K. Jalaja and others v. The Managing Director, Kerala State Road Transport Corporation and Ahammedkutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938** ## **MACA.No. 1790 of 2011 ( )** ## **-------------------------AGAINST THE AWARD IN OPMV 563/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 02-04-2009** ## **APPELLANT(S)/PETITIONERS:** **------------** **1. K.JALAJA , W/O. LATE SWARNAKUMAR** ## **2. K. LAKSHMI, W/O. LATE KASU** **3. ASWIN S. (MINOR), S/O. LATE SWARNAKUMAR (MINOR 3RD APPELLANT REPRESENTED BY HIS GUARDIAN MOTHER THE 1ST APPELLANT HEREIN)** **ALL ARE RESIDING AT PUTHANVEEDU, NEAR RAMASSERY BUS STOP, ELAPPULLY P.O., PALAKKAD 678 622** **BY ADVS.SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP SRI.MATHEWS RAJU** ## **RESPONDENT(S)/RESPONDENTS:** - **--------------** **1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM 695 001** ## **2. AHAMMEDKUTTY, S/O. MOHAMMED,** ## **RESIDING AT ATHIMANNIL VEEDU, ATHANIKKAL, KARUMBRAM P.O., MANJERI 676 123.** **R1 BY ADV. SRI.P.C.CHACKO(B/O,NO MEMO) R BY SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CO** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1790 of 2011** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of October, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** This appeal is preferred by the claimants on being aggrieved by and dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Palakkad in O.P.(M.V.) 563/2004. The said claim petition was filed by the appellants 1 & 2 herein who are respectively the wife and mother of one Swarnakumar who died in a motor vehicle accident occurred on 5.10.2003. On that day he was travelling on a motorcycle bearing registration No.TN 41/L 5448 on his pillion when it was knocked down by the bus bearing registration No.KL 15 1897 driven by the 2[nd] respondent. The claim petition was filed under Section 163A of the M.V.Act seeking compensation for the death of the aforesaid Swarnakumar. The Tribunal as per the impugned judgment and award granted a total compensation of Rs.3,35,900/- along with interest at the rate of 7.5% per annum from the date of M.A.C.A.No.1790 of 2011 2 petition till realisation. As noticed hereinbefore it is seeking enhancement of the quantum of compensation that this appeal has been preferred. 2. We have heard Sri.T.C. Suresh Menon, learned counsel for the appellants and Sri.P.C. Chacko, learned counsel appearing for the first respondent. Since the vicarious liability of the first respondent rather, the liability to compensate the claimants/appellants is not disputed by the first respondent we do not think it necessary to issue notice to the 2[nd] respondent - the driver of the offending bus. Therefore, issuance of notice to the 2[nd] respondent is dispensed with. 3. Having heard the learned counsel on both sides and perusing the impugned judgment and taking note of the nature of the contentions, we are of the view that this appeal can be disposed of at the admission stage itself. 4. Admittedly the claim petition from which the captioned appeal arose, was filed under Section 163A of the M.V.Act. The main grievance of the appellants is that ignoring the fact that the application was filed under M.A.C.A.No.1790 of 2011 3 Section 163A and therefore the compensation ought to have been assessed in terms of the 2[nd] schedule to the M.V.Act the Tribunal assessed the compensation by following the multiplier multiplicand method. In the said circumstances the learned counsel for the appellants contended that a bare perusal of the 2[nd] schedule to the M.V.Act would reveal that the appellants are entitled to get more amount as compensation than Rs.3,35,900/- if it is assessed strictly in accordance with the 2[nd] schedule to the M.V.Act. The learned counsel appearing for the first respondent also admitted the fact that the Tribunal erred in following the multiplier - multiplicand method for assessing the compensation in a claim petition moved under section 163A of the M.V.Act. It is well settled that in an application moved under Section 163 A of the M.V.Act compensation has to be assessed strictly adhering to the structured formula under the 2[nd] schedule to the M.V.Act and such assessment cannot be made following multiplier multiplicand method. In such circumstances when the accident, the cause of the accident as the negligence on the M.A.C.A.No.1790 of 2011 4 part of the second respondent are not disputed as also the liability to compensate the appellants are not disputed we are of the considered view that there is no justification or reason for not applying the structured formula under the second schedule to the M.V.Act for assessing and granting compensation to the appellant. 