Baby George and Others v. A. Kumar, Sivadasan and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937** ## **MACA.No. 2687 of 2012 ()** **------------------------OPMV 890/2007 of MACT, IRINJALAKUDA DATED 12-10-2012 ----------------------------------------------** ## **APPELLANT(S)/PETITIONERS:** **------------------------------------------------** ## **1. BABY GEORGE** - **W/O.LATE GEORGE, ARAKKAL PUTHUKATTUKARAN HOUSE KHANNA NAGAR P.O., MUKUNDAPURAM TALUK THRISSUR DISTRICT.** ## **2. JOBY,** - **D/O. LATE GEORGE, DO. DO.** ## **3. JOSHY,** **S/O.LATE GEORGE, DO. DO.** **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** ## **1. A. KUMAR** **S/O.ANGAPPAN, 426, THYAGIKUMARAN STREET COIMBATORE-600018.** ## **2. SIVADASAN** **S/O.KUTTAN, VALAYAMPARAMBIL HOUSE, EDATHARA P.O. PALAKKAD-678611.** **3. ORIENTAL INSURANCE CO.LTD., SUKUNA BUILDINGS, 2ND FLOOR, 707 AVINASI ROAD, COIMBATORE-600018.** **R1 & 2 BY SRI.GEORGE CHERIAN (THIRUVALLA) R3 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **VS** ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** **--------------------------------------------------M.A.C.A. No.2687 of 2012** **---------------------------------------------------** Dated this the 13[th] day of January, 2016 ## **JUDGMENT** ## **C.T.RAVIKUMAR, J.** Appellants were the claimants in O.P.(M.V.) No.890/2007 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. They filed an application for compensation under Section 163A of the Motor Vehicles Act (hereinafter referred as 'the MV Act' for short), pursuant to the death of Joyson, the son of the first appellant and the brother of appellants 2 and 3, in a motor vehicle accident. 2. The accident was occurred on 15.06.2007 at 6.00 pm. while the said Joyson was riding a motor cycle bearing Reg.No.KL-45/3567 through Koratty-Chalakudy sector of NH-47. It occurred when he reached in front of Divine Retreat Centre Muringoor. The offending vehicle which is a _M.A.C.A. No.2687 of 2012 -2-_ goods vehicle bearing Reg.No.TDE-9725 driven by the second respondent in a rash and negligent manner knocked down his vehicle from behind. Joyson succumbed to the head injuries sustained, on the same day itself, from St.James Hosptial, Chalakudy. Respondents 1 and 3 are respectively the owner and the insurer of the offending vehicle. In the claim petition filed by the appellants they claimed an amount of Rs.4,65,300/- and the Tribunal granted an amount of Rs.3,29,500/- following the multiplier method. It was also ordered that the said amount would carry interest at the rate of 7.5% per annum from 14.08.2007 till realisation. The appellants seek enhancement of the amount of compensation. 3. We have heard the learned counsel for the appellant and also the learned counsel appearing for the third respondent. 4. Appellants raised various contentions in this _M.A.C.A. No.2687 of 2012 -3-_ appeal. Firstly, it is contended that the deceased was getting an amount of Rs.3,300/- as monthly income and in support of the same, Ext.A3 certificate was produced and the Tribunal erroneously took Rs.2,250/- as the monthly income for calculating the compensation. The learned counsel for the appellant contended that the said fixation is erroneous for the reason that even in the case of an unemployed person or a housewife, going by the authorities on the said subject, the monthly income has to be taken at least as Rs.3,000/-. Secondly, it is contended that the Tribunal has also gone wrong in adopting the multiplier method as the application was filed under Section 163-A of the MV Act. In a number of decisions the position has been made clear by the Honourable Apex Court that in an application under Section 163A, of the MV Act a determination of the compensation by applying judicial mind as in the case of an application under Section 166 of the MV _M.A.C.A. No.2687 of 2012_ _-4-_ Act, is not required. In fact, the Honourable Apex Court held that when an application under Section 163A is made for compensation in respect of an accident occurred by the use of a motor vehicle, the structured formula provided under the second schedule to MV Act alone need be taken looked into for the purpose of awarding the compensation. The learned counsel contended that in the light of the said circumstances the impugned award is liable to be modified and the appellants are entitled to get an enhanced compensation following the structured formula. 5. After considering the rival pleadings and contentions we find that there is nothing on record to show that the respondent had raised and substantiated any contention to the effect that the deceased was negligent and it is the negligence from the part of the deceased that ultimately resulted in the accident that caused his death. In any such case if the income of the deceased was within the _M.A.C.A. No.2687 of 2012_ _-5-_ prescribed limits of Rs.40,000/-, for computing the compensation the Tribunal is bound to follow the structured formula given under the second schedule to the MV Act. This position cannot be disputed in the light of the decision of the Honorable Apex Court in _**National Insurance Company Ltd v. Gurumallamma and Another**_ reported in _**2009 (16) SCC 43**_ and the decision of a Division Bench of this Court in _**Kadeeja v. Kerala State Road Transport Corporation**_ reported in _**2013 (4) KLT 683.**_ In _**Gurumallamma'** s case(supra)_ the Honourable Apex Court held thus: _“As the second scheduled provides for a structured formula, the question of determination of payment of compensation by application of judicial mind which is otherwise necessary for a proceeding rising out of a claim petition filed under Section 166 ought not arisen.”