How Compensation for death of Minor to be assessed

The Kerala High Court on 27 July, 2011 in Kumari Sree Devi Vs. K.S.R.T.C., 2011 (3) KLJ 538, 2011 (3) KLT 716, 2011 (3) KHC 484, ILR 2011 (3) Ker. 671 held that “in a claim for compensation in respect of the death of a minor child under Sec.166 of the M.V. Act the claimants must be held entitled, at least, to the amount which would have been payable if the claims were staked under Sec.163A of the M.V. Act.

A bench comprising of Justice R. Basant and Justice N.K. Balakrishnan also pointed out that “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.”

# Questions arose for consideration in this appeal are:

How is compensation payable for loss suffered by the parents in the case of death of a non-earning minor child to be assessed?

Can the Tribunals insist that such compensation payable under Sec.166 of the Motor Vehicles Act cannot fall below the amount that would be payable under Sec.163A of the M.V. Act?

# Compensation for Death of Minor

The claimants are parents and brother of the deceased – a child aged 15 years who suffered injuries in a motor accident. The claimants lodged a claim for compensation under Sec.166 of the Motor Vehicles Act. Against a claim for Rs. 5,00,000/-, the Tribunal awarded a total amount of Rs. 1,86,000/- as compensation.

The challenge is directed only against the quantum of compensation awarded. It is contended that the quantum of compensation fixed by the Tribunal is painfully low and inadequate. The learned counsel for the appellants submits that the quantification of the loss of dependency is grossly inadequate and unscientific.

The Tribunal erred in reckoning the annual income as Rs. 15,000/-. The Tribunal did not realistically take into account the status and position in life of the parents of the deceased child at all. If the Tribunal had taken into consideration all the relevant aspects including the physical, mental and intellectual accomplishments of the child, a much higher multiplicand could have been reckoned.

The gross error committed by the Tribunal is in reckoning only Rs. 15,000/- as the prospective annual income. The amount awarded by the Tribunal as compensation falls far below the amount which would have been payable if the claim were raised under Sec.163A of the M.V. Act. They are entitled for a much higher amount as compensation, contends counsel.

The learned counsel for the appellants points out that in M.S. Grewal v. Deep Chand Sood (AIR 2001 SC 3660) and Lal Wadhwa v. State of Bihar (AIR 2001 SC 3218) the Supreme Court had awarded much larger amount – about Rs. 5,00,000/- in both cases as compensation for loss suffered by the parents in the case of death of minor children of aged 15 years.

The computation of compensation payable in respect of minor children who have not started earning has been one of the vexing problems in the law relating to computation of compensation. There are several imponderables and to arrive at a figure by deploying the multiplier-multiplicand method is always problematic.

As observed by the Supreme Court in Lal Wadhwa (supra), loss of a child to the parents is irrecoupable and no amount of money could compensate the parents. The child had not started earning and the court will have to speculate on the possible earnings of the child. Sufficient inputs to authentically ascertain the possible future placement in life of the child will not be forthcoming. The courts have to provide for several imponderables. Provision has to be made for the accelerated lump sum payment of compensation also. No ready reckoner formula can be devised for such ascertainment of compensation. All relevant inputs have to be taken into account and the appropriate amount has to be ascertained. Position in life of the parents may not be crucially relevant or vital in such a situation. Suffice it to say that if the multiplier-multiplicand method were to be adopted, courts would do well to bear in mind the principles relating to computation of compensation in Sarla Verma v. DTC (2009) 6 S.C.C. 121).

In respect of a child aged upto 15 years, Sarla Verma (supra) does not also prescribe any multiplier. The 2nd Schedule to the M.V. Act prescribes 15 to be a multiplier in the case of permanent disability; whereas the amounts which are stipulated as compensation payable in the case of death reveal that the framers of the scheme had reckoned 20 as the multiplier.

The real dispute is about the multiplicand that can be adopted. No better or satisfactory indications are available in the instant case to ascertain the probable income which the minor aged less than 15 years would have earned after he attains the age of earning.

The Tribunal, in these circumstances, felt obliged to fall back on the presumption of prudence which courts are permitted to draw in a claim under Sec.163A of the M.V. Act in the case of non-earning persons.

The Court opined that the Tribunal did not in any way commit any error in having chosen to fall back on that presumption of prudence considering the nature of the materials available in this case.

The learned counsel for the appellants submits that the Tribunal ought to have taken note of the education, employment and earning of the father of the child. It is further contended that the Tribunal should have taken note of the build, height and weight of the child as per the indications available in the post- mortem certificate. An idea about the curricular and extra- curricular achievements of the child can also be gathered from the totality of inputs that were placed before the Tribunal. The learned counsel argues that, in these circumstances, a much higher multiplicand must have been taken by the Tribunal.

Computation of compensation is not a science of exactitude and it certainly is in the mixed realm of art and science. So many imponderables are to be taken into consideration. As rightly observed in certain precedents, the Tribunals will have to resort to “guesstimation”.

In any view of the matter, the Court unable to agree that the Tribunal can be found fault with for not accepting any multiplicand above Rs. 15,000/- per annum. At any rate, invoking our appellate jurisdiction under Sec.173 of the M.V. Act the Court not persuaded to disagree or interfere with the conclusion of the Tribunal on that aspect.

It is, in these circumstances, that the contention becomes relevant that the appellants should be awarded, at least, the amount payable under Sec.163A of the M.V. Act. Under Sec.168 of the M.V. Act the Tribunals are constituted to ensure that just and reasonable compensation is awarded to the victims of motor accidents. In a claim under Sec.163A of the M.V. Act not even negligence need be proved. Dependency also does not have to be proved.

Advocates Poovapally M. Ramachandran Nair, R.V. Abhishek appeared for  the petitioners and Standing Counsel of KSRTC Sajeevkumar K. Gopal and advocate Lal George appeared for the Respondents.