MACA No. 1906 of 2011 (Against the Award dated 20-12-2010 in OPMV 2826/2006 of MACT, Ernakulam)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 7TH DAY OF NOVEMBER 2017 / 16TH KARTHIKA, 1939 ## **MACA.No. 1906 of 2011** (AGAINST THE AWARD DATED 20-12-2010 IN OPMV 2826/2006 of M.A.C.T., ERNAKULAM) ## APPELLANT/PETITIONER: MINOR ANTONY DANNY. K @ DANNY K.A. AGED 17 YEARS, REPRESENTED BY HIS NEXT FRIEND AND MOTHER K.PAULINE ANTONY, AGED 42 YEARS, W/O.K.C.ANTONY, 1/1601, KURISUPARAMBIL HOUSE, SOUTH THAMARAPARAMBU, FORT COCHIN, COCHIN - 1. BY ADVS.SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH ## RESPONDENTS/RESPONDENTS: 1. MANJULA K.S., W/O.MURALI, HOUSE NO.10/119, SJD LANE, BHAGOM, AMARAVATHY, FORTCOCHIN, COCHIN - 1. 2. D.S.MURALI, - S/O.DAMODHARAN, HOUSE NO.10/119, SJD LANE BHAGOM, AMARAVATHY, FORTCOCHIN, COCHIN - 1. 3. NATIONAL INSURANCE COMPANY LTD 2ND FLOOR, DAMODHAR CHAMBERS, STATUE JUNCTION, TRIPUNITHURA - 682 031. R3 BY ADV. SRI.P. JACOB MATHEW R1 & 2 BY ADV. SRI.PRAKASH KESAVAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-11-2017, ALONG WITH MACA Nos.1907, 1908, 1910, 1911/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMG C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ. ----------------------------------------------MACA. Nos.1906,1907,1908,1910 & 1911 of 2011 ----------------------------------------------Dated this the 7th day of November, 2017 ## JUDGMENT ## Jyothindranath,J. All these appeals are filed against different awards on claim petitions arose from a single motor vehicle accident occurred on 29.4.2006. The appellants were passengers in a tempo van bearing registration No.KL-07 AW-6463. The vehicle capsized and the passengers therein sustained fatal injuries and some of the passengers died. MACA.No.1906/11 is filed by the claimant in OP(MV).2826/2006 on the files of the MACT, Ernakulam, MACA.No.1907/11 is filed by the claimants in OP(MV).2552/2006 on the files of the MACT, Ernakulam, MACA.No.1908/11 is filed by the claimant in OP(MV).2814/2006 on the files of the MACT, Ernakulam, MACA.No.1910/11 is filed by the claimants in MACA.1906/2011 & conn. Cases. 2 OP(MV).2827/2006 on the files of the MACT, Ernakulam, and MACA.No.1911/11 is filed by the claimant in OP(MV).2804/2006 on the files of the MACT, Ernakulam. In all the appeals the challenge is regarding the quantum of compensation awarded by the Tribunal. 2. When the appeals came up for hearing, the learned counsel appearing for the appellants submitted before us that in these cases the Tribunal assessed compensation not considering the gravity of injury sustained to the claimants as well as the settled legal position regarding awarding of compensation in death cases. It is also brought to our attention that, the Tribunal in these cases awarded compensation and directed the Insurance Company only to deposit the award amounts that relating to the highest compensation of 12 claimants alone, i.e. the direction was restricted to a number of persons shown in the permit of the vehicle. The Tribunal erred in giving such a direction. 3. We heard the learned counsel appearing for the Insurance Company. The learned counsel submitted that MACA.1906/2011 & conn. Cases. 3 just compensation was awarded in these cases. As such an interference is not warranted. After hearing the counsel we perused the award in theses cases. We are going to deal with the appeals separately as follows:- MACA.No.1906/2011 In this appeal a minor boy aged 12 years is the injured claimant. He sustained displaced fracture of both bones of left distal forearm as well as displaced fracture of medial malleolus right ankle. He was treated in the Holy Family Hospital, Muthalakodam at the initial period and thereafter he was treated at Lakshore hospital, Maradu. Altogether, he was in the hospital for 30 days. The Tribunal awarded a total compensation of Rs.1,06,573/-. The said award is under challenge. After going through the award, it can be seen that here is a case where a minor sustained very severe fracture injuries. It can also be seen that there were three fractures, that also displaced fractures. Surely in this case, no disability certificate produced by the claimant. But this court has to keep in mind that the claim is by a minor. MACA.1906/2011 & conn. Cases. 4 The court has to fix a just compensation in a claim especially when the claimant is a minor. Further, there was inpatient treatment for about 30 days. We feel that the fracture injuries will precipitate disability. It will be in between 1% to 10%. We are coming to this conclusion especially when fractures are displaced in nature. Thus keeping the dictum laid down by the Supreme Court in **Master Mallikarjun vs. Divisional Manager, National Insurance Company Ltd. and another (2013 (3) KLJ 815),** in such a case under the head of non pecuniary heads, the claimants will be entitled for a sum of Rs.1,00,000/-. Surely in this case, the Tribunal awarded Rs.20,000/- towards pain and suffering and another Rs.15,000/- towards compensation for loss of convenience in life. Those amounts are deducted from the above Rs.1,00,000/-. Thus, in this case the appellants will be entitled for an additional compensation of Rs.65,000/-. The said compensation is awarded. ## MACA.No.1907/11 MACA.1906/2011 & conn. Cases. 