_ 6. The Tribunal in a proceeding under Section 163A of the MV Act is required to determine the amount of compensation as specified in the second schedule. It is not _M.A.C.A. No.2687 of 2012_ _-6-_ required to apply the multiplier except in a case of injuries and disabilities. In _**Kadeeja** 's case(supra)_ a Division Bench of this Court held that in a claim under Section 163A dependency has no relevance and in death cases under Section 163A that the Tribunal need not go into the question as to selection of multiplier. It is further held that in respect of the claim under Section 163A once it is proved by the claimants that they are the legal heirs of the deceased they are entitled to claim compensation for the death of the deceased in terms of the structured formula. In the light of the abovementioned decisions we have no hesitation to hold that the Tribunal went wrong in following the multiplier multiplicand method in the matter of arriving at the compensation payable in an application under Section 163A of the Motor Vehicles Act. 7. There is no dispute with respect to the fact that the appellants are legal heirs of the deceased Joyson and the _M.A.C.A. No.2687 of 2012_ _-7-_ offending vehicle was having a valid insurance coverage at the time of the accident. It is also to be noted that there is absolutely no contention that the deceased was having an income of more than Rs.40,000/- per annum which would take the claim outside the purview of Section 163A of the MV Act. Evidently in this case, by producing Ext.A3 the appellants contended that the deceased Joyson was having a monthly income of Rs.3,300/-. Even if the said claim was taken as the correct version as regards his monthly income then also it would fall well within the purview of Section 163A of the Act. As noticed hereinbefore though the appellants claimed, relying on Ext.A3, that the deceased Joyson was having a monthly income of Rs.3,300/- the Tribunal declined to accept the same mainly for the reason that the said certificate was not legally proved. There cannot be any doubt with respect to the position that a mere production of such a document in a proceeding will not and _M.A.C.A. No.2687 of 2012_ _-8-_ cannot compel the Court or Tribunal to consider and act upon such a document when it was not legally brought on record. The person who issued the certificate was not examined on behalf of the appellants. But, at the same time it is to be noted that the Tribunal took the monthly income of the deceased Joyson only at Rs.2,250/-. The question is whether the contention of the appellant that the said monthly income taken by the Tribunal was on the lower side, is to be sustained. There can be little doubt that even in the case of a housewife belonging to the age group of 34-59 years the monthly income even on modest estimation has to be taken at least as Rs.3,000/-, in terms of the decision of the Honourable Apex Court in the decision in _**Latha Wadhwa and Others v. State of Bihar and others**_ reported in _**AIR 2001 SC 3218**_ . This has been the position even in the case of an unemployed person. Though the respondent contended that the income has to be proved _M.A.C.A. No.2687 of 2012_ _-9-_ they did not virtually dispute the fact that the deceased Joyson was engaged as a casual worker in KSE Ltd, Koratty. Casual employment, as the very expression suggests, ensures only casual engagement and therefore monthly income cannot be taken in respect of such an employee merely based on a certificate, that too, when it was not legally brought on record. Even then, we are of the considered view that the Tribunal went wrong in taking the notional income of the deceased Joyson as Rs.2,250/-, and at any rate the notional income should have been taken as Rs.3,000/-. In the light of the discussions, as above, we are of the view that the compensation payable to the appellants has to be looked into based on the structured formula under the second schedule to the MV Act, taking into account the evidence on record that the deceased was between the age group of 20-25 years and then taking the monthly income of the deceased Joyson as Rs.3,000/-. Going by the structured _M.A.C.A. No.2687 of 2012_ _-10-_ formula when those twin factors are taken as above the compensation has to be Rs.6,48,000/-. But then, 1/3[rd] of the same has to be deducted towards the personal expenses to arrive at the actual compensation payable. True that going by the second schedule the appellants are also entitled to get compensation towards the funeral expenses and loss of estate in addition to the above mentioned amount. Though the claimants under Section 163A could also claim reimbursement of the medical bills in this case the appellants did not produce any such bills/vouchers. Therefore, the appellants are entitled only to get Rs.2,000/and Rs.2,500/- respectively under the heads, expenses for funeral and loss of estate in addition to Rs.4,32,000/-. In other words, the appellants are entitled to get a total amount of _**Rs.4,36,500/-**_ (Rupees Four lakhs thirty six thousand and five hundred only). Needless to say that the appellants are entitled to _M.A.C.A. No.2687 of 2012_ _-11-_ get interest at the same rate as has been fixed by the Tribunal viz., 7.5% from the date of the petition till realisation. The learned counsel for the third respondent submitted that already an amount of Rs.3,29,500/- with interest at that rate, as awarded by the Tribunal, was deposited. If that be true, the third respondent is liable only to pay the balance amount in terms of this judgment. The third respondent is directed to deposit the amount remaining to be paid within three months from the date of receipt of a copy of this judgment. The appeal is allowed as above. **Sd/C.T.RAVIKUMAR, JUDGE** Sd/- **MARY JOSEPH, JUDGE** vs