MACA Nos. 2361 of 2007 and 3059 of 2008 v. United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **& THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933** **MACA.No. 2361 of 2007()** **-----------------------------------OPMV.1213/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM** **....................** ## **APPELLANT/5TH RESPONDENT:** **------------------------------------------------** **UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11.** **BY ADV. SMT.RAJI T.BHASKAR** **RESPONDENTS/PETITIONERS 1, 2 & 3 AND RESPONDENTS 1 TO 4 RESPECTIVELY:** **--------------------------------------------------------------------------------------------------** **1. AMAZIA WILSON @ M.J. WILSON, AGED ABOUT 65 YEARS, S/O. LATE JOSEPH VINCENT, MOOLIYIL HOUSE, P.O. VANIAMKULAM, MISSION COMPOUND, PALAKKAD DISTRICT.** **2. ALICE VIMALA, AGED ABOUT 60 YEARS,** - **W/O. AMAZIA WILSON, -DO-.** **3. VINCY HELAN, AGED ABOUT 35 YEARS,** - **W/O. SUNIL G.BOY, -DO-.** **4. E.K. ARAVINDAKSHAN, AGED ABOUT 56 YEARS, S/O. KRISHNAN, INJAKKAL HOUSE, (P.O) VELAPPAYA, THRISSUR DISTRICT.** **5. C.D. CHAKKO @ SUNNY, AGED ABOUT 73 YEARS S/O. DEVASSY, CHITTILAPPILLY HOUSE, P.O. PULLAZHI, KADAVARAM (VIA), THRISSUR DISTRICT.** **6. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE NO.1, T.D.BUILDING, ROUND WEST, THRISSUR P.O., THRISSUR DISTRICT.** ## **MACA.No. 2361 of 2007** **7. E.K. ANEESH BABU, AGED ABOUT 28 YEARS, S/O. KUNJEEDUKUTTY HAJI, ELAMKULAM NIVAS, CONVENT ROAD, P.O. OTTAPPALAM, PALAKKAD DISTRICT.** **R1 TO R3 BY ADV. SRI.K.B.ARUNKUMAR.** **R4 & R5 BY ADV. SRI.G.HARIHARAN,** **SRI.PRAVEEN.H.** **R6 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE,** **ADV. SRI.P.JACOB MATHEW.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/07/2011, ALONG WITH MACA NO.3059 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **R. BASANT & N.K.BALAKRISHNAN, JJ.** **----------------------------------------------------** **M.A.C.A.Nos.2361 of 2007 and 3059 of 2008** **---------------------------------------------------Dated this the 26th day of July, 2011** ## **Judgment** ## **Basant, J.** These appeals are directed against the award passed by the Tribunal under Section 163A of the M.V.Act. Claimants are the parents and sister of a young man aged 35 years who suffered injuries and succumbed to such injuries in a motor accident. Two vehicles were involved in the accident. The owner and authorised insurer respectively of the two vehicles have been directed to pay the amount equally to the claimants. The Tribunal against a claim for Rs.6.17,500/-, directed payment of only an amount of Rs.1,38,900/- as compensation along with interest at the rate of 7% per annum from the date of the petition to the date of realisation along with costs. 2. Claimants have preferred M.A.C.A.No.3059 of 2008. Claimants claim to be aggrieved by the quantum of compensation awarded. One of the two insurance companies who have been made liable to pay the amount - M/s.United India MACA 2361/07 & 3059/08 2 Insurance Co.Ltd. has preferred the appeal M.A.C.A.No.2361 of 2007 raising the plea that the claim under Section 163A is not maintainable at all as there are indications to suggest that the deceased was earning an income exceeding Rs.40,000/annually. 3. Arguments have been heard. We shall first of all consider the contention that the income of the deceased being in excess of Rs.40,000/-, the claim under Section 163A is not maintainable at all. The learned counsel for the appellant-insurance company relies on the decision in **Deepal Girishbhai Soni v. United Insurance Co. Ltd.** (AIR 2004 SC 2107). In particular reliance is placed on paragraph 67 of the said judgment which we extract below: “We, therefore, are of the opinion that Kodala (supra) has correctly been decided. However, we do not agree with the findings in Kodala (supra) that if a person invokes provisions of Section 163-A, the annual income of Rs.40,000/- per annum shall be treated as a cap. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs.40,000/- MACA 2361/07 & 3059/08 3 can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act. 4. Clarifying the earlier decision in **Oriental Insurance Co. Ltd. v. Hansrajbhai Kodale** (AIR 2001 SC 1832) it has been held in **Deepal Girishbhai Soni v. United Insurance Co. Ltd.** (supra) that the claim under Section 163A cannot be lodged by persons having an annual income exceeding Rs.40,000/-. The said decision binds us. It is unnecessary to refer to the argument that such a restriction is not there in the body of Section 163A. We are bound by the said decision and we have to follow the same. 5. The learned counsel for the claimants submits that it is absolutely incorrect to say that the annual income of the deceased exceeded Rs.40,000/-. He relies on the specific statement in the claim petition that the monthly income of the deceased was only Rs.3,000/-. In fact the Tribunal on the basis of the evidence, came to the conclusion that the monthly income of the deceased was only Rs.2400/-. In that view, the annual income of the deceased cannot be held to be above Rs.40,000-. The other insurance company which has been mulcted with the MACA 2361/07 & 3059/08 4 liability has not chosen to challenge the award, it is pointed out. 6. The learned counsel for the appellant-insurance company submits that though the monthly income was shown as only Rs.3000/-, the oral evidence tendered on behalf of the claimants as also the income certificate produced would show that the total earnings of the deceased exceeded Rs.40,000/- annually. This is resisted by the contention that the net annual income was only Rs.36,000/- as claimed and only Rs.28,800/- as found by the Tribunal. 