Harish Balachandran Harish Bhavan v Rajappan Pillai, Jamuna Rani & Reliance General Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 14TH DAY OF AUGUST 2017/23RD SRAVANA, 1939 MACA.No. 3108 of 2015 () ------------------------AGAINST THE AWARD IN O.P(M.V)NO.590/2010 of M.A.C.T., PALA DATED 30-06-2014 ## APPELLANT/PETITIONER: --------------------------- HARISH BALACHANDRAN HARISH BHAVAN, VAYALAPARAMBU BHAGOM, ERUMELY. BY ADV. SRI.P.C.HARIDAS ## RESPONDENTS/RESPONDENTS: ---------------------------------- ## 1. RAJAPPAN PILLAI PANTHAPLACKAL HOUSE, PANACHEPPALLY, KOOVAPPALLY P.O.-686518. ## 2. JAMUNA RANI PATHAPLACKAL HOUSE, PANACHEPPALLY, KOOVAPPALLY P.O.-686518. ## 3. RELIANCE GENERAL INSURANCE CO.LTD. ELIZABETH ALEXANDER MEMORIAL BUILDINGS, MARINE DRIVE, COCHIN-682031 REPRESENTED BY BR.MANAGER. R3 BY ADV. SRI.K.B.RAMANAND R1-R2 BY ADV. SRI.MATHEWS K.PHILIP R1-R2 BY ADV. SMT.MINISHA K DAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-08-2017, ALONG WITH M.A.C.A.NO.1156 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** ------------------------------------------------ M.A.C.A.Nos.3108 of 2015 &.1156 of 2016 -----------------------------------------------Dated 14[th] August, 2017 ## **JUDGMENT** ## **Ravikumar, J.** The captioned appeals arise from a common award passed by the Motor Accidents Claims Tribunal, Pala in O.P.(M.V)Nos. 41 & 590 of 2010. They germane from the same occurrence. The former appeal is preferred against the award in O.P.(M.V)No.590 of 2010 and the latter appeal is preferred against the award in O.P.(M.V)No.41 of 2010. Both the claim petitions were jointly enquired into and a common award was passed, as noticed hereinbefore. Hence, these matters were taken up for consideration jointly and are being disposed of by this common judgment. 2. M.A.C.A.No.3108 of 2015 arises from O.P.(M.V)No.590 of 2010. As per the common award, the said claim petition was dismissed on the ground that the appellant/petitioner is the tort-feasor. In other words, it was dismissed based on the finding that the accident in question from which the said claim petition arose occurred due to the negligence on the part of the claimant therein viz., who is the second respondent in O.P.(M.V)No.41 of 2010. Evidently, O.P.(M.V.)No.590 of M.A.C.A.Nos.3108/2015 & 1156/2016 2 2010 was filed by the appellant in M.A.C.A.No.3108 of 2015 who was the driver of one of the vehicles involved in the accident, that occurred on 28.8.2009 at 4.30 p.m., originally under Section 166 of the Motor Vehicles Act. Subsequently, on an application, it was converted into a claim petition under Section 163-A of the Motor Vehicles Act. Admittedly, in the said claim petition it was averred that he was earning ₹5,000/- per month. It is also to be noted that he had let in evidence in tune with the said averment. There can be little doubt with respect to the position that when the annual income of a person exceeds ₹40,000/- he cannot maintain an application under Section 163-A of the Motor Vehicles Act. In **Deepal Girishbhai Soni** v. **United India Insurance Co. Ltd. (2004 (2) KLT 395)** the Hon'ble Apex Court held that proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income was up to 40,000/- could take the benefit thereof. When the appellant-₹ claimant himself claimed an amount of 5,000/- as his monthly income₹ and let in evidence in that regard, a claim petition under Section 163-A of the Motor Vehicles Act could not be maintained. It is evident that even going by his own application, his annual income exceeded ₹40,000/-. In such circumstances, on that ground the said claim petition could not have been maintained. In this context, it is also relevant to refer to the decision of a Division Bench of this Court in M.A.C.A.Nos.3108/2015 & 1156/2016 3 ## **Janardhanan** v. **Kunjiraman (2016 (2) KLT 764).** Going by the said decision, it was never open for anybody having a higher income, to have it scaled down or limited to 40,000/- for the purpose of bringing₹ it within the purview of Section 163-A. In the said circumstances, the award in O.P.(M.V)No.590 of 2010 dismissing the said claim petition is confirmed. 