A.Ayyappankutty and others v Sankaran Nair and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 2ND DAY OF AUGUST 2017/11TH SRAVANA, 1939** **MACA.No. 1902 of 2014 ()** **------------------------AGAINST THE AWARD IN OPMV 1117/2007 of M.A.C.T., PERUMBAVOOR DATED 31-03-2014** **------------------------------------------------------** ## **APPELLANT(S)/CLAIMANTS 2 TO 5 :** **-----------------------------------------------------** ## **1. A.AYYAPPANKUTTY** **S/O. SANKARAN,(EXPIRED)** ## **2. VALSALA, AGED 47 YEARS,** **W/O. AYYAPPANKUTTY, CHAMBAKALA HOUSE,AIMURI, PERUMBAVOOR, KOOVAPPADY.P.O., ERNAKULAM DIST-633544.** ## **3. SAVITHA.C.A., AGED 21 YEARS,** **D/O.AYYAPPANKUTTY, CHAMBAKALA HOUSE, PERUMBAVOOR, KOOVAPPADY.P.O., ERNAKULAM DIST-633544.** **4. SUNITHA C.A., AGED 33 YEARS, W/O. BIJU K.S. KOIKKARA HOUSE, PERUMBAVOOR, ARAKKAPPADY.P.O., ERNAKULAM DIST-633544.** ## **5. THANGAMANI, AGED 80 YEARS,** **W/O. AYYAPPAN, CHAMBAKALA HOUSE,AIMURI KARA, PERUMBAVOOR, KOOVAPPADY.P.O., ERNAKULAM DIST-633544.** ## **BY ADV. SRI.JOHN JOSEPH(ROY)** **RESPONDENT(S) :** **---------------------------** ## **1. SANKARAN NAIR, AGED 64 YEARS,** **S/O. RAMAN NAIR, SITHARA HOUSE, PERUMBAVOOR VILLAGE, PERUMBAVOOR KARA, POOPANI ROAD, PERUMBAVOOR-683542.** ## **2. SANTHOSH.S.** **S/O. SANKARAN NAIR,SITHARA HOUSE, PERUMBAVOOR VILLAGE, PERUMBAVOOR KARA, POOPANI ROAD, PERUMBAVOOR-683542.** **3. THE BRANCH MANAGER,** **NEW INDIA, ASSURANCE COMPANY LTD.,ST. JOSEPH BUILDING, A.M. ROAD, PERUMB AVOOR-683542.** **R3 BY ADV. SRI.N.S.MOHAMMED USMAN R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VS** ## **C.T.RAVIKUMAR & ANIL.K.NARENDRAN, JJ. ============================= M.A.C.A. No.1902 of 2014 ============================ Dated this the 2[nd] day of August, 2017** ## **JUDGMENT** ## C.T.Ravikumar, J. This appeal is directed against the judgment and award dated 31.03.2014 in O.P.(MV)No.1117/2007 passed by the Motor Accidents Claims Tribunal, Perumbavoor. The claim petition was originally filed by the parents and one unmarried sister of the victim of the accident involved in the said case. Sunil, the victim was the rider of the motor cycle bearing Reg.No.KL-07/V-7833. On 01.05.2006, at about 6.45 p.m., while he was proceeding through Perumbavoor - Pooppani road, the motor cycle bearing Reg. No.KL-17/A-4830 driven by the first respondent, to the same direction, suddenly turned right without giving signal and consequently there occurred a collision between the said motor cycles. Sunil sustained severe injuries and succumbed to them enroute to the hospital. It is in the said circumstances that the above mentioned _M.A.C.A. No.1902 of 2014_ _-2-_ claim petition was filed under Section 163(A) of the Motor Vehicles Act (hereinafter referred to as 'the M.V. Act' for short), by his legal heirs claiming a compensation of Rs.5,00,000/-. 2. In the claim petition it was averred that he was a Carpenter by profession and was earning Rs.3,000/- per month. It was also stated that he was aged 23 years at the time of accidental death. The Tribunal calculated the compensation evidently following the multipliermultiplicand method instead of determining the compensation adhering to the structured formula under the second schedule to the M.V. Act. Taking the monthly income as Rs.3,000/- and the multiplier as 17 and making a deduction of 1/3[rd] of the income of the deceased towards his personal and living expenses, the Tribunal calculated the compensation payable under the head loss of dependency. At the outset, it is to be held that the method followed by the Tribunal in assessing the compensation in an application under Section 163(A) of the M.V. Act is improper. In an application for compensation filed under Section 163(A) of the M.V. Act _M.A.C.A. No.1902 of 2014_ _-3-_ there is no question of granting compensation under the head loss of dependency. There can be little doubt with respect to the position that in respect of such an application filed under Section 163(A) of the M.V. Act compensation has to be paid following the structured formula under the second schedule. For the said purpose identification of the multiplier is absolutely unnecessary and at any rate, there is absolutely no necessity to follow the multiplier-multiplicand method to arrive at the compensation payable. This position was settled by the Honourable Apex Court in the decision **Ramprasad Balmiki v. Anil Kumar Jain & Others** [ **AIR 2009 SC 337** ]. The decision of a Division Bench of this Court in _**Kadeeja v. Kerala State Road Transport Corporation [2013 (4) KLT 683]**_ is also relevant in this context. Going by the said decisions in an application for compensation filed under Section 163(A) of the M.V. Act, only twin factors are relevant for determining the amount of compensation. They are the age for the purpose of deciding the age group and the monthly income for the purpose of identifying the annual income range given _M.A.C.A. No.1902 of 2014_ _-4-_ atop the second schedule. On identification of those factors what remains to be done to find out the compensation payable for death is deduction