Motor Vehicles Act; Abdulla Vs. Abdulkhader Kunju, Kerala High Court, 27-07-2011]

Contributory Negligence – Minor – Compensation – Tribunal was grossly in error in coming to the conclusion that the minor child aged 5 years can be held to be guilty of contributory negligence. The loss will have to be correctly ascertained and the appellants will have to be held to be entitled for the entire loss suffered by them. The same cannot be scaled down by finding that the minor child aged 5 years was guilty of contributory negligence.

Motor Vehicles Act, 1988 – Section 163A – Non-earning minor aged 5 years – The child may not have been earning, but for the purpose of computation of compensation under Section 163A, Rs.15,000/- can safely be assumed to be the annual income of the minor child.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

R. BASANT and N.K. BALAKRISHNAN, JJ.

Dated this the 27th day of July, 2011

M.A.C.A.No.1887 of 2010

Abdulla Vs. Abdulkhader Kunju

For Petitioner : V. Jayapradeep; For Respondent : M.L. Suresh Kumar

J U D G M E N T

Basant, J.

Claimants are the appellants. They are parents aged 38 years and 39 years of a minor child aged 5 years who suffered injuries and succumbed to such injuries suffered in a motor accident which took place on 9.8.2006. The parents claimed

# Compensation under Section 166 of the Motor Vehicles Act

The Tribunal by the impugned award assessed the total loss suffered by the claimants at Rs.1,20,000/- as per the details shown below:

1. Transport to hospital and funeral expenses -Rs.5000/-

2. Compensation for pain and suffering -Rs.5000/-

3. Compensation for loss of dependency -Rs.100000/- (global amount fixed)

4. Compensation for loss of love and affection -Rs.10000/-

—————–

Total -Rs.1,20,000/-

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After so fixing the total loss at Rs.1,20,000/-, the Tribunal proceeded to consider the responsibility for the accident. It was held that the minor child aged about 5 years was guilty of contributory negligence to the extent of 20%. The Tribunal ultimately directed that the claimants/appellants are entitled to only an amount of Rs.96,000/- being 80% of Rs.1,20,000/-. The said amount was directed to be paid with interest at 7.5% per annum from the date of the petition to the date of realisation.

2. The learned counsel for the appellants contends that the award is not legally sustainable. It is first of all contended that the minor could not have been held to be guilty of contributory negligence at all. Further, it is contended that the quantification of the loss is unscientific and unreasonable. Thirdly, it is contended that, at any rate, the quantum of compensation awarded could not fall below the minimum amount of compensation that would be payable under Section 163A of the M.V.Act. The learned counsel finally contends that interest awarded at the rate of 7.5% per annum is totally inadequate and insufficient.

3. We have heard the arguments of both the counsel. We find it easy to agree with the learned counsel for the appellants that the Tribunal was grossly in error in coming to the conclusion that the minor child aged 5 years can be held to be guilty of contributory negligence. That contention has got to succeed. The loss will have to be correctly ascertained and the appellants will have to be held to be entitled for the entire loss suffered by them. The same cannot be scaled down by finding that the minor child aged 5 years was guilty of contributory negligence.

4. We now come to the quantum of compensation payable. The learned counsel for the appellants contends that in any view of the matter the amount of compensation to be awarded to the appellants/claimants could not be below the amount payable under Section 163A of the M.V.Act. Under Section 168 of the M.V.Act, the Tribunal has got the heavy burden on its shoulders to award compensation which is just and reasonable. While attempting to ascertain the quantum of compensation that is just and reasonable, the Tribunal cannot lose sight of the compensation that would be under Section 163A of the M.V.Act. Even without proof of any negligence or actual loss, the claimant in a claim under Section 163A would be entitled for the amounts specified in the table/chart given under clause 1 of the table/chart. The amount awarded under Section 166 cannot by any stretch of imagination fall below the amount that would be payable under Section 163A of the Act, contends the learned counsel. The learned counsel for the appellants further relies on the decision of this court in National Insurance Co. Ltd. v. Muneer (2003(1) KLT 137) in which the Division Bench of this court had taken the view that the amount payable under Section 166 cannot fall below the amount payable under Section 163A of the M.V.Act. That is also a case where the compensation payable in respect of the death of a minor child came up for consideration before the court. Our attention has not been drawn to any precedent which takes a contra view. The learned counsel for the appellants places reliance on the observations of the Supreme Court in paragraph 14 of the decision in

