George K.M. and Margaret Antony and Minnu George (Minor) v. Lalan and The Branch Manager, United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 2ND DAY OF NOVEMBER 2017/ 11TH KARTHIKA, 1939** **MACA.No. 408 of 2013 () ------------------------** **AGAINST THE AWARD IN OPMV 2483/2009 of M.A.C.T.,ERNAKULAM DATED 31-10-2012** ## **APPELLANTS IN MACA/PETITIONERS IN OPMV:** **--------------------------------------------------** **1. GEORGE K.M., AGED 48 YEARS KARRIKASERRY HOUSE, NO.9/756, ST.SEBASTIAN CHAPPAL ROAD, PANDIKUDY, KOCHI.** **2. MARGARET ANTONY, AGED 46 YEARS KARRIKASERRY HOUSE, NO.9/756, ST.SEBASTIAN CHAPPAL ROAD, PANDIKUDY, KOCHI.** **3. MINNU GEORGE (MINOR), AGED 13 YEARS** **(D.O.B. - 10.4.96), REPRESENTED BY FATHER GEORGE K.M., RESIDING AT KARRIKASERRY HOUSE, NO.9/756, ST.SEBASTIAN CHAPPAL ROAD, PANDIKUDY, KOCHI.** ## **BY ADV. SRI.A.P.SUBHASH** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** ## **1. LALAN** **S/O. KRISHNANKUTTY, 11/446, KADEPARAMBIL HOUSE, SOUTH CHITTOOR, ERNAKULAM, KOCHI-682 011.** **2. THE BRANCH MANAGER** **UNITED INDIA INSURANCE CO. LTD., SHARANYA, GROUND FLOOR, HOSPITAL ROAD, ERNAKULAM-682 011.** ## **R2 BY ADV. SRI.T.V.AJAYAKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.408 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of November, 2017 ## **JUDGMENT** ## Abdul Rehim, J. Claimants in O.P.(MV)No.2483/2009 on the files of the Motor Accidents Claims Tribunal, Ernakulam are the appellants herein, challenging the award on the ground of insufficiency and inadequacy of the compensation allowed. The claim petition was filed with the averments that, son of appellants 1 and 2, who was the brother of the 3[rd] appellant, died in a motor vehicle accident which occurred on 9.9.2009. The person died was riding on a motor cycle and at the spot of the accident another motor cycle bearing Reg.No.PY-02/E-1901 ridden by another person named Sajith, collided with the motor bike on which the deceased was riding. Rider of the other motor cycle, Sajith, also died in the accident. The appellants filed the claim petition before the Tribunal under Section 163 A of the Motor Vehicles Act. In the claim petition it was alleged that the accident occurred due to the MACA No.408/2013 2 negligence on the part of the rider of motor cycle bearing Reg.No.PY 02/E 1901. The allegation of the appellants before the Tribunal was that the criminal case registered by the Police was referred only due to influence of the relatives of Sajith, who was riding the offending motor cycle. Respondents 1 and 2 before the Tribunal, who are made parties in this appeal, are the owner and insurer of the motor cycle on which the deceased in this case was riding. 2. The 2[nd] respondent insurance company filed written statement before the Tribunal admitting that, both the motor cycles were insured with the said company, as on the date of the accident. It was contended that the Police had filed charge sheet against the deceased in this case and therefore the appellants were not entitled to claim compensation. Further contention raised was that, the rider of motor cycle bearing Reg.No.PY 02/E-1901 was not negligent in causing the accident. Inter alia, it was contended that, the amount of compensation claimed is excessive. 3. Before the Tribunal the claimants have adduced documentary evidence of Exts.A1 to A10. The 1[st] appellant was MACA No.408/2013 3 examined as PW1. Ext.A1 is the copy of the FIR registered at Puduchery police station and Ext.A3 is the final report submitted in that case. Translated version of those documents produced would indicate that, the Police had implicated the riders of both the motor cycles as accused 1 and 2 in the FIR. In Ext.A3 final report, the Police after investigation of the case, had requested the Magistrate Court concerned to drop further actions on the basis that both the riders died in the accident. Conclusions in Ext.A3 final report is to the effect that riders of both the motor cycles drove their vehicles in a rash and negligent manner to make the head on collision. 4. Based on the evidence available on record the Tribunal had disposed of the claim by allowing a total amount of Rs.1,84,500/-. The Tribunal found that the appellants 2 and 3 are not the legal heirs of the deceased, in accordance with provisions contained in the Indian Succession Act and found that the I[st] appellant alone is entitled for the amount of compensation awarded. Before the Tribunal the 2[nd] respondent had advanced a contention that the deceased in the cae had contributed negligence in causing the accident and therefore the MACA No.408/2013 4 appellants are not entitled for compensation. But the Tribunal found that, in a claim petition filed under Section 163 A, the claimants need not plead and prove negligence. Referring to the decision of the hon'ble supreme court in **National Insurance Company v. Sinitha and Ors ( 2011 (4) KLT 821),** it was held by the Tribunal that a claim being 163A can be defeated only by pleading and proving wrongful act or negligence or default on the part of the deceased. It was held by the Tribunal that in the case on hand the 2[nd] respondent had failed to prove any one of the three ingredients to defeat the claim. Hence it was held that the 2[nd] respondent is liable to pay the amount of compensation awarded. 