High Court of KeralaDivision Bench2011-04-06Appeal disposed; Tribunal’s award modified with...

Harihara Krishna and others v. K.K. Mackar and others

Case / Petition Number:MACA.No.923 of 2006

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.K. Basheer
P.Q. Barkath Ali
Judgment Date: 2011-04-06
Court Decision / Holding: The appeal is disposed of; the Tribunal’s award is modified. The claimants are entitled to Rs 1,20,000 for loss of dependency under the Second Schedule, plus Rs 2,000 for funeral expenses, Rs 2,500 for loss of estate, and Rs 5,000 for pain and suffering (total Rs 1,29,500). Interest is increased to 7.5% per annum from the date of petition for the amount already awarded and for the enhanced portion. The insurer (R4) is directed to deposit the amount before the Tribunal within two months from the copy of this judgment, along with proportionate costs.
Final Disposition: Appeal disposed; Tribunal’s award modified with enhanced compensation and higher interest; insurer directed to deposit within two months.

Parties to the Case

Appellants / Petitioners

Harihara Krishna
Parvathy
Mahadevan
Balu Narayanan
Hema Sanker

Respondents

K.K. Mackar
L. Judsan Vaz
Manager, Oriental Insurance Co. Ltd.
Manager, National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• P.V. Baby
• A.N. Santhosh

Counsels for Respondents

• M.A. George (for R4)
• Mathews Jacob, Senior Advocate (for R3)
• P. Jacob Mathew (for R3)

Case Synopsis & Summary

This Kerala High Court judgment arises from MACA No. 923 of 2006, challenging an award under OP(MV)1125/2000 of the Motor Accidents Claims Tribunal, Irinjalakuda, concerning a fatal motor vehicle accident on NH 47 near Kodakara on 29 April 2000. Padmanabha Iyer died while driving a car after colliding head-on with a stage carriage driven by the second respondent. The claimants (brothers, sister and sister's children of the deceased) sought compensation under Section 163A of the Motor Vehicles Act. The Tribunal awarded Rs. 69,500 for the loss to the claimants, with 6% interest and proportionate costs, holding the accident resulted from the deceased’s negligence. The appellants contended that, as a Section 163A claim, compensation should follow the Second Schedule to the MV Act, as supported by Jacob v. Mohammed. The High Court concurred, holding that for a 55-year-old at the time of death with annual income of Rs. 18,000, the Second Schedule yields Rs. 1,20,000 for loss of dependency after a 1/3 deduction, in addition to Rs. 2,000 funeral expenses, Rs. 2,500 loss of estate, and Rs. 5,000 pain and suffering. The court also found the 6% interest rate too low and directed interest at 7.5% from the petition date for both the original and enhanced compensation. The appeal was disposed of by modifying the Tribunal’s award, ordering the insurer (R4) to deposit the enhanced amount within two months, resulting in a total of Rs. 1,29,500 plus interest.

Provisions of Law Cited

Section 163A of the Motor Vehicles ActSecond Schedule to the Motor Vehicles Act

Legal Doctrines & Maxims

Application of the Second Schedule in Section 163A claims
Interest on awards under Motor Vehicles Act claims can be at 7.5% per annum from the petition date

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that Section 163A claims must be computed strictly according to the Second Schedule of the Motor Vehicles Act. They challenged the Tribunal’s reliance on a lower figure for loss of dependency, emphasizing the age of the deceased (55) and annual income (Rs. 18,000). They urged Rs 1,20,000 for loss of dependency plus Rs 2,000 funeral, Rs 2,500 loss of estate and Rs 5,000 pain and suffering, totaling Rs 1,29,500. They also urged interest at 7.5% per annum on both the existing and enhanced amounts.