5. Before making assessment of compensation in accordance with law, as mentioned, we are of the view that another question has to be considered in this case as the claim petition was originally moved only by appellants 1 & 2 and now, Aswin S. who is the posthumous child of the deceased and still a minor, was arrayed as the third appellant. At the time of death of Swarnakumar for whose death the application for compensation was made, Aswin S. was in the womb of the first appellant. No application for seeking impleadment was filed by the said appellant to get himself impleaded as third appellant or as a party to the appeal, through his mother and next friend, the first appellant. The facts are not in dispute. Admittedly there is no dispute with respect to the paternity of Aswin S. The M.A.C.A.No.1790 of 2011 5 second appellant who is the mother of deceased Swarnakumar would admit the fact he is the son of the deceased Swarankumar born through the first appellant who is the legally wedded wife of the deceased. The learned counsel for the appellants submitted that in terms of Section 20 of the Hindu Succession Act 1956, a child in the womb is also entitled to inherit the estate of the deceased father. To buttress the said contention the learned counsel relied on an unreported decision of a Single Bench decision of the High Court of Rajastan reported in **Rama Ram v. Smt.Narbada** in S.B. Civil Misc. Appeal No.841/2003 dated 9.8.2016. On the other hand the learned counsel appearing for the first respondent drew our attention to a decision of this court in **Balakrishna Kurup v. State of Kerala [1976 KLT 421]** carrying, virtually a finding to the effect that except for limited purposes of law has not reckoned an unborn child as the same in all respects as a child born. For certain purposes the existence of a child en ventre sa mere has been recognised in law. Under the Hindu law the right of a child born subsequent to 6 M.A.C.A.No.1790 of 2011 a partition to reopen the partition under certain circumstances is recognised. So is the case with the right to have a share set apart even when the child is in the womb. Ultimately, it was observed:- “one has yet to see a decided case where an unborn child has been treated as having a legal personality for all purposes.” 6. We do not think that in the light of the set of facts obtained in this case the decisions cited by the learned counsel on both sides got to be gone into, in the light of the said decisions. In this case the accident in which Swarnakumar lost his life occurred on 5.10.2003. In the following year viz. in 2004 the claim petition was filed by the widow and mother of the deceased. Indisputably Aswin S. born during the pendency of the claim petition. The claim petition was disposed of as per judgment dated 2.4.2009. It is admitted by the learned counsel appearing for the appellants that despite the birth of Aswin S. during the pendency of the claim petition no application for impleadment of Aswin as a party to the claim petition was moved. Evidently, such a petition was moved only after the M.A.C.A.No.1790 of 2011 7 passing of the judgment for the purpose of apportionment of the compensation awarded. That application was rejected as per order dated 3.1.2011. Evidently such an application (an unnumbered I.A.) was moved under Section 152 of the Code of Civil Procedure before the Tribunal. The Tribunal dismissed the application as per order dated 3.1.2011 holding that the power under Section 152 CPC could not be invoked in the circumstances as the correction sought to be made was not clerical or arithmetical mistake or an accidental slip or omission as contemplated under Section 152 CPC. In fact, in the light of the decision in **Balakrishna Kurup** 's case it is evident that except for certain purposes law did not recognise an unborn child as the same in all respects as child born. In respect of an application moved for compensation for the death of a person who sustained injuries in an accident, under the provisions of the M.V. Act the question of entitlement virtually depends upon the question of dependency. Certainly, in the case of legal representatives, though they can move applications under Section 166 of the M.V. Act M.A.C.A.No.1790 of 2011 8 and also entitled to get compensation, in appropriate cases, for lose of estate, there can be no question of granting of dependency to such persons. Strictly, speaking in such claim petitions that question is to be addressed by taking into account the question who were all dependent on the earnings at the time of his death. It is nothing but the state of being dependent for support. But, it is to be noted that going by Section 163A of the M.V.Act, the compensation shall be payable, in the case of death or permanent disablement arising out of the use of the motor vehicle, as indicated in the second schedule, to the legal heirs or the victim, as the case may be. But viewing in another angle, it can be said that but for the untimely death of the deceased Swarnakumar the child who was in the womb at the time of his death, on his birth would have enjoyed the benefits of the contribution which Swarnakumar would have made to maintain the family. In such circumstances, when there is absolutely no dispute regarding the paternity and also among the actual claimants who moved the claim petition we do not think it necessary to take a hair-splitting analysis M.A.C.A.No.1790 of 2011 9 on that issue any further. Taking note of the fact that the provisions under the M.V. Act for granting compensation for the death under Section 163A is a social security