5. While computing the quantum of compensation the Tribunal found that the deceased was a student of B.Tech ( Mechanical) Engineering during the period from 2006-2009 at an Engineering College in Tamil Nadu. Considering the testimony of PW1, the Tribunal held that the deceased was only a student and was not an earning person. Therefore the income of the deceased was fixed as provided in Clause 6(a) of the second schedule of the Motor MACA No.408/2013 5 Vehicles Act, under Section 163 A. Accordingly, the annual income of the deceased for the purpose of computing loss of dependency was taken as Rs.15,000/-. The Tribunal had rejected the claim of the appellants to fix the amount at Rs.4,000/- per month, relying on the dictum laid by the hon'ble supreme court in **Aravindakumar Misra v.** **New India Assurance Co. Ltd. ( 2010 KHC 2729)** . After adopting the proper multiplier of 18 and after deducting 1/3 of the amount towards personal expenses, the dependency compensation was fixed at Rs.1,80,000/-. Apart from that a sum of Rs.2,000/- was awarded towards funeral expenses and another sum of Rs.2,500/- was awarded towards loss of estate. The appellant is assailing the award on the basis that the quantum of compensation granted by the Tribunal is too inadequate, insufficient and disproportionate. 6. Heard; Adv.A.P.Subhash, learned counsel appearing for the appellants and Adv.Sri.T.V.Ajaykumar, standing counsel for the 2[nd] respondent insurance company. 7. One of the main contention advanced by the appellants is that, the Tribunal ought to have awarded 'just compensation' taking MACA No.408/2013 6 into consideration of the fact that the deceased was a student of Engineering ( Mechanical) and he had bright prospects in future in which he could have earned a considerable income out of appropriate employment, had he been alive. It is contended in this context that; the Tribunal ought to have considered the principles settled through various precedents for awarding 'just compensation' even by converting the claim petition into one filed under Section 166 of the Motor Vehicles Act. In this regard learned counsel for the appellants had placed reliance on the decision of the hon'ble supreme court in **Ningamma v. United India Insurance Co.Ltd.[(2009) 13 SCC 710 = LAWS (SC) 2009-5128)** . The hon'ble apex court observed therein that, Section 166 of the Motor Vehicles Act deals with 'just compensation' and even if in the pleadings no specific claim was made under Section 166, in the considered opinion a party could not be deprived from getting just compensation, in case the claimant is able to make out a case under any provisions of law. The court is duty bound and entitled to award just compensation irrespective of the fact whether any plea in that behalf was raised by the claimant or not. But the court MACA No.408/2013 7 observed that, however, whether or not the claimants would be governed by the terms and conditions of the insurance company and whether or not the provisions of Section 147 would be applicable in the present case and also whether or not there was rash and negligent driving on the part of the deceased, are essentially matters of fact which was required to be considered and answered by the court. Concluding the judgment the hon'ble supreme court observed that, the high court while considering the appeal was required to consider the aforesaid issues even if it is found that the provisions of Section 163 A of the Motor Vehicles Act was not applicable to the facts and circumstances of the present case. Observing as mentioned above, the particular case was remanded by the hon'ble supreme court to the high court concerned for fresh disposal. 8. Counsel for the appellants pointed out that, following the observations contained in **Ningamma'** s case (supra), a Division Bench of this court in **United India Insurance Company Ltd. v. Usman Haji ( 2013 (1) KHC 347 = 2013 (1) KLJ 167)** had observed that the claim filed under Section 163 A need to be treated as one under Section MACA No.408/2013 8 166 of the Motor Vehicles Act and need to be disposed of for doing justice to the claimant. This court observed therein that though the petition was styled as one under Section 163 A, in fact, the sum and substance of the petition is a claim with plea of negligence against the driver. 