IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 MFA.No. 973 of 2001(D) ---------------------- OPMV.237/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANTS: ------------------- 1. GANGADHARAN. 2. PRASANNA. 3. NIDHIN (MINOR), REPRESENTED BY GUARDIAN FATHER THE 1ST APPELLANT HEREIN. ALL ARE RESIDING AT MELADATH HOUSE, KATTAPPURAM, ERUMAPETTY, THRISSUR. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON RESPONDENTS: --------------------- 1. K.N.SURESH, S/O.HARIHARAN. 2. K.S.ARUN, S/O.SURESH. RESPONDENTS 1 AND 2 ARE RESIDING AT KALLENPARAMBIL HOUSE, GRAMALA, P.O.M.G.KAVU, THRISSUR DISTRICT. 3. THE KERALA STATE INSURANCE DEVELOPMENT OFFICE, AYYANTHOLE, THRISSUR-3. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 8.1.2008, THE COURT ON 08/01/2008 DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.973 of 2001 ----------------------------------------- Dated this the 8th day of January, 2008 JUDGMENT Koshy, J. A 14 year old girl, while travelling as a pillion rider, sustained fatal injuries, when another motor cycle came from the opposite direction hit the same. Claim for compensation was filed against the owner, driver and the Insurance Company (Kerala State Insurance Department) for an amount of Rs.1,50,000/-. The Tribunal found that the accident occurred due to the negligence of both the drivers of the motor cycles. The owner of the motor cycle, in which she was travelling as a pillion rider, was her father himself and he was not impleaded. Therefore, only 50% of the compensation was awarded. It is a head on collision. Considering the police charge, accident- cum-wound certificate and Exhibit X1 document show that finding of negligence by the Tribunal is justified. Then the question is what is the amount of compensation to be awarded. The accident occurred on 25.9.1998. Under the second schedule, notional income of a non- earning person was fixed as Rs.15,000/- in 1994 and for a 14 year old child, 15 is the multiplier fixed. It is now settled under law that M.F.A.973/01 2 for calculation of compensation under Section 166 of the Motor Vehicles Act also second schedule should be taken for guidance. Further, in this case mother was 38 years old. 16 is the multiplier. Considering the fact that deceased was not married, we take into account the age of the mother as well as the age of other legal representatives for fixing the multiplier. Therefore, we fix 15 as the multiplier. One-third of the income has to be deducted. Hence, compensation payable will be Rs.1,50,000/- for loss of dependency. Tribunal awarded only Rs.85,000/- for loss of dependency. Here additional compensation payable under this head is Rs.65,000/-. Even though it is contended that under Section 163A, even if negligence of the driver of the offending vehicle need not be proved claimant will be entitled to compensation but under Section 166 negligence of the driver of the offending vehicle has to be proved. Therefore, a higher amount should be awarded under 166 claims cannot be accepted in view of the various Apex Court decisions. The Tribunal awarded Rs.5,000/- for pain and suffering and Rs.15,000/- for loss of love and affection and loss of estate. For funeral expenses including transportation, Rs.5,000/- was awarded. We find that no enhancement is required on that heads. Hence the additional M.F.A.973/01 3 amount payable is Rs.65,000/-. Out of the above amount, 50% has to be deducted for contributory negligence. Hence, additional amount payable is Rs.32,500/-. Thus, the claimants are entitled to get a total amount of Rs.87,500/-, which is below the amount of Rs.1,50,000/- claimed. Apart from the above, the Supreme Court in Nagappa v. Gurudayal Singh and others (AIR 2003 SC 674) held that award need not be limited to the amount specified in the claim. Out of the amount of Rs.87,500/-, the Tribunal has awarded Rs.55,000/-. Therefore, additional amount payable will be Rs.32,500/-. The above amount of Rs.32,500/- should be deposited by the third respondent with 7.5% interest from the date of application till the date of deposit, over and above the amount decreed by the Tribunal. On deposit of the amount, appellants 1 and 2, father and mother, are allowed to withdraw the same. The appeal is allowed, partly. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. M.F.A.973/01 4 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No.973 of 2001 ------------------------------ JUDGMENT 8.1.2008