provision instead of going into the technicalities we are of the view that it is only proper in the interest of justice to grant compensation to Aswin S. who is indisputably the child in the offspring of deceased Swarnakumar and K. Jalaja the appellant considering the fact the actual claimants have unconditionally agreed to share their allotment with him. In such circumstances we are inclined to record his impleadment as a party to this appeal in the fitness of the age. As noticed hereinbefore, we are of the view that technicalities shall not stand in the way of the child getting the benefits of compensation granted for the death of his own father when those who are awardees are prepared to part with their shares for the purpose of equitable distribution of the same among them. In such circumstances for all purposes we are considering Aswin S. as the third appellant who is entitled to get compensation for the death of Swarnakumar and proceed to consider the appeal, M.A.C.A.No.1790 of 2011 10 accordingly. 7. We have already found that the Tribunal went wrong in assessing the compensation by following the multiplier - multiplicand method disregarding the fact that the application was moved under Section 163A of the M.V.Act. The twin factors to be taken into consideration for the purpose of assessing compensation in a claim petition under Section 163A of the M.V.Act are the age group and also the range of annual income. The Tribunal has taken the monthly income of the deceased as Rs.2,400/- and therefore the annual income of the deceased was is in excess Rs.24,000/- but below the next figure of the annual income given in the schedule viz. Rs.36,000/-. In such circumstances in the light of the decision of a Division Bench of this court in **National Insurance Company Ltd. v. P.C. Chacko [2011 (3) KLT 693]** the annual income has to be taken as Rs.36,000/- for calculation purpose. Since the appellant was aged 33 years at the time of death the age group has to be the one given as above 32 years but not exceeding 35 years. Going by he structured formula taking M.A.C.A.No.1790 of 2011 11 into account the aforesaid twin relevant factors the amount of compensation given in rupees that too, in thousands has to be found out and in this case, the amount thus arrived is Rs.5,76,000/-. Going by the note under the schedule 1/3[rd] of the same has to be deducted to find out the amount of compensation payable in the case of death. After deducting 1/3[rd] from Rs.5,76,000/- the appellants are entitled to Rs.3,84,000/- as compensation for death. In addition to that going by the general damages in terms of Note III thereunder the appellants are entitled to get Rs.2,000/towards funeral expenses, Rs.5,000/- towards loss of consortium (to which the first appellant alone is entitled) and Rs.2,500/- towards loss of estate. Since no bills or vouchers are produced the appellants are not entitled to get any compensation towards medical expenses. In short, the appellants are entitled to get an amount of Rs.3,93,500/(Rupees three lakhs ninety three thousand five hundred only) as compensation instead of the awarded amount of Rs.3,35,900/-. In terms of Note 3 under the schedule the first appellant alone is entitled to get Rs.5,000/- and the M.A.C.A.No.1790 of 2011 12 balance amount alone is available for apportionment among all the other appellants. The learned counsel for the appellants submitted that though going by the impugned judgment the second appellant is entitled to get 75% of the amount of compensation and the first appellant is entitled only to 25% of compensation, taking note of the subsequent developments i.e. the birth of the grandson the second appellant is agreeable to part with such share and agreeable to take only 25% of the compensation awardable and awarded, to make it available for apportionment between her daughter-in-law and grandson, who are appellants 1 and 3. The factum of the said consent which is evident from the ground taken in the appeal itself which is nothing but the rest gesture of motherhood is acknowledged and appreciated and in such circumstances, in the interest of justice, the amount available to be apportioned is ordered to be apportioned in between appellants 1 to 3 in the ratio 50:25:25. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The first respondent M.A.C.A.No.1790 of 2011 13 K.S.R.T.C. is directed to deposit the said amount along with interest within a period of four months from the date of receipt of a copy of this judgment. Needless to say that if the amount already awarded by the Tribunal was already deposited they shall deposit only the balance amount of additional compensation along with the interest thereon. The appeal is filed with a petition to condone delay of 830 days. While condoning the delay, this court by its order dated 16.8.2016 in C.M.Appl.No.2679/2011 made it clear that in case additional compensation is granted, the appellants will not be entitled to get interest for 830 days. We confirm the said order and it is held that for the above said period, no interest is liable to be paid to the appellants. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/