9. Controverting the arguments as discussed above, learned standing counsel for the 2[nd] respondent insurance company contended that a conversion of the claim under Section 163 A to one under Section 166 of the Act or vice versa is not possible going by the settled precedents of the hon'ble supreme court which was followed by this court in other cases. Our attention was drawn by him to a decision of the hon'ble apex court in **Deepal Girishbhai Soni & Ors. v. United India Insurance Co. Ltd. ( 2004 (2) KLT 395 (SC) = 2004 (5) SCC** **385)** . In the said case, the question whether a proceedings under Section 163 A is a final proceedings and whether the claimant who had been granted compensation under Section 163 A is debarred from proceeding with any further claim on the basis of fault liability in terms of Section 166, was considered. After considering the scheme MACA No.408/2013 9 envisaged under Section 163 A, it was held that, the parliament intended to lay down a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation. The compensation determined and paid under Section 163 A of the Act is final and not an interim one. The dictum contained in s case **Deepal'** (supra ) was followed in another decision of the hon'ble apex court in **Oriental Insurance Co.Ltd. v. Dhanbai Kanji Gadhvi ( 2011 (1) KLT 617 (SC)]** . Following the principles in **Deepal'** s case (supra), it is reiterated by the hon'ble supreme court that, the remedy for payment of compensation both under Section 163 A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. A claimant must opt/elect to go either for a proceeding under Section 163 A or under Section 166 of the Act, but not under both. It is further pointed out that the dictum contained in **Dhanbai's** case **Deepal'** s case (supra) and (supra) was followed by this court in a decision in **United India Insurance Co. Ltd. v. Akbar Shihab (2012 (2) KLT 242)** , wherein it MACA No.408/2013 10 is observed that both the provisions are mutually exclusive and independent of each other, envisage two different situations. The conversion of a claim petition filed under Section 166 of the Act to one under Section 163 A suo motu by the Tribunal is incompetent nor is it possible for the Tribunal to award compensation in terms of Section 163 A of the Act when after evidence, it is satisfied that the claimants have to be divested of the compensation under Section 166 of the Act. The legislature has not intended any such procedure and adoption of such a course by the Tribunal could not be permissible. The same view has been taken by a learned Judge of this court in yet another decision in **National Insurance Co. Ltd. v. Jabbar ( 2007 (1) KLT 331)** . It is held that the point of time for the claimant to exercise option to confine under Section 163 A or Section 166, could be during the pendency of matter before the Tribunal, without affecting the rights of parties to a fair trial and within the frame work of the laws. Propriety would require that the election by the claimant as between the two different proceedings is to be made at or before the settlement of issues. If option was exercised atleast at that stage, the opposite party could be MACA No.408/2013 11 granted, if necessary a further opportunity to place further pleadings on record before the parties go to trial. 10. The precedents cited by both sides when applied to the facts of the case at hand, we are constrained to observe that, the appellants have opted to file the claim under Section 163 A. Probably, this may be for the reason that the Police after investigation of the case had submitted final report by citing the deceased in the case alone as accused. But however, the findings contained in the final report is to the effect that the accident occurred due to the rashness and negligence on the part of the riders of both the motor cycle. Even though in the claim petition it was pleaded that the accident was caused due to the negligence of the rider of the other motor cycle, the claimants have not adduced any proof to substantiate such a contention. On the other hand, the Police records produced would only prove otherwise. It is further pertinent to note that the appellants have chosen to implead only the owner and insurer of the motor cycle on which the deceased in the case was riding. Of course, it is admitted that the 2[nd] respondent company is the insurer of the other vehicle also. But the case which MACA No.408/2013 12 was pleaded and proved in evidence would only indicate that there was negligence on the part of the deceased himself. The