1 fa1735 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1735 OF 2010 Bajaj Allianz General Insurance Co. ...Appellant vs. Mandubai Balasaheb Kable & Ors. ...Respondents Mr.M.M.Sathaye for the appellant Mr.V.B.Tapkir for the respondent nos.1 and 2 CORAM : A.S.OKA,J. DATE : AUGUST 5, 2011 P.C.: 1 Heard the learned counsel for the appellant and the learned counsel for the first and second respondent. The appeal is taken up for final hearing considering the controversy involved. The third respondent may not be a necessary party and therefore, notice to the third respondent is dispensed with. 2 Appeal is filed by the original opponent no.2 in a claim petition filed by the first and second respondents. Claim petition was filed specifically by invoking section 163-A of the Motor Vehicles Act, 1988. The claim for compensation was made on account of death of three months old child in a motor accident involving the motor vehicle owned by the third respondent which was admittedly insured with the appellant. 3 The first submission of the learned counsel for the appellant is that the Tribunal has committed a gross error by taking the notional income of the 2 fa1735 deceased at Rs.24,000/- per annum. He submitted that apart from the fact that under the prescribed schedule, notional income should have been at the rate of Rs.15,000/- per annum, the Tribunal could not have taken the income of Rs.24,000/- per annum in case of a three months old child. He submitted that compensation granted is not consistent with the prescribed schedule. He submitted that a sum of Rs. 7000/- granted on account of loss of company is excessive. He submitted that even a sum of Rs. 3,000/- could not have been granted. He invited the attention of the Court to the findings recorded in paragraph 7 of the Judgment which shows that the case is made out regarding breach of terms and conditions of the insurance policy has been accepted. 4 I have considered the submissions. The claim petition was specifically under section 163-A of the said Act. Therefore, compensation could have been granted only in terms of Schedule II of the said Act. Clause (6) of the Schedule II requires notional income of non earning person to be taken at Rs.15,000/- per annum. The Tribunal had no power to make a departure from what is provided in the Schedule II. As per clause (3) of the Schedule II, a sum of Rs.2000/- is payable on account of funeral expenses. Further sum of Rs.5000/- is payable on account of loss of consortium if the beneficiary is a spouse. The third item is of Rs.2500/- on account of loss of estate. The amount payable under the 2nd and 3rd items could not have been granted in the facts of the case and only funeral expenses in the sum of Rs.2000/- should have been granted. 3 fa1735 5 The learned counsel for the parties state that if the computation of compensation is made as per section 163-A r/w Schedule II, the amount payable is Rs.1,50,000/-. A sum of Rs.2000/- will have to be granted on account of funeral expenses. 6 As far as finding regarding breach of terms and conditions of the policy is concerned, the Tribunal has rightly exercised discretion by permitting the appellant to recover the compensation amount from the opponent no.1 insured (respondent no.3). Clause (4) of the operative part of the Award has not been challenged by the insured. Though a case is made out for reducing the compensation amount, clause (4) of the impugned Award will have to be retained. 7 Hence, I pass the following order : i) Clause (2) of the operative part of the impugned Judgment and Award is modified and the compensation amount of Rs.2,50,000/- is brought down to Rs.1,52,000/-. Rest of the impugned Judgment and Award is maintained and the directions contained in clause (4) stand confirmed. ii)Appeal is partly allowed on above terms. iii)The learned Member of the Tribunal will permit the appellant to withdraw the excess amount deposited by the appellant along with interest, if any accrued thereon. iv)Civil Application no.4375 of 2010 does not survive and the same is disposed of. JUDGE