of 1/3[rd] towards personal and living expenses of the deceased which he would have incurred had he been alive, from the corresponding figure of rupees given in thousands. In this case, the victim was aged 23 years at the time of his accidental death and in such circumstances the age group applicable is “above 20 years but not exceeding 25 years”. The monthly income was claimed and accepted as Rs.3,000/-. Therefore the annual income range is Rs.36,000/-. The corresponding figure with reference to the aforesaid twin factors is 648. Therefore the amount payable is Rs.6,48,000/-. Going by Note-1 in the second schedule from the said amount 1/3[rd] has to be deducted in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. On such deduction, the amount payable would be Rs.4,32,000/-. But, the Tribunal has already granted an amount of Rs.4,08,000/- under the head loss of dependency. As stated earlier, in an application filed _M.A.C.A. No.1902 of 2014 -5-_ under Section 163(A) of the M.V. Act, there is no question of granting compensation for loss of dependency and going by the second schedule compensation payable is for the death and not under such a specified head of 'loss of dependency'. In _**Kadeeja**_ 's case (supra) this Court held by looking into the provisions under Section 163(A) of the M.V. Act, that persons who are entitled to file an application for compensation for death under that section, are the legal heirs of the victim and not legal representative and as such, dependency has no relevancy. After deducting the said amount, as compensation for death an amount of Rs.24,000/- has to be granted additionally. Going by note 3 under the second schedule, general damages under 4 heads are grantable in a case of death. The petitioner was a bachelor and therefore no amount is payable under the head loss of consortium. No bills or vouchers establishing medical expenses incurred were produced. Hence, no amount is payable on that count as well. In terms of the schedule Rs.2,000/- was granted by the Tribunal towards funeral expenses. Therefore, in addition to Rs.24,000/- _M.A.C.A. No.1902 of 2014 -6-_ the appellants are entitled only to get an amount of Rs.2,500/- towards loss of estate. As a result, the appellants are entitled to get a total additional amount of **Rs.26,500/-.** 3. During the pendency of the claim petition itself the first claimant who is the father of the deceased Sunil died. Upon his death, his legal heirs, viz., his mother and one married daughter were impleaded as additional petitioners 4 and 5. Taking into account the fact that there occurred some delay for producing the legal heirship certificate, the Tribunal ordered that the appellants/petitioners would not be entitled to get interest from 21.01.2013 till 31.03.2014. In this appeal, the appellants have specifically raised a ground to mount challenge against the disinclination shown by the Tribunal in awarding interest during the said period. A perusal of the impugned judgment would reveal that it is the delay in production of the legal heirship certificate that resulted in denial of interest during the said period. The question is whether there is any justification in denying interest during the said period. Since the claim petition was filed _M.A.C.A. No.1902 of 2014_ _-7-_ under Section 163(A) of the M.V. Act, even if the legal heirs of the first petitioner, were not impleaded pursuant to his death, the said claim petition could not have been dismissed on the ground of being abated as the claim petition was jointly filed by the parents and upon the death of the father, the claim petition could have been pursued by the mother, the second applicant. The question of apportionment would arise only after quantification of the amount of compensation. Evidently, much before that stage the legal heirs of the first petitioner were impleaded and the legal heriship certificate was also produced. In such circumstances we do not find any reason at all to sustain that part of the judgment in O.P.(MV)No.1117/2007 by which the petitioners were denied interest during the period from 21.03.2013 to 31.03.2014. In short, the entire amount, viz., the originally awarded amount as also the additional amount now granted will carry interest from the date of petition till realisation. The additional compensation granted based on the reassessment of the compensation in tune with the structured formula as per this judgment _M.A.C.A. No.1902 of 2014_ _-8-_ will also carry interest at the rate of 8% per annum from the date of petition till realisation. Since there is no dispute regarding the liability of the third respondent to indemnify the insured owner of the offending vehicle the third respondent is directed to deposit the amount of additional compensation along with interest as also the interest payable during the period from 21.03.2013 to 31.03.2014 within a period of one month from the date of receipt of a copy of this judgment. The appeal is disposed of as above. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** ## Sd/- ## **ANIL.K.NARENDRAN, JUDGE** VS /TRUE COPY/ PA TO JUDGE