3. We will now proceed to consider the latter appeal arising from O.P.(M.V)No.41 of 2010. The petitioners are the parents and sister of one Rakesh Raj who died in a motor vehicle accident. On 28.8.2009 at about 4.30 p.m. he was riding his motorcycle bearing Reg.No.KL34/6745 through Erumely-Kanjirappally public road. When the motorcycle reached Koovappally, another motorcycle bearing Reg.No.KL-02/X-3442 ridden by the second respondent viz., the appellant in M.A.C.A.No.3108 of 2015, collided with it. Consequently, the deceased sustained injuries and he was taken to Medical College Hospital, Kottayam. While undergoing treatment, he died at 1.45 a.m. on 29.8.2009. It is in the said circumstances that the aforesaid claim petition was filed under Section 166 of the Motor Vehicles Act. They claimed a compensation of 5,00,000/-. As per the impugned award,₹ the Tribunal granted an amount of 3,30,000/- as compensation with₹ interest at the rate of 7.5% per annum from the date of the petition till realisation. It is seeking enhancement of the said quantum of M.A.C.A.Nos.3108/2015 & 1156/2016 4 compensation that the latter appeal has been preferred. 4. We have heard the learned counsel for the appellants and also the learned counsel appearing for the third respondent. 5. As per order dated 1.6.2016, while condoning the delay in filing the appeal this Court dispensed with notice to respondents 1 and 2 taking note of the absence of dispute regarding the liability to indemnify the insured owner of the vehicle bearing Reg.No.KL-02/X3442. In such circumstances, the only question to be decided in this appeal is whether or not the appellants are entitled to get enhanced compensation. The learned counsel appearing for the appellants submitted that the annual income fixed by the Tribunal is on the lower side. The annual income was fixed by the Tribunal as 30,000/-. It is₹ too inadequate and it is liable to be enhanced, it is contended. The learned counsel appearing for the third respondent submitted that the Tribunal cannot be said to have committed any error in fixing the monthly income notionally especially, taking note of the fact that going by the very averments, it is evident that he was then a non-earning person. Paragraph 17 of the impugned award would show that going by the averments in the claim petition, the deceased was aged 20 years and was a graduate in Commerce. He has also passed an examination conducted by the Institute of Chartered Accountants India. But, no evidence whatsoever was let in to establish his occupation and income. M.A.C.A.Nos.3108/2015 & 1156/2016 5 Therefore, at the best it could be said that he was a qualified youth and but for the accidental death he would have had bright prospects in life. Due to the tortuous action of the second respondent Rakesh Raj lost his life. From the pleadings and records there is nothing on evidence to indicate that he was an earning person. The fact that he passed the examination conducted by the Institute of Chartered Accountants, India itself would reveal that he was prepared to pursue with his studies after becoming a graduate in Commerce. It is not the case of the appellants that he became a Chartered Accountant by passing the said examination. Evidently, their case is that he got admitted to that course and not that he became a Chartered Accountant. In such circumstances, the Tribunal cannot be said to have committed an error in treating him as a student and fixing the annual income notionally. The Tribunal fixed his notional annual income as 30,000/-. Therefore,₹ the question is whether the fixation of annual income as 30,000/-₹ invites any interference. In the light of the decision of the Hon'ble Apex Court in _**R.K.Malik** v._ _**Kiran Pal ((2009) 14 SCC 1)**_ , in the case of a student, the fixation of annual income as 30,000/- cannot be said to₹ be on the lower side warranting an interference. However, going by the very same decision, in the case of a brilliant student an addition to the income reckoning the future prospects is permissible. The facts expatiated above