IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 MFA.No. 1032 of 2002(A) OP.MV.505/1998 MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR APPELLANTS: PETITIONERS: 1. RADHAKRISHNAN, S/O. PADMANABHA PILLAI, THRIDAPPILLY VEEDU, VALLUVALLY, KOONAMMAVU P.O., ERNAKULAM DIST. 2. RAMADEVI, W/O. RADHAKRISHNAN, THRIDAPPILLY VEEDU, VALLUVALLY, KOONAMMAVU P.O., ERNAKULAM DIST. BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.MATHEWS V.JACOB (PARAVUR) SRI.N.T.NANDAKUMAR (PARAVUR) RESPONDENTS: RESPONDENTS: 1. K.K. MOHANAN, S/O. KUNJUNNY NAIR, KAMBADATH HOUSE, PULLUT P.O. 2. T.U. BASHEER, S/O. UMMER, THOTTUPARAMBATH HOUSE, KAIPAMANGALAM. 3. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, KURUPPAM ROAD, THRISSUR-1. R3 BY ADV. SRI.MATHEWS JACOB THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.T.SANKARAN, JJ. ---------------------------------------------------- M.F.A. NO. 1032 OF 2002 ---------------------------------------------------- Dated this the 14th January, 2008 JUDGMENT J.B.KOSHY, J. The son of the appellants/claimants, a five year old child, was knocked down by the driver of the offending bus, insured by the third respondent insurance company. The child was standing near a shop. The bus driven by the second respondent dashed into the shop and knocked down the child. The accident occurred on 22.6.1998. The Tribunal awarded a total compensation of Rs.70,000/- only, out of which Rs.50,000/- is allowed for death and loss of estate. 2. The Apex Court in Smt.Supe Dei and others v. M/s.National Insurance Co. Ltd. (JT 2002 Suppl.1 SC 451) and APSRTC v. M.Pertaiah Chary (2007 AIR SCW 5689), held that even if the claim petitions are filed under Section 166 compensation has to be calculated as per the guidelines under Second Schedule framed for grant of compensation to claims under Section 163A. The claimants have a contention that the compensation under Second Schedule is payable if the claim petitions are filed under Section 163A where the negligence of the driver of the offending vehicle need not be proved. Here, negligence of the driver was proved. Therefore, compensation shall be higher than that is fixed under Second Schedule. However, considering the dicta of the Apex Court, compensation need be calculated taking guideline from Second Schedule. The accident occurred in 1998. Notional income of a non-earning M.F.A. NO.1032 OF 2002 :: 2 :: child is fixed at Rs.15,000/- per year under the Second Schedule and if one-third is deducted, the notional income for a child can be fixed at Rs.10,000/- per year and 15 can be taken as the multiplier. Even if the age of the mother is taken, 15 is the apt multiplier. If that be so, compensation payable will be Rs.1,50,000/- and after deducting Rs.50,000/- the balance amount payable on this count will be Rs.One lakh. We are not interfering with the compensation granted for pain and suffering, funeral expenses etc. It is submitted that the claim was only for Rs.1,40,000/-. In Nagappa v. Gurudayal Singh and others (2002 AIR SCW 5348) the Apex Court held that award need not be restricted to the amounts claimed as the duty of the Tribunal is to award just and reasonable compensation. 3. In the above circumstances, additional amount of Rs.One lakh over and above the amount decreed by the Tribunal should be deposited by the third respondent insurance company with 7.5% interest from the date of application till deposit. On deposit of the above amount, the appellants are entitled to withdraw the same in equal proportion. The Miscellaneous First Appeal is allowed as indicated above. (J.B.KOSHY) Judge (K.T.SANKARAN) Judge ahz/ J.B.KOSHY & K.T.SANKARAN, JJ. ------------------------------------------- ------------------------------------------- M.F.A.NO. 1032 OF 2002 JUDGMENT 14th January, 2008 -------------------------------------------