Kala @ Kamakshy v. S. Subbiah; S.P. Alagappa; The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** **M.A.C.A.No.728 of 2010** **AGAINST THE AWARD IN OP(MV).914/2003 OF M.A.C.T., PALAKKAD DATED 08-05-2008.** ## **APPELLANT/PETITIONER:** **KALA @ KAMAKSHY, W/O.RAJA, RESIDING AT NO.12, VEERAPPAPILLAI COMPOUND, PARIPOORANI STREET, KARAKUDI.P.O, SIVAGANGAI DISTRICT, TAMILNADU.** **BY ADVS. SRI.A.R.NIMOD SRI.C.A.ANOOP SRI.JIBU P THOMAS SRI.K.SURESH KUMAR SRI.P.S.APPU** ## **RESPONDENTS/RESPONDENTS:** **1 S.SUBBIAH, S/O.SUBRAMANIYAN, PROPRIETOR, M/S. SRI. AYYAPPA COTTAGE INDUSTRIES, VELLIAMMAL LAYOUT, UTHUKAD ROAD, POLLACHI, TAMILNADU. 2 S.P. ALAGAPPA S/O. SUBRAMANIYAN, RESIDING AT 6, VELLIAMMAL LAYOUT, POLLACHI, TAMILNADU. 3 THE NEW INDIA ASSURANCE COMPANY LIMITED, 5 RAJA MILL ROAD, POLLACHI, TAMILNADU. R3 BY ADVS. SMT.M.MEENA JOHN SRI.VIJU THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.01.2019, ALONG WITH MACA.1165/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.728 & - 2 - 1165 of 2010** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** ## **M.A.C.A.No.1165 of 2010** **AGAINST THE AWARD IN OP(MV).906/2003 OF M.A.C.T., PALAKKAD DATED 08-05-2008** ## **APPELLANT/PETITIONER:** **KALA @ KAMAKSHY, W/O.RAJA, RESIDING AT NO.12, VEERAPPAPILLAI COMPOUND, PARIPOORANI STREET, KARAKUDI PO, SIVAGANGAI DISTRICT, TAMIL NADU.** **BY ADVS. SRI.A.R.NIMOD SRI.C.A.ANOOP SRI.JIBU P THOMAS SRI.P.S.APPU SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS:** **1 S.SUBBIAH, S/O.SUBRAMANIYAN, PROPRIETOR, M/S.SRI.AYYAPPA COTTAGE INDUSTRIES, VELLAIAMMAL LAYOUT, UTHUKAD ROAD, POLLACHI, TAMIL NADU.** - **2 S.P.ALAGAPPA, S/O SUBRAMANIYAN, RESIDING AT 6, VELLIAMMAL LAYOUT, POLLACHI, TAMILNADU.** - **3 THE NEW INDIA ASSURANCE COMPANY LIMITED, 5, RAJA MILL ROAD, POLLACHI, TAMIL NADU.** **R3 BY ADV. SMT.T.C.SOWMIAVATHY.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.01.2019, ALONG WITH MACA.728/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.728 & - 3 - 1165 of 2010** ## **JUDGMENT** ## **[ MACA 728/2010, MACA.1165/2010 ]** **Two appeals by the very same appellant who was involved in an accident; in which the appellant herself suffered injuries; but turned fatal for her daughter. A number of claim petitions were filed before the Tribunal by various persons, including the appellant being the claimant in two such claim petitions. The accident occurred while the claimant was travelling in a car along with her daughter, who died in the accident. The car dashed against a tree and the passengers suffered grievous injuries. The Tribunal found negligence on the car driver and the vehicle was covered by a comprehensive policy. The appeals survive only insofar as enhancement claim of the claimants.** **2. The minor child, who was killed in the accident, was aged 7 years. The accident occurred on 14.07.2002. The net annual income of the minor child was found to be Rs.15,000/- as per the structured formula of the Second Schedule of Section 163A of the Motor Vehicles Act, 1988 [for brevity "MV Act"]. 1/3[rd] was deducted for personal expenses and multiplier of 15 was applied. The learned Counsel for the appellant-claimant has a contention** **MACA.Nos.728 & - 4 - 1165 of 2010** **with respect to the multiplier to be applied as per the Second Schedule as also the annual income to be adopted in the case of a minor having less than 15 years age. The said contentions are anchored upon** _**Reshma Kumari v**_ **.** _**Madan Mohan**_ **[** _**2013 (2) KLT 304 (SC)**_ **] and** _**Kishan Gopal & Another v. Lala & Others [(2014) 1 SCC 244].**_ **3. In** _**Reshma Kumari**_ **, a three Judge Bench in a reference, in the operative portion of the decision considered the aspect of compensation to be awarded where the age of the deceased is upto 15 years. It was held that the same should be irrespective of the application under Section 166 or Section 163A. As to the multiplier to be applied, it was specifically noticed that the multiplier of 15 has to be applied for assessment as indicated in the Second Schedule, subject to correction as pointed out in column (6) of the table in** _**Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr.**_ **[(2009) 6 SCC 121].** _**Sarla Verma**_ **is also pointed out to contend that the defects in the Schedule were noticed and as per the quantum of compensation to be awarded, the Hon'ble Supreme Court had corrected the multiplier and made it 20 from the 15 specified in the Second Schedule. With respect to the income aspect, though the Second Schedule provided an** **MACA.Nos.728 & - 5 - 1165 of 2010** **annual income of Rs.15,000/-, notionally for minors aged below 15 years,** _**Kishan Gopal**_ **fixes it at Rs.30,000/-, is the contention.