Chirutheri K. v. Raju and The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE A.K.BASHEER** **&** **THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI** **MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931** **MACA.No. 1975 of 2009()** **----------------------OPMV.1175/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** **....................** ## **APPELLANT(S): PETITIONER** **------------------------** **CHIRUTHERI K., AGED 59 YEARS, WIFE OF LATE MR.NARAYANAN, KOYATH HOUSE, P.O.MOODADI, KOZHIKODE DISTRICT.** **BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH** ## **RESPONDENT(S): RESPONDENTS** **---------------** **1. RAJU, SON OF BALAN, KAYALATTU KIZHAKKE KUNI HOUSE, KOLLAM, P.O.MOODADI, KOYILANDI, KOZHIKODE.** **2. THE NATIONAL INSURANCE CO. LTD., NOOR COMPLEX, ARAYADATHUPALAM, MAVOOR ROAD, KOZHIKODE.** **ADV. SMT.SARAH SALVY FOR R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1975 OF 2009** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of March, 2010 ## **JUDGMENT** ## Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.1175/04 of Motor Accidents Claims Tribunal, Kozhikode challenges the judgment and award of the Tribunal dated April 25, 2009 awarding a compensation of Rs. 1,22,000/- for the loss caused to her on account of the death of her only son in a motor accident. 2. The facts in brief are these : On January 26, 2004, deceased Sathyan was pillion riding on a motor cycle bearing Reg.No.KL 18/9334 ridden by the first respondent. Due to the rash and negligent riding of the offending motor cycle by the first respondent, the motor cycle hit on the divider on the road . Deceased Sathyan fell down and sustained serious injuries. He succumbed to the injuries sustained on January 28, 2004 while undergoing treatment in the hospital. According to the claimant, the accident occurred due to the rash and negligent driving of the offending motor cycle by first MACA.No.1975/09 Page numbers respondent. First respondent as the owner cum rider of the offending motor cycle and second respondent as its insurer are jointly and severally liable to pay compensation to the claimant, who is the mother, dependent and the only legal heir of deceased Sathyan, aged 59. The claimant claimed a compensation of Rs. 4 lakhs. 3. First respondent as the owner cum rider of the offending motor cycle filed a written statement admitting the accident, but contending that while he was trying to save a pedestrian, the deceased fell down and sustained injuries. Second respondent, the insurer of the offending motor cycle filed a written statement admitting the policy and further contending that the policy does not cover the risk of the pillion rider. 4. Exts.A1 to A8 were marked on the side of the claimant and Ext.B1 was marked on the side of the contesting second respondent. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 1,22,000/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent is not challenged in MACA.No.1975/09 Page numbers this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation ? 6. The Tribunal awarded a total compensation of Rs. 1,22,000/-. The break up of the award amount is as under : - Dependency Rs. 96,000/Pain and suffering Rs. 7,000/Love and affection Rs. 10,000/Medical expense Rs. 5,000/Funeral expense Rs. 2,500/Transportation Rs. 1,500/---------------Rs. 1,22,000/========== 7. The counsel for the appellant mainly argued that the claim petition was filed under Section 163 A, but the Tribunal proceeded on the basis that it is an application filed under Section 166 of the Act and that the multiplier adopted by the Tribunal for assessing the loss of dependency is very low and that under Second Schedule of Motor Vehicles Act, the multiplier for the age group of deceased has to be adopted. 8. We find force in the above contention. On going through the records of the Tribunal, it is seen that the petition was filed under MACA.No.1975/09 Page numbers Section 163 A of the Motor Vehicles Act. But the Tribunal has proceeded to assess the compensation under Section 166 of Motor Vehicles Act which is not correct. Therefore, the compensation has to be awarded as provided under Second Schedule to Motor Vehicles Act. 9. The Tribunal adopted the monthly income of the deceased as Rs. 2,000/- per month i.e. Rs. 24,000/- per annum and adopted a multiplier of 6 in the light of the fact that the claimant is aged 64 years. Counsel for the appellant would argue that the deceased was a driver and used to earn Rs. 3500/- per month. The claimant has produced the driving licence of the deceased, Ext.A1 before the Tribunal. That being so, in our view, as a driver he would have earned at least Rs.100/- per day. Therefore, we feel that the monthly income of the deceased can be reasonably fixed at Rs. 3000/- per month. After deducting Rs. 1000/per month towards his personal expenses, balance amount of Rs. 2000/per month can be taken as his monthly contribution to the claimant. As regards the multiplier, the Second Schedule to the Motor Vehicles Act provides a multiplier of 16 as the deceased was aged 31. 10. Counsel for the second respondent, Insurance Company would argue that even compensation claimed under Section 163 of MACA.No.1975/09 Page numbers Motor Vehicles Act, the multiplier that is suitable for the age of the parents or the deceased , whichever is higher has to be taken. There is no merit in the above contention. 11. The Apex Court has held in **Reshma Kumari and others v. Madan Mohan and another** ( JT 2009 (10) SC 90) that Section 163A of the 1988 Act does not speak of application of any multiplier and that the multiplier in terms of the Second Schedule requires to be applied only in case of disability in non fatal accident and that in the case of fatal accident, the amount specified in Second Schedule depending on the age and income of the deceased is required to be paid. In the light of the principles laid down in the above decision, in the present case, the multiplier that has to be applied taking into consideration the age of the deceased is 16. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 3,84,000/- Thus on this count, the claimant is entitled to an additional compensation of Rs. 2,88,000/- ( Rs. 3,84,000 - Rs. 96,000/-) 12. The counsel for the Insurance Company argued that under Section 163A of Motor Vehicles Act, as per Second Schedule, the MACA.No.1975/09 Page numbers claimant is entitled to only for Rs. 2,000/- towards Funeral expenses, Rs. 2500/- towards loss of estate and amount upto Rs. 15,000/- for medical expenses. There is some substance in the above contention. Therefore, in the present case, the claimant will be entitled to Rs. 2,000/- for funeral expenses, Rs. 2500/- for loss of estate and Rs. 15000/- for medical expenses instead of the compensation awarded by the Tribunal for pain and suffering etc. 13. The impugned award of the Tribunal is modified to the effect that the claimant is found entitled to a total compensation of Rs. 4,03,500/-. She is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The second respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The Appeal is disposed of as found above. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv. MACA.No.1975/09 Page numbers