7. We are of the opinion in the circumstances of the case that the assertion made by the claimants in the petition under Section 163A as also the specific finding of the Tribunal clearly show that the deceased was a person earning below Rs.40,000/annually. We are, in these circumstances, satisfied that undue importance and emphasis need not be made on the statement made by the claimants when they mounted the witness box. In the interest of justice, we are satisfied that the assertion made by the claimants to the effect that the monthly income is only Rs.3000/- can safely be accepted to ascertain the jurisdiction of the Tribunal under Section 163A. In that view of the matter, we MACA 2361/07 & 3059/08 5 are of the opinion that the challenge raised against the impugned award on that ground is only to be rejected. We do further note that the other insurance company involved, i.e. M/s.Oriental Insurance Co.Ltd. has not chosen to challenge the award. We do not mean to say that such absence of challenge would confer jurisdiction on a Tribunal which it does not have initially. On the averments in the petition, we find that the Tribunal has jurisdiction to decide the claim under Section 163A and hence we do not attach any undue significance to the tall claim made during evidence by the witnesses which claim the Tribunal chose not to accept. 8. The claimants challenge the quantum of compensation awarded. The Tribunal has erred grossly in coming to the conclusion that the compensation payable must be ascertained by resort to multiplier-multiplicand method, submits the learned counsel. We agree with the learned counsel. We have adverted to this aspect in detail in the decision in **M/s.National Insurance Co. Ltd. v. P.C.Chacko and others** (judgment dated 22.7.2011 in MACA Nos.223/07 and 243/07). The multiplier in column 2 of the table/chart under clause 1 of the Second Schedule has no MACA 2361/07 & 3059/08 6 relevancy whatsoever in ascertaining the quantum of compensation payable in cases of death. That multiplier is relevant only when one attempts to ascertain the quantum of compensation payable for disability for non-fatal accidents under clause 5 of the Second Schedule. The Tribunal has erred grossly in attempting to ascertain the quantum of compensation under Section 163A by resort to the multiplier-multiplicand method. The endeavour on the part of the Tribunal must be limited to identify the correct age group and the correct income group. The entry against the relevant horizontal column and the relevant vertical column gives the amount payable in “rupees in thousands”. That alone has got to be followed to ascertain the quantum of compensation payable. From that one-third will have to be deducted as per the note to the table/chart under clause 1. So reckoned, the deceased who is shown to be a person of the age 30 years has to be included in the age group of persons of aged 30-35 years coming under horizontal column No.5. To decide whether he must be included in the group of persons belonging to the age group of 25 to 30 years or 30 to 35 years, no better evidence has been placed before the court and in these MACA 2361/07 & 3059/08 7 circumstances we include him in the group of persons aged above 30 years but not exceeding 35 years. 9. Now we must ascertain the income group. Going by what has been accepted by the Tribunal, his annual income is only Rs.28,800/-(Rs.2400x12). The deceased was therefore a person earning an income above Rs.24,000/- upto Rs.36,000/-. We have already adverted in **M/s.National Insurance Co. Ltd. v. P.C.Chacko and others** (judgment dated 22.7.2011 in MACA Nos.223/07 and 243/07) that for ascertaining the compensation payable in cases of death, the range of income which the deceased was earning at the time of his death alone need be ascertained and not the specific income. So reckoned, the deceased is shown to be a person earning income above Rs.24,000/- upto Rs.36,000/-, the compensation payable in respect of whom must be held to be shown under vertical column No.12 under Rs.36,000/-. Rs.5,76,000/- is hence the amount of compensation prescribed in the relevant entry against the relevant horizontal and vertical column. Two-third of the same alone shall be payable as compensation in the light of the note to the table. This means that only Rs.3,84,000/- (5,76,000 x 2/3) is MACA 2361/07 & 3059/08 8 payable as compensation. 10. In addition to that, the amount of Rs.2000/- under the head of funeral expenses and Rs.2500/- under the head of loss of estate will also have to be granted. That means that the total amount payable is Rs.3,88,500/- as per the details shows below: 1. Compensation in case of death under clause 1 of the Second Schedule(Rs.576000x2/3) -Rs.3,84,000/2. Funeral expenses (clause 3(i) ) -Rs.2000 3. Loss of estate (clause 3(iii) ) -Rs.2500 ---------------Total -Rs.3,88,500/========== ## 11. We have already held in **M/s.National Insurance Co.** **Ltd. v. P.C.Chacko and others** (judgment dated 22.7.2011 in MACA Nos.223/07 and 243/07) that the actual loss suffered by the claimant is irrelevant in a claim for compensation under Section 163A. Whatever be the actual loss, such claimant will be entitled to the amount specified/indicated under the Second Schedule. It is unnecessary hence to embark in a claim under Section 163A on an enquiry as to what exactly is the actual loss suffered by the claimants. 12. The above discussions lead us to the conclusion that the appellants/claimants are entitled to a further amount of MACA 2361/07 & 3059/08 9 Rs.2,49,600/- (3,88,500 minus 1,38,900) in addition to the amounts already awarded by the Tribunal. 13. In the result: a) M.A.C.A.No.2361 of 2007 is dismissed. b) M.A.C.A.No.3059 of 2008 is allowed in part. c) The appellants/claimants are found entitled to a further amount of Rs.2,49,600/- as per the details shown above, in addition to the amounts already awarded by the Tribunal. d) We direct that interest shall be payable on the entire amount of compensation at the rate and for the period as directed by the Tribunal. e) All other directions of the Tribunal are upheld. ## **R. BASANT, JUDGE.** ## **N.K.BALAKRISHNAN, JUDGE.** srd MACA 2361/07 & 3059/08 10