5 In this case, the appellants are the father, mother and other siblings of the deceased minor boy aged 7 years. The case of the appellants is that the compensation awarded on the head of dependency as well as on the head of funeral expenses and love and affection are on a lower side. It can be seen that, in this case, towards loss of dependency a lump sum amount of Rs.80,000/- was seen awarded by the Tribunal. A multiplier method is not adopted by the Tribunal. As a guideline, the schedule available under section 363A will be helpful to assess the compensation in this case. Towards loss of dependency, as a non earning person, Rs.15,000/- is taken as his annual income and a multiplier of 15 can be used for assessment purpose. No deduction is warranted as the minor is only aged 7 years. Thus, on the head of dependency, the appellants will be entitled for a compensation of Rs.2,25,000/-. On this head Rs.80,000/- is already seen awarded by the Tribunal. Thus, deducting the same, the appellants will be entitled for an additional compensation of Rs.1,45,000/-. On the head of MACA.1906/2011 & conn. Cases. 6 funeral expenses only a sum of Rs.5,000/- is seen awarded. That is also on a lower side. An additional sum of Rs.10,000/- is awarded on this head. The deceased was aged only 7 years. Parents and siblings are the claimants. The compensation awarded on the head of love and affection is only Rs.25,000/-. That is also on a lower side. An additional amount of Rs.25,000/- is awarded on this head. Thus, the appellants will be entitled for an additional compensation of Rs.1,80,000/-. The said additional compensation is awarded . MACA.No.1910/2011 In this case, a woman aged 65 years died. The children of the deceased are the appellants. The grievance of the appellants is that the notional income fixed for assessment of compensation is on a lower side. The Tribunal considered only Rs.1500/- as the notional income for assessment purpose. It is relevant to note that the accident occurred in the year 2006. Eventhough the appellants got a case that the deceased was conducting MACA.1906/2011 & conn. Cases. 7 business and getting a sum of Rs.5000/-, no positive evidence adduced in this regard. But still considering the deceased as a housewife and also considering the value of service she will be giving to the family, a sum of Rs.3000/can be considered as her monthly income for assessment purpose. Thus, recalculating the compensation available on the head of dependency, the appellants will be entitled for an additional compensation of Rs.108,000/- on this head (3,000 x 12 x 7 x 2/3- 60,000/-). It is further made clear that a multiplier of 7 adopted in this case for assessment following the table available in **Sarala Varma vs. Delhi Transport Corporation (2009) 6 SCC 121).** Towards funeral expenses only a sum of Rs.5,000/- is seen awarded. An additional compensation of Rs.10,000/- is awarded on this head. Eventhough the mother of the appellants died in the accident, the compensation awarded on the head of love and affection is only a sum of Rs.5,000/-. It is on a lower side. An additional compensation of Rs.45,000/- is awarded on this head. Thus, the appellants will be entitled for an MACA.1906/2011 & conn. Cases. 8 additional compensation of Rs.1,63,000/-. The said additional compensation is awarded. MACA.No. 1908/11 This is an injury case. A woman aged about 37 years sustained very grievous injuries including undisplaced fracture superior and inferior public rami (left side), fracture of right clavicle, undisplaced fracture of lateral orbital wall, fracture of 7[th,] , 8[th] and 9[th] ribs and further there was haemothorax, second degree burns of right knee. The case is that she was treated as inpatient in the hospital for about 38 days. Grievance of the appellant is that when the compensation assessed, the Tribunal considered only a sum of Rs.3,000/- as her monthly income. It is also the grievance that the compensation awarded on other heads are also on a lower side. After going through the schedule as well as the award it can be seen that the appellant sustained 12% disability, which was accepted by the Tribunal. But surely her monthly income considered is on a lower side. She was aged 37 MACA.1906/2011 & conn. Cases. 9 years at the time of the accident and her case is that she was a tailor by profession at that point of time and was earning Rs.4,500/- p.m. Considering the period in which the accident occurred and also considering the socio economic situation then prevalent, we are inclined to take Rs.4000/- as the monthly income of the appellant for assessment purpose. Thus, reassessing the compensation on the disability head, she will be entitled for an additional compensation of Rs.21,600/- [( 4000 x 12 x 12 x15) - 64800]. Considering the nature of injury, atleast 6 months period can be considered to assess the loss of earning. Thus she will be entitled for an additional compensation of Rs.15,000/- on this head. (4000 x 6 - 9000/-). In this case, learned counsel appearing for the appellant highlighted before us that there was disfiguration on the leg of a young woman aged only 37 years. The compensation awarded on the head of disfiguration is also on a lower side. It is also pointed out that photographs highlighting disfiguration is also produced before the court and marked MACA.1906/2011 & conn. Cases. 