# R.K. Malik v. Kiran Pal, (2009) 14 SCC 1

We extract the relevant passage below:

“Even when compensation is payable under Section 166 read with Section 168 of the Act, deviation from the structured formula as provided in the Second Schedule is not ordinarily permissible, except in exceptional cases.”

Though detailed discussions are not there in the said decision, the said observations are also consistent with the conclusion reached by this court in National Insurance Co. Ltd. v. Muneer (supra). We, therefore, accept the contention of the learned counsel for the appellants that at any rate the appellants are entitled to the amount which will be payable under Section 163A of the M.V.Act in this case also.

5. We now come to the quantum of compensation that would be payable under Section 163A of the M.V.Act in the case of death of a non-earning minor aged 5 years like the deceased child of the claimants in this case. Under clause 6 of the Second Schedule the child who had not started earning can safely be assumed to be earn a notional income of Rs.15,000/- per annum. That inference appears to be perfectly sound and reasonable in the light of the specific mandate of clause 6. The child may not have been earning, but for the purpose of computation of compensation under Section 163A, Rs.15,000/- can safely be assumed to be the annual income of the minor child.

6. The child was aged below 15 years (he is said to be 5 years old). The deceased therefore comes squarely under the first horizontal column in the table/chart given under clause 1 of the Second Schedule. His monthly income as assumed already is Rs.15,000/-. In a claim under Section 163A, the multiplier given in column 2 of the table/chart is irrelevant. We have adverted to this aspect in detail in the decision in M/s.National Insurance Co. Ltd. v. P.C.Chacko and others (judgment dated 22.7.2011 in MACA Nos.223/07 and 243/07). We had drawn inspiration for the said conclusion from the observations of the Supreme Court in paragraph 8 of the decision in

# National Insurance Co. Ltd. v. Gurumallamma, 2009 ACJ 2660

7. Therefore, in a claim under Section 163 A the burden of the Tribunal is only to ascertain the correct horizontal column and the correct vertical column. At the point where the horizontal column and vertical column meet, we get a figure and that figure is stated to be “rupees in thousands” specifying compensation payable in case of death. From such figure given in thousands, one-third is to be reduced for the personal expenses of the deceased as stipulated in the note under the table/chart.

8. It is easy to identify the horizontal entry. The deceased in this case comes within the purview of the first horizontal column relating to the victims age upto 15 years. Now the attempt must be to ascertain the appropriate vertical column. There are 13 vertical columns dealing with the annual income of the victims of accidents starting from Rs.3000/- to Rs.40,000/-. We have already taken the view in the decision in M/s.National Insurance Co. Ltd. v. P.C.Chacko and others (judgment dated 22.7.2011 in MACA Nos.223/07 and 243/07) that each of those columns must be lend to refer to persons of the income group earning upto the income specified. Thus column No.1 is to be reckoned as relating to persons earning income upto Rs.3000/-. Vertical column No.2 relates to persons earning income above Rs.3000/- and upto Rs.4200/-. The last column, i.e. 13th vertical column relates to persons earning income above Rs.36,000/- and upto Rs.40,000/-. We have taken the view that this is the only reasonable way to understand the vertical columns in the table/chart in the Second Schedule. To so understand the column, we have drawn inspiration from the purpose and object of Section 163A and the Second Schedule. The thrust of the provision, we have held, is to avoid avoidable disputes. If the vertical columns do not yield to such an interpretation, the burden would still rest with the Tribunals to ascertain the actual income relying on volume of evidence that may be adduced. That is why the legislature wanted only to prescribe income ranges and not specific incomes.