would reveal that the deceased was a brilliant M.A.C.A.Nos.3108/2015 & 1156/2016 6 student. But for the accidental death he would have had bright prospects in life in the circumstances explained hereinbefore. In such circumstances, we are of the view that 50% of the annual income have to be added to the income fixed reckoning his future prospects. The multiplier was rightly adopted by the Tribunal reckoning the age of the deceased. Since the deceased was a bachelor, 50% of his income was rightly deducted towards his personal and living expenses. In short, a re-assessment of the compensation payable for loss of dependency has to be made only by substituting the re-fixed annual income. On such re-assessment, the amount payable is 4,05,000/- (45000x18x1/2).₹ The Tribunal had already granted an amount of 2,70,000/- under that₹ head. Hence, the appellants are entitled to get 1,35,000/- additionally₹ under that head. 6. We will now proceed to consider whether the appellants are entitled to get enhancement of compensation under any other head. Towards loss of love and affection, the Tribunal granted only an amount of 10,000/-. As noticed hereinbefore, the petitioners before the₹ Tribunal are the parents and sister of the deceased. Taking into account the relation between the deceased and the claimants and also the fact that they lost his company when he was aged only 20 years we are of the view that the first and second appellants who are the parents of the deceased are entitled to get 40,000/- each under that head and₹ M.A.C.A.Nos.3108/2015 & 1156/2016 7 the third appellant, the only sister of the deceased is entitled to get ₹20,000/- thereunder. The Tribunal has already granted an amount of ₹10,000/-. The amount already granted under the said head has to be adjusted from the amount granted to the parents. In other words, an amount of 35,000/- each is granted to appellants 1 and 2 and an₹ amount of 20,000/- is granted to the third appellant under that head.₹ Towards loss of estate only an amount of 5,000/- was granted by the₹ Tribunal. We are inclined to grant an amount of 5,000/- more under₹ that head. For pain and suffering the Tribunal has granted an amount of 10,000/- as compensation. Obviously, after sustaining the injuries₹ in the accident that occurred on 28.8.2009 Rakesh Raj was immediately admitted in a hospital and it was while undergoing treatment there that he died on 29.8.2009 at about 1.45 a.m. It is thus obvious that he had to suffer excruciating pain almost for a day. Hence, we are granting an amount of 5,000/- additionally towards pain and suffering. Towards₹ treatment expenses no amount was granted as against a claim of ₹2,000/-. The fact is that the deceased Rakesh Raj was taken to the hospital and he died while undergoing treatment there. Hence, we are inclined to grant the amount claimed viz., 2,000/-, even in the absence₹ of medical bills. Towards damage to clothing no amount was granted by the Tribunal. There cannot be any doubt with respect to the position that the dresses worn by him at the time of accident must have been M.A.C.A.Nos.3108/2015 & 1156/2016 8 spoiled. In such circumstances, we are inclined to grant an amount of ₹1,000/towards damage to clothing. In the light of the assessment/re-assessment made by us the appellants are entitled to get a total additional compensation of 2,38,000/-. The said additional₹ compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation. However, it is made clear that the appellants are not entitled to get interest for a period of 575 days going by the order dated 1.6.2016 in C.M.Appln.No.1388 of 2016 passed by this Court while condoning the delay in filing this appeal. In view of the absence of any dispute regarding the liability of the third respondent to indemnify the second respondent, the third respondent shall deposit the additional compensation along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. In the result, M.A.C.A.No.3108 of 2015 is dismissed and M.A.C.A.No.1156 of 2016 is disposed of, as above. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANIL K.NARENDRAN Judge** TKS