10 the same as Ext.A48 series. Considering all aspects including the age of the appellant an additional sum of Rs.10,000/- is awarded on this head. Thus, the appellant will be entitled for an additional compensation of Rs.46,600/- . The said additional compensation is awarded. MACA.No.1911/2011 In this case, the appellant sustained fracture of tibial condyle. She was treated as inpatient for 19 days. She was awarded a total sum of Rs.56,045/-. Out of the same, Rs.29,045/- was awarded towards reimbursement of medical expenses. Surely, the compensation awarded is on a lower side especially when the fracture sustained on tibial condyle. Thus, considering the fact that it is a case of fracture of tibial condyle, atleast 6 months period can be considered for assessing loss of earning. On this head, the Tribunal awarded only Rs.6,000/-. Considering the monthly income of the appellant at Rs.4,000/-, she will be entitled for an additional compensation of Rs.18,000/- on this head (4000 x 6 - 6000). In this case no compensation is seen MACA.1906/2011 & conn. Cases. 11 awarded on the head of disability. Ext.A40 is the disability certificate pertaining to this case. The disability assessed therein is 10%. Eventhough no explanation is seen given by the Tribunal for not considering Ext.A40, we had opportunity to peruse the same. After perusing the same, as well as considering the fact that it is a case of fracture of tibial condyle, we are inclined to accept the disability assessed by the Doctor, which was seen marked as Ext.A40. Thus the appellant will be entitled for a compensation of Rs.72,000/- on this head. (4,000 x 15 x 12 x 10/100). Towards pain and suffering, the amount awarded is on a lower side. Only a sum of Rs.10,000/- is seen awarded on this head. An additional compensation of Rs.10,000/- is awarded towards pain and suffering. Towards loss of amenities and convenience in life a sum of Rs.6,000/- is awarded. That is also on a lower side. Thus, on the head of loss of amenities and convenience in life, an additional compensation of Rs.9,000/- is awarded. Thus, the appellant will be entitled for a total additional MACA.1906/2011 & conn. Cases. 12 compensation of Rs.109,000/-. The said additional compensation is awarded. 4. MACA.No.1906/11 is partly allowed and awarded an additional compensation of Rs.65,000/-. MACA.No.1907/11 is partly allowed and awarded an additional compensation of Rs.1,80,000/-. MACA.No.1908/11 is partly allowed and awarded an additional compensation of Rs.46,600/-. MACA.No.1910/11 is partly allowed and awarded an additional compensation of Rs.1,63,000/-. MACA.No.1911/11 is partly allowed and awarded an additional compensation of Rsa.1,09,000/-. The additional compensation awarded will bear interest at the very same rate as awarded by the Tribunal from the date of the claim petition till realisation. The Insurance Company shall deposit the amount within two months from the date of the receipt of a copy of this judgment. 5. Now, in these cases learned counsel brought to our notice the decision of the Hon'ble Apex court in **United India Insurance Co. Ltd. vs. K.M.Poonam and others** MACA.1906/2011 & conn. Cases. 13 **(2011 KHC 4218).** As per the dictum laid down therein the Hon'ble Apex court considered the ambit of section 147 (1)(b) and 149(1) and the liability of the Insurance Company in the case of violation of permit/overloading. After considering the provisions the Hon'ble Apex court held that the liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the MACA.1906/2011 & conn. Cases. 14 insurance policy continues under the provisions of sub section (1) of Section 149 of the Act, as it would be entitled to recover the same, if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, the persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle. 6. Thus, what comes out is that the insurance company will be liable to pay compensation for the number of persons permitted by the permit granted and towards the other persons who sustained injuries there will be a liability to pay and recover. In the case at hand, it can be seen that as per the permit the number of permitted persons were only 12 whereas 17 persons sustained injuries and claimed compensation. As per the award, it can be seen that the appellants herein comes to the category of persons who MACA.1906/2011 & conn. Cases. 15 were awarded the highest compensation. Under such circumstances, considering the dictum laid down by the Hon'ble Apex court in the **United India Insurance Co. Ltd. (supra)** it is directed that the whole amount awarded herein shall be deposited by the Insurance Company and the said amount shall be released to the appellants herein by the Tribunal. No order as to costs. C.K.ABDUL REHIM, JUDGE K.P.JYOTHINDRANATH, JUDGE Pmn/ MACA.1906/2011 & conn. Cases. 16