** **4. After reading** _**Reshma Kumari**_ **and** _**Kishan Gopal,**_ **this Court is of the opinion that the multiplier in one and income from the other cannot be adopted.** _**Reshma Kumari**_ **though noticed corrections made to the multiplier, adopted the annual income as per the Second Schedule, being Rs.15,000/-. The direction was insofar as the total quantum of compensation awarded being computed on the multiplier of 20 and not on the multiplier of 15 being eschewed totally. This correction as made in** _**Sarla Verma**_ **was emphasized in** _**Reshma Kumari**_ **. Hence, if a multiplier of 20 was adopted going by** _**Reshma Kumari**_ **, the annual income has to be affirmed as taken by the Tribunal at 15,000/-. However,** _**Kishan Gopal**_ **applies a higher annual income of Rs.30,000/for a minor of age below 15 years but applied the multiplier of 15. Hence, what has to be ensured by this Court is as to the more beneficial computation being awarded; whether it be** _**Kishan Gopal or Reshma Kumari**_ **. Definitely** _**Kishan Gopal**_ **would be more beneficial to the appellant-mother whose daughter died in the accident.** **MACA.Nos.728 & - 6 - 1165 of 2010** **5. In such circumstances, the annual income to be taken in the case of a minor child below the age of 15 years is Rs.30,000/- and the multiplier to be adopted is 15, which brings it to Rs.4,50,000/- and after deduction of 1/3[rd] , the balance would be Rs.3,00,000/-.** **6. The learned Counsel for the Insurance Company, however, states that there could be no amounts granted under conventional heads. But,** _**Kishan Gopal**_ **specifically states that an amount of Rs.50,000/- has to be granted under conventional heads as a lump sum compensation.** **7. In such circumstances, the total compensation as entitled to the appellant in M.A.C.A.No.728 of 2010 would be Rs.3,50,000/- [Rupees three lakhs and fifty thousand]. The appeal would stand allowed as indicated above.** **8. M.A.C.A.No.1165 of 2010 seeks enhancement of the compensation granted to the appellant, who suffered injuries in the accident. The injuries suffered were the following:** ## **“1. Comminuted fracture nasal bone.** **2. Comminuted fracture Frontal bone”.** **The appellant contended that she is a milk vendor and her monthly income is Rs.3,000/-; without any proof being** **MACA.Nos.728 & - 7 - 1165 of 2010** **offered. The Tribunal, hence, fixed the monthly income in the year 2002 as Rs.2,000/- per month; which, according to this Court, is quite reasonable. There was a total incapacitation for three months as found by the Tribunal, which is not liable to be interfered with and a compensation of Rs.6,000/- was awarded for the same. Towards transportation, an amount of Rs.2,000/- was granted and for extra-nourishment Rs.1,500/- as also Rs.500/- as damage to clothing and articles. The medical bills to the extent of Rs.1,156/- was granted in toto and for 13 days inpatient treatment, a lump sum compensation of Rs.2,000/was granted. The appellant was also granted 15,000/- as compensation for pain and suffering and Rs.3,000/- as loss of amenities and enjoyment in life. The compensation claimed of Rs.65,000/- for permanent disability and Rs.10,000/- for dis-figuration were rejected on the ground of no evidence being led. This Court is of the opinion that considering the injuries suffered, on all the counts the appellant can be granted a lump sum enhancement of Rs.5,000/- [Rupees five thousand]. M.A.C.A.No.1165 of 2010 would stand allowed to that extent.** **9. The amounts awarded as above in the appeals, after deducting what has already been paid, shall be paid** **MACA.Nos.728 & - 8 - 1165 of 2010** **within two months from the date of receipt of a certified copy of this judgment with interest from the date of application and costs, if any, as awarded by the Tribunal. The appellant would not be entitled to the interest for 427 days and 420 days on the amounts enhanced, being the delay occasioned in filing the respective appeals. The appellant shall produce a copy of a cancelled cheque of the Bank account in her name with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT/RTGS to the said account, failing which the applicant-claimant can approach the Tribunal.** **Ordered accordingly. Parties are left to suffer their respective costs, in the appeal.** ## **Sd/-** **K.VINOD CHANDRAN** **JUDGE** **Vku/-** **[ true copy ]**