Abdulla and Another vs Abdulkhader Kunju and Others

R. 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 u/s 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:

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 per cent. The Tribunal ultimately directed that the claimants-appellants are entitled to only an amount of Rs. 96,000 being 80 per cent of Rs. 1,20,000. The said amount was directed to be paid with interest at 7.5 per cent per annum from the date of the petition to the date of realization.

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 u/s 163-A of the Motor Vehicles Act. The learned counsel finally contends that interest awarded at the rate of 7.5 per cent per annum is totally inadequate and insufficient.

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.

We now come to the quantum of compensation payable. 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 u/s 163-A of the Motor Vehicles Act. u/s 168 of Motor Vehicles Act, the Tribunal has got a 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 payable u/s 163-A of the Motor Vehicles Act. Even without proof of any negligence or actual loss, the claimant in a claim u/s 163-A would be entitled for the amounts specified in the Table/chart given under clause 1 of the Table/chart. The amount awarded u/s 166 cannot by any stretch of imagination fall below the amount that would be payable u/s 163-A 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. Vs. Muneer, , in which the Division Bench of this court had taken the view that amount payable u/s 166 cannot fall below the amount payable u/s 163-A of the Motor Vehicles 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. Learned counsel for the appellants places reliance on the observations of the Supreme Court in para 16 of the decision in R.K. Malik and Another Vs. Kiran Pal and Others, . We extract the relevant passage below:

Even when compensation is payable u/s 166 read with section 168 of the Act, deviation from the structured formula as provided in 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 u/s 163-A of the Motor Vehicles Act in this case also.

We now come to the quantum of compensation that would be payable u/s 163-A of the Motor Vehicles 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 earning 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 u/s 163-A, Rs. 15,000 can safely be assumed to be the annual income of the minor child.

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 u/s 163-A, multiplier given in column 2 of the Table/ chart is irrelevant. We have adverted to this aspect in detail in the decision in National Insurance Company Ltd. Vs. P.C. Chacko and Other, . We had drawn inspiration for the said conclusion from the observations of the Apex Court in para 8 of the decision in National Insurance Co. Ltd. Vs. Gurumallamma and Another, .

Therefore, in a claim u/s 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.

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 up to 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. 3,000 to Rs. 40,000. We have already taken the view in the decision in National Insurance Company Ltd. Vs. P.C. Chacko and Other, , that each of those columns must be read to refer to persons of the income group earning up to the income specified. Thus column 1 is to be reckoned as relating to persons earning income up to Rs. 3,000. Vertical column 2 relates to persons earning income above Rs. 3,000 and up to Rs. 4,200. The last column, i.e., 13th vertical column relates to persons earning income above Rs. 36,000 and up to 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 163-A 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 to prescribe only income ranges and not specific incomes.

So construed, the deceased minor in this case can safely be held belonging to persons earning income above Rs. 12,000 and up to Rs. 18,000. For such a person aged up to 15 years, the 10th vertical column and the first horizontal column 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 us with Rs. 2,40,000.

Learned counsel for insurance company advanced a contention that inasmuch as there is no column for persons earning an income of Rs. 15,000, this court must, as it did in National Insurance Co. Ltd. Vs. Muneer, , take the average of the compensation prescribed for the persons whose annual income ranges between Rs. 12,000 - Rs. 18,000 and then hold that only an amount of Rs. 3,00,000 [(Rs. 2,40,000 + Rs. 3,60,000) v 2]. That is, of course, a possible contention. But in the light of the decision in Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, , 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, therefore, hold that under clause 1 of the Second Schedule, the compensation payable is Rs. 2,40,000.

In addition to the said amount the claimant is entitled to further amounts as stipulated in the column 3 of the Second Schedule. Under column 3 (i), an amount of Rs. 2,000 towards funeral expenses and under column 3 (iii) a further amount of Rs. 2,500 as compensation for loss to the estate were payable. No other amounts are payable under any other heads.

We, therefore, take the view that if the claim is reckoned as one u/s 163-A, the appellants would be entitled to an amount of Rs. 2,44,500 as shown below:

In the light of the decision of this court in National Insurance Co. Ltd. Vs. Muneer, and the decision of the Supreme Court in R.K. Malik and Another Vs. Kiran Pal and Others, , the amount of compensation payable u/s 166 cannot be less 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 u/s 163-A of the Act. The challenge in this appeal can succeed to the above extent only.

The Tribunal has awarded interest at 7.5 per cent from the date of the petition to the date of payment/deposit or realization. The learned counsel for the appellants argues that interest must be awarded at least at the rate of 9 per cent per annum. The learned counsel relies on the decisions of the Apex Court where interest in excess of 7.5 per cent 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 u/s 171 of the Motor Vehicles 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 per cent is in any way wrong or incorrect as to warrant invocation of our appellate jurisdiction u/s 173 of the Motor Vehicles Act.

No other contentions are raised. The appeal deserves to be allowed in part, in these circumstances. In the result:

(a) This appeal is allowed in part.

(b) In supersession of the direction issued by Claims 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.