation for loss of child to the father and mother, we are of the opinion that Rs.15,000/= awarded for loss of love and affection and Rs.10,000/= awarded for loss of estate need not have been awarded. The Tribunal has awarded Rs.5,000/= towards funeral expenses. Considering the present expenses for funeral and subsequent obsequies, we are of the opinion that Rs.5,000/= awarded for funeral expenses need not be changed. The child was taken to the hospital and then by ambulance the body had to be transferred to the house. The Tribunal has awarded Rs.3,000/= towards transportation charges and Rs.2,000/= towards damages to clothing. We are of the opinion that for transportation expenses and damage to clothing together, only Rs.3,000/= ought to have been granted. Therefore, instead of Rs.2,20,000/=, the amount payable will be Rs.1,93,000/=. The above Rs.1,93,000/= should be deposited by the appellant insurance MACA.618/2008 4 company as directed by the Tribunal with 7.5% interest from the date of application till its deposit, after deducting the amount already deposited. On deposit of the amount, claimants are allowed to withdraw the same in equal proportion. The appeal is partly allowed. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks