MACA No. 2655 of 2008 & MACA No. 2717 of 2008 - Chithra (minor) v. Dony John and Others; Selin Ulahanan v. Dony John and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 13TH DAY OF SEPTEMBER 2018 / 22ND BHADRA, 1940** ## **MACA.NO. 2655 OF 2008** **AGAINST THE AWARD IN O.P.(M.V.) NO.2541/2004 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 23-01-2008** ## **APPELLANT/PETITIONER :** **CHITHRA (MINOR), REPRESENTED BY HER MOTHER AS NEXT FRIEND AND GUARDIAN ANNIE DONY, MLAVIL HOUSE, KIDANGOOR P.O., NOW RESIDING AT PERUMBAIKADU VILLAGE, KOTTAYAM.** **BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T. VARGHESE SMT.SUBHA ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** **1 DONY JOHN, MLAVI HOUSE, KIDANGOOR P.O., KOTTAYAM. 2 THE NATIONAL INSURANCE COMPANY LIMITED, KOTTAYAM. 3 VIJAYAN N.K., MACKAL HOUSE, THODUPUZHA EAST P.O., 4 MARTIN VARGHESE, PARAYIL PUTHENPURAYIL, EAST KALOOR P.O., THODUPUZHA. 5 THE NEW INDIA ASSURANCE CO.LTD. KOTTAYAM. BY ADVS.SRI.E.M.JOSEPH SRI.K.C.SANTHOSHKUMAR SRI.T.J.MICHAEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2018, ALONG WITH MACA.2717/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 2655 OF 2008** **2** **&** **M.A.C.A NO.2717 OF 2008** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 13TH DAY OF SEPTEMBER 2018 / 22ND BHADRA, 1940** ## **MACA.NO. 2717 OF 2008** **AGAINST THE AWARD IN O.P.(M.V.) NO.2496/2004 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 23-01-2008** ## **APPELLANT/PETITIONER :** **SELIN ULAHANAN,MLAVI HOUSE, KIDANGOOR P.O., NOW RESIDING AT PERUMBAIKADU VILLAGE, KOTTAYAM. BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.SHUBHA ABRAHAM** ## **RESPONDENT/RESPONDENTS:** **1 DONY JOHN AND OTHERS,MLAVIL HOUSE, KIDANGOOR P.O.,KOTTAYAM. 2 THE NATIONAL INSURANCE COMPANY LIMITED KOTTAYAM. 3 VIJAYAN N.K., MACKAL HOUSE, (DELETED) THODUPUZHA EAST P.O. ** R3 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 02.03.2018 IN I.A. NO.546 OF 2018. 4 MARTIN VARGHESE, PARAYIL PUTHENPURAIL, EAST KALOOR P.O., THODUPUZHA. 5 THE NEW INDIA ASSURANCE CO. LTD. KOTTAYAM. BY ADVS.SMT.DEEPA GEORGE SRI.N.S.NAJEEB SRI.P.JAYASANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2018, ALONG WITH MACA. NO.2655/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 2655 OF 2008** **3** **&** ## **M.A.C.A NO.2717 OF 2008** ## **JUDGMENT** These appeals are preferred against the award in O.P.(M.V.) No.2541 of 2004 and O.P. (M.V.) No.2496 of 2004 of the Motor Accidents Claims Tribunal, Kottayam by the injured. On 11.05.2002 at 4.15 p.m., appellants were the passengers in a Maruthi car KL-5/E-608, when they reached at the place of occurrence, a lorry KL-5/F-1683 driven in a rash and negligent manner hit against the Maruthi car, as a result they sustained serious injuries. They preferred the above claim petitions under Sec.163A of the Motor Vehicles Act, 1988. The Motor Accidents Claims Tribunal found that the accident was due to the rash and negligent driving of both vehicles and awarded compensation of Rs.31,600/(Rupees Thirty One Thousand Six Hundred only) in O.P.(M.V.) No.2541 of 2004 and Rs.51,050/- **MACA.NO. 2655 OF 2008** **4** **&** ## **M.A.C.A NO.2717 OF 2008** (Rupees Fifty One Thousand and Fifty only) in O.P.(M.V.) No.2496 of 2004. Being aggrieved by that, the claimant in O.P.(M.V.) No.2541 of 2004 preferred M.A.C.A. No.2655 of 2008 and the claimant in O.P.(M.V.) No.2496 of 2004 preferred M.A.C.A. No.2717 of 2008. 2. In the lower court, R1 was _ex parte_ . R3 and R4, who are the driver and owner were _ex parte_ . R2 the insurer contended that they had issued an Act Only Policy and have no liability. R5 admitted the insurance of the vehicle KL-5/F- 1683. Both the cases were tried separately. In O.P.(M.V) No.2541 of 2004 the evidence consists of documentary evidence of Exts.A1 to A6 and copy of the policy certificate was marked as Ext.B1. In O.P.(M.V.) No.2496 of 2004, the evidence consist of documentary evidence of Exts.A1 to A9 and copy of the policy was marked as Ext.B1. The Motor Accidents Claims Tribunal **MACA.NO. 2655 OF 2008** **5** ## **&** ## **M.A.C.A NO.2717 OF 2008** found that the accident was due to the rash and negligent driving of both vehicles and directed the owner of the Maruthi Car and the insurer of the lorry to satisfy the award. 3. Sec.163A of the Motor Vehicles Act reads as follows. _**163A. Special provision as to payment of**_ _**compensation on structured formula basis.** -(1) Notwithstanding anything contained in this Act or in any other law for the time being inforce or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be._ _Explanation.- For the purposes of this subsection, “ permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923)._ _(2) In any claim for compensation under Subsection (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the_ **MACA.NO. 2655 OF 2008** **6** ## **&** ## **M.A.C.A NO.2717 OF 2008** _claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person._ _(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.]_ 4. Learned counsel for the appellants contended that very low amount was awarded towards disability compensation in both cases. The claimant in O.P.(M.V.) No.2541 of 2004 was a minor who sustained 6% permanent disability and the claimant in O.P.(M.V.) No.2496 of 2004 sustained 11% disability. 