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