situation being so, the appellants have made an open election/option to pursue the claim under Section 163 A. Having been agitated the claim under Section 163 A and obtained an award, the appellants cannot be permitted to argue that the appellate court should consider awarding of 'just compensation' by ignoring the structured formula as held by the hon'ble apex court in a case which is dealt with under Section 166. This court is not inclined to consider the request made by the counsel for the appellants to remand the case for permitting the appellants to make amendments in the claim petition in order to convert the claim into one under Section 166 of the Motor Vehicles Act. In that respect we are of the considered view that we will be doing injustice to the respondents by setting aside the award impugned without there being any legally valid reasons. 11. Learned counsel for the appellants had raised an alternate contention to refix the compensation under the head of loss of dependency by fixing the annual income of the deceased at MACA No.408/2013 13 Rs.40,000/-, under the second schedule. Such an argument is raised based on the contention that he being a student of the Engineering course can be considered as a person earning a fixed income, based on the better prospects in his life, had he been alive. But we take note of Clause 6(a) of the second schedule which specifically provides that with respect to a person who had no income prior to the accident, the notional income in the case of fatal accident need to be fixed at Rs.15,000/- per annum. Further in the note below to the second schedule, it is specifically provided that the amount of compensation so arrived at in the case of fatal accident claims shall be reduced by 1/3 in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. Under the above mentioned circumstances, we are not inclined to accept the contention that loss of dependency can be refixed by taking the annual income as Rs.40,000/-. 12. Lastly, learned counsel for the appellant had cited a very recent decision of the hon'ble supreme court in **National Insurance Company Ltd. v. Pranay Sethi and Ors.** rendered on 31.10.2017 MACA No.408/2013 14 ( not yet reported) in order to contend that, even in a case under Section 163 A compensation for loss of estate and funeral expenses can be awarded at the conventional rates as fixed by the apex court in the said decision. We notice that a constitutional Bench of the hon'ble supreme court while formulating the guidelines with respect to amounts to be awarded under non-pecuniary and conventional heads observed that, conventional sum has been provided in the second schedule of the Act, but the said schedule has been found to be defective as stated in **U.P.State Road Transport Corporation and Others v. Trilok Chandra and others [(1996 (4) SCC 362]** and in **Puttamma v. Narayana Reddy ( 2013 (15) SCC 45)** . The apex court observed in Puttamma's case (supra) that the second schedule which was enacted in the year 1994 has become redundant, irrational and unworkable due to the change in scenario including the present cost of living and current rate of inflation and increased life expectations. The apex court made reference to the general damages provided in the second schedule such as compensation for funeral expenses, loss of consortium, loss of estate and medical expenses. It was held that the conventional damage MACA No.408/2013 15 amount needs to be appositely determined. After discussing the earlier judgments in which the quantum of conventional damage amounts were fixed, the constitutional Bench had evolved conclusions fixing the quantum to be awarded under general damages ( conventional damages). It is held therein that reasonable amounts of conventional heads like loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. Taking note of the above said observations of the hon'ble supreme court in **Pranay Sethi** 's case (supra), we are inclined to refix the compensation awarded by the Tribunal under the heads of loss of estate and funeral expenses as Rs.15,000/- each. This will entitle the appellants for an enhancement of Rs.25,500/-, after deducting the total amount of Rs.4,500/- awarded by the Trial. 13. In the result, the appeal is allowed in part by enhancing the total compensation awarded by the Tribunal by a further sum of Rs.25,500/-. The said amount will carry interest at the rate same rate as ordered by the Tribunal from the date of the claim petition till realization. MACA No.408/2013 16 The second respondent insurance company shall make deposit of the said amount within a period of two months from the date of receipt of a copy of this judgment. **C.K.ABDUL REHIM, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv.