1.0 The Division Bench of this Court on 20.09.2006 passed the following order:
"This appeal under Section 173 of the Motor Vehicles Act, 1988 ("the Act" for brevity) challenged the judgment and award of the Motor Accident Claims Tribunal awarding compensation of Rs.2,04,500/- with proportionate costs and interest to the parents on account of the death of their son aged 6 years in a motor vehicle accident caused by the use of the truck insured by the appellant- insurance company.
2. Mr Sandip C Shah has strongly relied on the decision dated 29.1.2004 of the Division Bench of this Court in First Appeal No.1951 of 2001 (Coram : Hon'ble Chief Justice - Mr Justice Bhawani Singh as His Lordship then was, and Hon'ble Mr Justice HK Rathod).
3. On the other hand the learned counsel for the respondent- claimants have heavily relied on the decisions of two other Division Benches of this Court - decision dated 27.9.2000 in First Appeal No.7510 of 1999 rendered by the Division Bench comprising of Hon'ble Mr Justice JN Bhatt and Hon'ble Mr Justice KM Mehta, and the decision dated 8.9.2003 in First Appeal No.1697 of 2003 rendered by the Division Bench of Hon'ble Mr Justice KR Vyas and Hon'ble Mr Justice Akshay H Mehta.
In each of the said decisions dated 27.9.2000 and 8.9.2003, the insurance company had challenged the award made by the Tribunal awarding a sum of Rs.2,04,500/- together with interest and costs on account of the death of a minor child less than 15 years of age. In each case, a Division Bench of this Court dismissed the appeal of the insurance company. Of course, the decision dated 27.9.2000 was also rendered on the ground that the appellant - insurance company had not obtained permission under Section 170 of the Act.
4. Our attention is also invited to the decision of the Apex court in Manjudevi vs. Musafir Paswan, 2005 ACJ 99. The Apex Court awarded a sum of Rs.2,25,000/- as compensation on account of death of a minor boy aged 13 years wherein the Apex Court assessed the notional income of the boy at Rs.15,000/- and adopted the multiplier of 15 years i.e. Rs.2,25,000/-. However, the Apex Court did not deduct 1/3rd amount as the amount which the deceased would have spent on himself. In the decision dated 29.1.2004, this Court has taken the view that such deduction is required to be made.
Our attention is also invited to the decision of the Kerala High Court in National Insurance Co. Ltd. vs. Muneer, 2003 ACJ 1102 analyzing the entries in the Second Schedule and the different multipliers applied by the Legislature for assessment of compensation in cases of permanent disability on the one hand and multipliers applied while actually computing the compensation payable in fatal cases.
5. Having heard the learned counsel for the parties and considering the fact that there are a large number of claim petitions where compensation is claimed on account of death of minor children in motor vehicle accidents, it would be in the fitness of things to resolve the controversy. We may broadly indicate the parameters of the controversy.
6. According to the appellant- insurance company, in case of death of a minor child upto the age of 15 years in a motor vehicle accident, the income is required to be assessed as Rs.15,000/-p.a. being the notional income as provided for a non-earning person and thereafter the multiplier of 15 for the said age group as indicated in the Second Schedule is required to be adopted bringing the amount to Rs.15,000 X 15 = Rs.2,25,000/-. However, thereafter 1/3rd amount is required to be deducted as the amount which the deceased would have spent on himself which would bring the dependency benefit to Rs.1,50,000/-. Adding thereto the conventional amount for loss to the estate at Rs.2,500/- and funeral charges at Rs.2,000/- the total compensation would work out to Rs.1,54,500/-.
The learned counsel for the insurance company has referred to the decision of the Apex Court in Manjudevi vs. Musafir Paswan, 2005 ACJ 99 and submitted that although the Apex Court did not deduct 1/3rd amount as the amount which the deceased would have spent on himself, such a decision rendered by the Apex Court in exercise of powers under Article 142 of the Constitution is not to be treated as a precedent binding on this Court and that this Court is bound to give effect to the relevant provision in the Second Schedule requiring deduction of 1/3rd amount.
7. On the other hand, the submission on behalf of the claimant is that after assessing the notional income of the minor at Rs.15,000/-p.a. as provided in the Second Schedule, there is no question of referring to the multiplier of 15 as indicated in the said Schedule because the multiplier figures are applicable only to injury cases, but for fatal cases, the Second Schedule itself provides for specific amounts of compensation depending on the age and the income of the deceased. It is submitted that since there is no corresponding compensation amount for the income of Rs.15,000/-p.a. and the nearby entires are for compensation amounts where the income is Rs.12,000/-p.a. on the one hand and Rs.18,000/- on the other hand, the mean figure between Rs.2,40,000/- and Rs.3,60,000/- has to be taken and, therefore, the said mean figure would be Rs.3,00,000/- for income of Rs.15,000/-. It is further submitted that out of the said amount of Rs.3 lakhs, 1/3rd amount is required to be deducted as the amount which the deceased would have spent on himself bringing the amount of compensation for loss of dependency benefit to Rs.2 lakhs in such cases. Adding thereto, the conventional amount of Rs.2,500 for loss to the estate and Rs.2,000 as funeral expenses, the total compensation package worked out by the Legislature is Rs.2,04,500/-.
8. In view of the aforesaid controversy and the aforesaid decisions of three Division Benches of this Court where two Division Benches have upheld the awards of the Tribunal awarding Rs.2,04,500 as total compensation in case of death of minor children and in view of the fact that the said decisions were not brought to the notice of the Division Bench which rendered the last decision dated 29.1.2004 in First Appeal No.1951 of 2001 awarding Rs.1,59,660/-, we are of the view that the matter is required to be decided by a Larger Bench.
9. While hearing the First Appeals under Section 173 of the Motor Vehicles Act, 1988, we have found that in a number of claim petitions some Motor Accident Claims Tribunals have been following the order passed by one Division Bench in First Appeal No.7510 of 1999 decided on 27.9.2000 (New India Assurance Co. Ltd. vs. Kasam Sumar Bafan) and the oder passed by another Division Bench in First Appeal No.1697 of 2003 decided on 8.9.2003 (National Insurance Co. Ltd. vs. Tarshi Vaga Koli) and on the basis of the said orders, the Tribunals have been awarding compensation of Rs.2,04,500/-. On the other hand a number of Tribunals have been following the later decision of third Division Bench in First Appeal No.1951 of 2001 dated 29.1.2004 (New India Assurance Co. Ltd. vs. Ravikumar Kailasnath Sharma). Looking to the large number of such claim petitions where the parents or the legal heirs of deceased minor children claim compensation, we are of the view that it would be in the fitness of things if the controversy is decided by a Larger Bench at the earliest.
10. We, therefore, direct the office to place the appeal before Hon'ble Chief Justice for appropriate orders in this behalf to decide the question as to what would be the amount of compensation payable to the parents of a minor upto the age of 15 years who is not earning and who dies on account of injuries received in an accident involving use of a motor vehicle as provided in Section 163A read with Second Schedule to the Act."
2.0 In view of the above order, the Registry is directed to place present appeal before Hon'ble the Chief Justice for appropriate directions at the earliest.
3.0 Civil Application may not be shown on the Board.
(K.S.JHAVERI, J.) niru* Top