C.S. Salim Kumar and T.N. Sathi v. Haneefa and The United India Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939 MACA.No. 1980 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 1953/2006 of M.A.C.T.,ERNAKULAM DATED 09-03-2011 APPELLANT(S)/PETITIONERS.: ------------------------------------ ## 1. C.S.SALIM KUMAR AGED 42 YEARS, S/O.LATE SREEDHARAN. ## 2. T.N.SATHI, AGED 34 YEARS, W/O.C.S.SALIM KUMAR BOTH RESIDING AT CHITTEZHATH HOUSE, KUMBALAM P.O., KUMBALAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADVS.SRI.ANIL S.RAJ SRI.G.ARUN GOPAN SMT.K.N.RAJANI SRI.J.VIVEK GEORGE RESPONDENT(S):RESPONDENTS ------------------------------------ ## 1. HANEEFA S/O.PAREETH, THACHAVALLATH HOUSE, THAIKKATTUKARA ALUVA P.O., PIN-680 101. ## 2. THE UNITED INDIA INSURANCE COMPANY LTD, ELOOR ROAD, KALAMASSERY,PIN-683 104. R2 BY ADV. SMT.RAJI T.BHASKAR R2 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.1980 OF 2011 ==========================** Dated this the 1[st ] day of August, 2017 ## **JUDGMENT** _Ravikumar, J._ This appeal is filed against the judgment and award dated 9.3.2011 in O.P.(MV).No.1953 of 2006 passed by the Motor Accidents Claims Tribunal, Ernakulam. The said claim petition was filed under section 163A of the Motor Vehicles Act, 1988 by the parents of the victim of a motor vehicle accident, a minor girl by name Krishnamol, aged seven years. The accident occurred when a car bearing Reg.No.KL-Y/8515 rushed into a procession, on 19.3.2006 near Kumbalam junction nearby Vyttila-Aroor bypass, at about 8 p.m. In the said incident, several others also got injured. Consequently O.P.(MV).No.1953 of 2006 was filed by the appellants herein seeking compensation for the death of Kumari Krishnamol. The said claim **M.A.C.A.1980/2011** 2 petition was jointly enquired into along with other claim petitions and a common award was passed. It is to be noted that except O.P.(MV). No.1953 of 2006 from which the captioned appeal arose, all the other claim petitions were filed under Section 166 of the M.V.Act. The petitioners claimed a total sum of Rs.1,89,500/-. As per the impugned award, the Tribunal granted a total compensation of Rs.54,500/-. It is seeking enhancement of the quantum of compensation on the ground that the Tribunal went wrong in assessing compensation based on the structured formula that this appeal has been filed. 2. We have heard the learned counsel for the appellants and the learned counsel for the second respondent. 3. It is submitted by both sides that owing to the absence of any dispute regarding the cause of the accident and the liability of the second respondent to indemnify the first respondent, the insured owner of the offending vehicle, the only question to be considered in this appeal is whether or not the appellants are entitled to get enhanced compensation. **M.A.C.A.1980/2011** 3 4. Evidently, the claim petition was filed under section 163A of the M.V.Act. Taking note of the fact that all the other claim petitions which were jointly enquired into along with O.P.(MV).No.1953 of 2006 were filed under section 166 of the M.V.Act, we have called for the records, to ascertain whether it was actually filed under section 163A or at any subsequent change, any application was filed to convert that petition as a petition under section 166 of the M.V.Act. On perusal of the records, it is found that no such application was filed and it was filed under section 163A of the M.V.Act. At this distance of time, there is absolutely no scope for converting the application into one under section 166 of the M.V Act. In the light of the decision of the Apex Court in **Oriental Insurance Co.Ltd v. Dhanbai Kanji Gadhvi [2011(11) SCC 513],** a claim petition under section 163A of the Act could not be converted into an application under section 166 M.V.Act, at the appellate stage. That was a case where a claim petition originally filed under section 163A was treated as an application filed under section 166 M.V.Act at the appellate **M.A.C.A.1980/2011** 4 stage by the High Court of Gujarat. The said decision was reversed by the Hon'ble Apex Court holding that in an application where the compensation was finally determined in terms of the provisions under section 163A of the M.V Act, the parties are precluded from proceeding further with the petition as one under section 166 of the M.V.Act. In the light of the aforesaid decision, we can consider only the question whether there occurred any error in the assessment of compensation in terms of the second schedule to the M.V.Act. There can be little doubt with respect to the position that in a claim petition filed under section 163A, compensation has to be determined strictly in terms of the structured formula under second schedule to the M.V. Act. For such quantification of the compensation based on the structured formula, twin factors are relevant viz., the age of the victim for the purpose of finding out the age group and the monthly income to find out the range of annual income from among the 13 annual income ranges given atop the second schedule. 5. In this case, the Tribunal took the annual income as **M.A.C.A.1980/2011** 5 Rs.15,000/- taking note of the fact that the child was aged only 7 years at the time of accidental death. Since the age was below 15, going by the second schedule, the annual income to be taken is Rs.15,000/-. At the same time, there is no corresponding figure of annual income range given in the schedule. But at the same time, a perusal of the ranges of annual income given atop the second schedule would reveal that when the annual income exceeds Rs.12,000/-, next figure available in the schedule is Rs.18,000/-. Therefore, for the the purpose of computing compensation, the annual income has to be taken as Rs.18,000/-. (See the decision in Kumari Sree Devi and others v. Managing Director, KSRTC, Tvm and others (2011 (3) KHC 484)). The corresponding figure with reference to the the age group and the range of the annual is Rs.360/- and obviously, such figures are given in the second schedule in thousands. Therefore, going by the schedule, the compensation payable is Rs.3,60,000/-. Going by the schedule, a reduction by 1/3 of the same has to be made towards the expenses which the victim would have incurred towards **M.A.C.A.1980/2011** 6 maintaining himself had he been alive. After effecting such deduction, the amount payable thereunder would be Rs.2,40,000/-. Instead of Rs.2,40,000/-, the Tribunal granted only an amount of Rs.1,50,000/-. Going by the second schedule, besides the said amount towards general damages, compensation of Rs.2,000/- towards funeral expenses, Rs.5,000/- towards loss of consortium, if beneficiary is the spouse and Rs.2,500/- towards loss of estate and medical expenses to a maximum of Rs.15,000/-, provided the claim is supported by bills/vouchers, are grantable. In this case, no bills are produced. Hence, the Tribunal has rightly declined to grant medical expenses. No amount is payable towards loss of consortium since the victim was a child. The Tribunal has granted Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate. Hence, the appellants are entitled only to an additional compensation of Rs.90,000/- (Rs.2,40,000-1,50,000) based on the re-assessment of compensation strictly made on the structured formula. Accordingly, it is granted. The said additional compensation will carry 8% interest **M.A.C.A.1980/2011** 7 from the date of the petition till realisation. The second respondent is directed to deposit the said amount along with interest thereon at the aforesaid rate within a period of one month from the date of receipt of a copy of this judgment. Appeal is disposed of. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.1980/2011** 8 **C.T. RAVIKUMAR, J.** **JUDGMENT** 9 ## **M.A.C.A.1980/2011** **September, 2010**