Contentions of Respondents

The respondents admitted the accident but attributed negligence to the deceased (with the driver and owner contesting liability). The insurers argued the policies cover the vehicle involved and liability should be limited to the policy terms. The respondents did not dispute the application of Section 163A but defended the Tribunal’s award as appropriate in the circumstances; their main opposition was to the quantum of compensation and the rate of interest.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Jacob v. Mohammed	2004 (1) KLT 893	Positive	The court relies on this Division Bench decision to hold that compensation in Section 163A claims should be computed according to the Second Schedule; thus supporting the enhanced calculation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## THE HONOURABLE MR. JUSTICE A.K.BASHEER THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 6TH MARCH 2011 / 16TH CHAITHRA 1933 MACA.No. 923 of 2006() ---------------------OPMV.1125/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... ## APPELLANTS/PETITIONERS: 1. HARIHARA KRISHNA, S/O. SUBRAMANIA IYER, MUNDEMPILLY MADAM, THRIPUNITHURA P.O., KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 2. PARVATHY, D/O. SUBRAMANIA IYER, MUNDEMPILLY MADAM, THRIPUNITHURA P.O., KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 3. MAHADEVAN, S/O. SUBRAMANIA IYER, MUNDEMPILLY MADAM, THRIPUNITHURA P.O., KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 4. BALU NARAYANAN, S/O. LAKSHMI NARAYANAN MUNDEMPILLY MADAM, THRIPUNITHURA P.O., KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 5. HEMA SANKER, D/O. LAKSHMI NARAYANAN MUNDEMPILLY MADAM, THRIPUNITHURA P.O., KANAYANNOOR TALUK, ERNAKULAM DISTRICT. - BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH ## RESPONDENTS/RESPONDENTS 1. K.K. MACKAR, S/O. KUNJU MOHAMMED, KUZHIPILLY HOUSE, HOUSE NO.6/729, NELLIKUZHY P.O., KOTHAMANGALAM. 2. L. JUDSAN VAZ, S/O. LAWRANCE VAZ, MARY HOME, CO-OP. COLONY, VALPARAI. 3. MANAGER, ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, MUVATTUPUZHA. 4. MANAGER, NATIONAL INSURANCE CO.LTD., STATUTE JUNCTION, TRIPUNITHURA. - ADV. SRI.M.A.GEORGE FOR R4 - SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 6/4//2011, THE COURT ON THE SAME DAY PASSED THE ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.923 OF 2006** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of April, 2011 ## **JUDGMENT** ## Barkath Ali, J. Appellants are the claimants in OP(MV)1125/2000 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. They are the bothers, sister and late sister's children of deceased Padmanabha Iyer who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated October 25, 2005 awarding a compensation of Rs. 69,500/- for the loss caused to them on account of the death of deceased in that accident. 2. The accident occurred on April 29,2000 at about 5 p.m. at Kodakara on NH 47 while deceased Padmanabha Iyer was driving the car bearing Reg.No.KEF 6474. When he reached near Gandhi Nagar Junction at Kodakara, a stage carriage bearing Reg.No.KL-7/Y 1168 driven by the second respondent collided head on with the car of the deceased. The deceased sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. Alleging negligence against the driver of the stage carriage, the MACA.No.923/2006 2 claimants filed the OP under Sec.163 A of the Motor Vehicles Act claiming a compensation of Rs.5,00,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending stage carriage filed written statement before the Tribunal admitting the accident, but attributed negligence to the deceased. The third respondent, the insurer of the offending stage carriage filed a written statement admitting the policy. The fourth respondent, the insurer of the car which was driven by the deceased, filed a written statement admitting the policy of the car. 4. This O.P. was jointly tried along with other O.P.s filed by the other injured person who was also travelling the car and also the owner of the car for damages caused to the car and a common award was passed by the Tribunal. Pws 1 and 2 were examined and Exts.A1 to A11 were marked on the side of the claimants before the Tribunal. Exts.B1 was marked on the side of the contesting respondents. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the deceased and awarded a compensation of Rs.69,500/- with interest at the rate of 6% per annum from the date of MACA.No.923/2006 3 petition till realisation and proportionate cost against respondent No.4. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard counsel for the appellants/claimants and the counsel for the Insurance Company. 6. The Tribunal awarded a total compensation of Rs.69,500/- The break up of the compensation amount awarded is as under: |Loss of dependency|- Rs.60,500/-| |---|---| |Funeral expenses|- Rs. 2,000/-| |Loss of estate|- Rs. 2,500/-| |Pain and suffering|-Rs. 5,000/-| **7.** Counsel for the claimants argued that as this being a claim under Section 163 A of Motor Vehicles Act, the Tribunal should have awarded compensation as described in the Second Schedule to the Motor Vehicles Act. He cited the decision in **Jacob v. Mohammed** ( 2004 (1) KLT 893) wherein a Division Bench of this Court has held that in a claim under Section 163 (A) of Motor Vehicles Act, the court cannot calculate compensation in a different method other than that is provided under the Second Schedule to the Act. MACA.No.923/2006 4 8. We find force in the above contention. In the present case, the Tribunal took the monthly income of the deceased as Rs.1500/- and after deducting 1/3 for his personal expenses, took the balance amount of Rs.1,000/- as his monthly contribution to his family which comes to Rs.12,000/- per annum and adopted a multiplier of 5 as the deceased was aged 55 at the time of the accident and awarded Rs.60,000/towards loss of dependency. 9. Under the Second Schedule to the Motor Vehicles Act, in the case of persons aged 50 to 55 wherein the annual income comes to Rs.18,000/- the compensation fixed was Rs.1,80,000/-. After deducting 1/3 for his personal expenses, the balance amount of Rs.1,20,000/- has to be taken as compensation for loss of dependency. This being a claim under Section 163(A) of Motor Vehicles Act, claimants are entitled to the said compensation of Rs.1,20,000/towards loss of dependency. In addition to this, claimants are entitled to Rs.2,000/- towards funeral expenses, Rs.2,500/- towards loss of estate and Rs.5,000/- for pain and suffering endured as awarded by the Tribunal. MACA.No.923/2006 5 10. The Tribunal awarded interest only @ 6% per annum which appears to be very low. The claimants are entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. 11. In the result, the claimants are found entitled to an additional compensation of Rs.60,000/-. They are entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. They are also entitled to proportionate cost. The fourth 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 award of the Tribunal is modified to the above extent. The Appeal is disposed of as found above. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv. MACA.No.923/2006 6 MACA.No.923/2006 7