5. The application under Sec.163A would be limited only to the victims who had income upto Rs.40,000/- per annum and those victims who had income beyond Rs.40,000/- per annum are required to go for claim under Sec.166 of the Act. Sec.163-A is provided for the person having fixed income with an instant relief with low **& 7** ## **MACA.NO. 2655 OF 2008** ## **M.A.C.A NO.2717 OF 2008** income upto Rs.40,000/- per annum. Persons with high income may also be equally needy if they lose the bread-winner on calculating Rs.40,000/per annum. Application under Sec.163-A is not tenable if made by a person whose income exceeds Rs.40,000/- per annum. But, in case the person with the higher income notionally brings down his income to Rs.40,000/- in order to present his claim under Sec. 163-A, the same can be permitted. In calculating the amount of compensation, the Court must lean to adopt the structured formula provided in the Second Schedule. 6. In injury cases the damages are to be assessed separately as pecuniary and special damages. The object is to compensate injured so far as money can compensate and for pain, suffering and loss of amenities in life, special circumstances of the claimant have to be taken **MACA.NO. 2655 OF 2008** **8** ## **&** ## **M.A.C.A NO.2717 OF 2008** into account. The compensation for non-pecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration. The assessment of compensation in permanent disability case would differ from person to person according to the nature of injury. Vast discretion is vested with the court for assessment of just compensation in injury cases. There can be no uniform standard and yardstick provided for assessing such compensation. The scope for awarding general damages and special damages are too wide for articulation.It is settled law that compensation for injury claims would be higher than that in death cases. The reason is that the injured has to suffer disability for the remaining period of his life. According to proviso to Section 163-A generally in practical terms it is found that discretion vested in assessment has to be **MACA.NO. 2655 OF 2008** **9** ## **&** ## **M.A.C.A NO.2717 OF 2008** on the basis of injury sustained to the victim on the basis of structured formula alone. 7. Apex Court in _**United India Insurance**_ ## _**Co. Ltd.**_ v. _**Sunil Kumar 2017(4) KLT 1093 (SC)**_ held as follows: “ _8. From the above discussion, it is clear that grant of compensation under S.163A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by S.163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by S.140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of S.163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of S.163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand S.163A of the Act to permit the Insurer to raise the defence of_ **MACA.NO. 2655 OF 2008** **10** ## **&** ## **M.A.C.A NO.2717 OF 2008** _negligence would be to bring a proceeding under S.163A of the Act at par with the proceeding under S.166 of the Act which would not only be self-contradictory but also defeat the very legislative intention. ”_ In view of the above, the insurer of the lorry is liable to pay compensation. 8. The learned counsel appearing for the appellant relied the decision of the Apex Court in _**Master Mallikarjun**_ vs. _**Divisional Manager,**_ ## _**The National Insurance Company Limited and Anr.**_ ## _**[2013 ACJ 2445]**_ which reads as follows: _Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 Lakhs; upto 60%, Rs.4 Lakhs; upto 90%, Rs.5 Lakhs and above 90%, it should be Rs.6 Lakhs. For permanent disability upto 10%, it should be Re.1 Lakh, unless there are exceptional circumstances_ **MACA.NO. 2655 OF 2008** **11** ## **&** ## **M.A.C.A NO.2717 OF 2008** _to take different yardstick._ The above decision is not applicable in a petition under Section 163A of the Motor Vehicles Act. In _**Mallikarjun's case**_ (Supra), if the disability is less than 10%, the compensation is Rs.1,00,000/-. But according to Section 163A, the amount of compensation stated in the structured formula under the second schedule alone is applicable. The appellant in M.A.C.A No.2655 of 2008 is a minor, hence notional income Rs.15,000/- has to be taken and the learned Tribunal awarded Rs.13,500/- for disability. No further increase is necessary on that point. In M.A.C.A No.2717 of 2008, the learned Tribunal took the notional income as Rs.15,000/- per annum. The disability is 11%. The multiplier is 8. Hence, she is entitled to get Rs.13,200/- (15,000x8x11%) for permanent disability. The learned Tribunal awarded **12** ## **MACA.NO. 2655 OF 2008** **&** ## **M.A.C.A NO.2717 OF 2008** Rs.8,250/- on that head and the balance is Rs.4,950/-. Just amount was awarded under other heads. 9. In M.A.C.A. No.2655 of 2008, the lower court awarded Rs.31,600/- (Rupees Thirty One Thousand Six Hundred only) as compensation and she is not entitled to get any further amount as compensation. The appellant in M.A.C.A. No.2717 of 2008 is entitled to get an enhanced compensation of Rs.4,950/- (Rupees Four Thousand Nine Hundred and Fifty only) with 9% interest and proportionate cost in addition to the amount awarded. Since negligence is not a criterion for awarding compensation under Sec.163A of the Motor Vehicles Act, 1988, R5 is liable to pay the compensation. Therefore, the direction of the Tribunal to pay compensation by the 1[st] and 5[th] insurer is hereby set aside. The 5[th] respondent/insurer is directed to satisfy the **& 13** ## **MACA.NO. 2655 OF 2008** ## **M.A.C.A NO.2717 OF 2008** compensation with 9% interest and proportionate cost within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. Sd/- **P.D. RAJAN JUDGE** _/True Copy/_ _NS/NAK_ _P.A. To Judge_