IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 MFA.No. 379 of 2002() ------------------------------- OPMV.370/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT: PETITIONERS: ------------------- 1. K.P.UMMER, S/O. AHAMMED, KOLAKKADAN PADATHPEEDIYAKKAL HOUSE,(P.O)OORAKAM, M MELMURI, POOLAPPEES. 2. C.H.RAMLA, W/O. K.P.UMMER, KOLAKKADAN PADATHPEEDIYAKKAL HOUSE,(P.O)OORAKAM, MELMURI, POOLAPPEES. BY ADV. SRI.K.P.MUJEEB RESPONDENTS: RESPONDENTS: ------------------------- 1. MOHAMMEDKUTTY, S/O.AVARANKUTTY, MOOZHIKKAL HOUSE, CHEROOR P.O., VENGARA. 2. KALATHINGAL SAKEER, S/O. MOIDEEN, KALATHINGAL HOUSE, CHEROOR P.O., VENGARA. 3. UNITED INDIA ASSURANCE CO.LTD., TIRUR. BY ADV. SRI.P.V.JYOTHI PRASAD - - R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.379 OF 2002 ------------------------------------- Dated 7th February, 2008 JUDGMENT Koshy,J . Unfortunate parents of a child aged nine applied for compensation as fatal injuries were sustained by the child in a motor accident due to the negligence of the driver of the vehicle insured by the third respondent insurance company. Since the child was not an earning member, Tribunal awarded only Rs.50,000/= as compensation for death apart from awarding Rs.12,000/= for transport to hospital, pain and suffering, funeral expenses etc. Accident occurred on 2.7.1995, after framing of the second schedule. In second schedule Rs.15,000/= is fixed as annual notional income for a minor child. For all non-earning persons compensation has to be calculated taking Rs.15,000/= annual notional income. It is true that death of a child cannot be measured in terms of money. But, at the same time, compensation has to be calculated on a scientific method. Apex Court in various decisions held that even though application is filed under section 166 of the Motor Vehicles Act, second schedule can be taken as a guideline for calculating compensation (Smt.Supe Dei and others v. M/s.National Insurance Company Ltd. and another (JT 2002 (Suppl.1) SC 451) and A.P.S.R.T.C. v. MFA.379/2002 2 M.Pentaiah Chary (2007 AIR SCW 5689). The contention that for claiming compensation under section 163A negligence of the driver of the offending vehicle need not be proved, but, in section 166 claims negligence has to be proved and a higher compensation has to be granted cannot be accepted. Here, the child was aged only nine years. If second schedule is taken for guidance, 15 is the multiplier. But, we have to take the age of the father and mother. Considering the above, we take 13 as the multiplier. After deducting one third for personal expenses, Rs.10,000/= can be taken as loss of family contribution. Then compensation payable for the death of the child will be Rs.1,30,000/=. Rs.50,000/= was already awarded. Therefore, the additional amount payable will be Rs.80,000/=. The above amount of Rs.80,000/= should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit. On deposit of the same, appellants are allowed to withdraw the same in equal proportion. The appeal is partly allowed. J.B.KOSHY JUDGE K.HEMA JUDGE tks