IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 MFA.No. 128 of 2002() ------------------------------- OPMV.302/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT: PETITIONERS ------------------- 1. MOIDEEN ALIAS KUNHEENKUTTY, KALATHINGAL CHENGUVETTI KUNDU,KOTTAKKAL 2. AYISHA W/O. MOIDEEN ALIAS KUNHEENKUTTY KALATHINGAL CHUNGUVETTI KUNDU, KOTTAKKAL BY ADV. SRI.P.CHANDRASEKHAR RESPONDENTS: RESPONDENTS ------------------------ 1. ASHRAF, T.M.MALAYATH PERUMANNA, VAZHAKULAM P.O., MALAPPURAM, OWNER OF THE PICK UP BEARING NO.KL 10C/9799. 2. MANAYATH ASHRAF S/O. MUHAMMED HAJI MANJIYANTHARA, VAZHAKULAM,OWNER OF THE PICK UP BEARING NO.KL 10C/9799. 3. NATIONAL INSURANCE CO.LTD., MANJERI, CERTIFICATE NO.41196/06560. 4. M.P.MOOSA,S/O.ALAVIKUTTY,MALAPPURATH HOUSE, KUTTIPPALA, EDARIKODE,OWNER OF THE AUTORICKSHAW NO.KL 108/6063. 5. P.MUSTHAFA S/O.RAYIMMU,PARAVAKKAL HOUSE, PARAPPUR MALAPPURAM, DRIVER OF THE AUTORICKSHAW KL 108/6063. 6. NATIONAL INSURANCE CO.LTD., MANJERI. BY ADV. SRI.E.M.JOSEPH - R3 & R6 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.128 OF 2002 ------------------------------------- Dated 4th February, 2008 JUDGMENT Koshy,J . This appeal is filed by unfortunate parents who lost their daughter Shahira in a road accident on 1.4.97. While she was travelling with her father in an autorickshaw, a pick up van collided with the autorickshaw. The deceased was aged 12 and was a student of 7th standard. Tribunal found that the accident occurred due to the negligence of the driver of the pick up van insured by the third respondent insurance company, but, awarded only a compensation of Rs.58,000/=. For the death and loss of family contribution only a minimum amount of Rs.50,000/= was granted. It is well settled law that loss of a child cannot be measured in terms of money. But, for assessing compensation some methods have to be adopted. Apex Court in Smt.Supe Dei and others v. National Insurance Company Ltd. and another (JT 2002 (Suppl.1) SC 451) and recently in A.P.S.R.T.C. v. M.Pentaiah Chary (2007 AIR SCW 5689) held that even though second schedule is framed for calculating compensation in claims under section 163A of the Motor Vehicles Act, that can be taken as a guidance for calculating compensation in claims under section 166 of the M.V.Act MFA.128/2002 2 also. Of course, there is a contention that second schedule was framed in 1994 and in accidents occurred in subsequent years, a higher notional income can be taken. In section 163A claims, negligence of the offending vehicle need not be proved and notwithstanding any contributory negligence, compensation has to be granted. In claims under section 166, negligence of the driver of the offending vehicle has to be proved. Therefore, according to the appellant compensation granted under section 166 should be higher. However, we are calculating compensation taking guidance from the second schedule. Rs.15,000/= is the annual notional income fixed in the second schedule for a non-earning person and 15 is the multiplier fixed for the death of children below 15 years. Here, considering the age of the mother as well as deceased child, we fix 15 as the multiplier and deducting one third towards personal expenses Rs.10,000/= is fixed as the annual loss of family contribution. If that be so, compensation payable for loss of family contribution will be Rs.1,50,000/= (Rs.10,000/= x 15). Tribunal has awarded only Rs.50,000/=. Therefore, claimants are entitled to an additional amount of Rs.1,00,000/= under that head. Just and reasonable compensation was awarded under other heads. The above Rs.1,00,000/= should be deposited by the third respondent insurance MFA.128/2002 3 company with 7% interest from the date of application till its deposit. Since the accident occurred in 1997, 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