9. So construed, the deceased minor in this case can safely be held belongs to persons earning income above Rs.12,000/- and upto Rs.18,000/-. For such a person aged upto 15 years, the 10th vertical column and the first horizontal columns meet at Rs.360/-. This is the amount given in thousands. Therefore, Rs.3,60,000/- is the gross compensation specified under the table/chart in the Second Schedule. From this one-third is to be deducted for the personal expenses of the deceased. That would leave as Rs.2,40,000/-.

10. The learned counsel for the insurance company advanced a contention that in as much as there is no column for persons earning an income for Rs.15,000/-, this court must, as it did in National Insurance Co. Ltd. v. Muneer (supra), take the average of the compensation prescribed for the persons annual income ranging Rs.12,000-Rs.18,000 and then hold that only an amount of Rs.3 lakhs (2,40,000 plus 3,60,000/2). That is, of course, a possible contention. But in the light of the decision in

# Deepal Girishbhai Soni v. United Insurance Co. Ltd. Baroda, AIR 2004 SC 2107

that the amount of Rs.40,000/- is the outer limit and the principle underlying the fixation of compensation cannot be extended to persons having annual income above Rs.40,000/-, we do not deem it appropriate to reckon the vertical income groups as merely indicating the income payable for the person. That is why we have already taken the view that the vertical columns must be held to be income ranges and not specific incomes. We are therefore hold that under clause 1 of the Second Schedule, the compensation payable is Rs.2,40,000/-.

11. In addition to the said amount the claimant is entitled to further amounts as stipulated in column 3 of the Second Schedule. Under column 3(i), an amount of Rs.2000/- towards funeral expenses and column 3(iii) a further amount of Rs.2500/- as compensation for loss of estate were payable. No other amounts are payable under any other heads.

12. We, therefore, take the view that if the claim is reckoned as one under Section 163A, the appellants would be entitled to an amount of Rs.2,44,000/- as shown below:

1. Compensation for fatal accidents under clause (1) of the Second Schedule -Rs.2,40,000/-

2. Compensation for funeral expenses under clause 3(i) -Rs.2,000/-

3. Compensation for loss of estate under clause 3(iii) -Rs.2500/-

—————–

Total -Rs.2,44,500/-

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13. In the light of the decision of this court in National Insurance Co. Ltd. v. Muneer (supra) and the decision of the Supreme Court in R.K.Malik v. Kiran Pal (supra) the amount of compensation payable under Section 166 cannot be lesser than the above said amount of Rs.2,44,500/-. Therefore, the appellants are entitled to get at least that amount even in a claim under Section 163A of the Act. The challenge in this appeal can succeed to the above extent only.

14. The Tribunal is awarded interest at 7.5% from the date of the petition to the date of payment/deposit or realisation. The learned counsel for the appellants argues that interest must have been awarded at least at the rate of 9% per annum. The learned counsel relies on the decisions of the Supreme Court where interest in excess of 7.5% has been awarded by the Supreme Court. The course followed by the Supreme Court cannot be reckoned as declaration of law under Article 141 of the Constitution. It is well settled that interest payable can be fixed by the Tribunal under Section 171 of the M.V.Act provided the discretion is reasonably exercised by the Tribunal. We are unable to agree that the course followed by the Tribunal in fixing the interest payable at 7.5% is in any way wrong or incorrect as to warrant invocation of our appellate jurisdiction under Section 173 of the M.V.Act.

15. No other contentions are raised. The appeal deserves to be allowed in part, in these circumstances.

16. In the result:

a) This appeal is allowed in part.

b) In supercession of the direction issued by the Tribunal, the appellants are found entitled to a total amount of Rs.2,44,500/- as compensation.

c) All other directions of the Tribunal are upheld.

d) It is made clear that interest shall be payable as directed by the Tribunal on the entire amount of compensation.

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