MACA.No. 2644 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **WEDNESDAY,THE 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940** ## **MACA.NO. 2644 OF 2017** **AGAINST THE AWARD IN O.P.(M.V.) NO.112/2009 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 10-04-2012** ## **APPELLANTS/PETITIONERS:** - **1 JAMES.S, AGED 58 YEARS, S/O.SOLOMON SURESH, PANACHERIL HOUSE, MOONKILAR P.O., THAVARNAMEDU CHERIYOOR, VANDIPERIYAR.** - **2 PADMINI, AGED 49 YEARS, W/O.JAMES S., PANACHERIL HOUSE, MOONKILAR P.O., THAVARNAMEDU CHERIYOOR, VANDIPERIYAR.** - **3 SATHEESH, PANACHERIL HOUSE, MOONKILAR P.O., THAVARNAMEDU CHERIYOOR, VANDIPERIYAR.** - **4 STELLA MARY, PANACHERIL HOUSE, MOONKILAR P.O., THAVARNAMEDU CHERIYOOR, VANDIPERIYAR.** - **BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S.KURUP** ## **RESPONDENTS/RESPONDENTS :** - **1 T.K. SASI, THAIVALAPPIL HOUSE, VENGINISSERY, PARALAM P.O., THRISSUR-680001.** - **2 MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM-695001.** - **3 NATIONAL INSURANCE COMPANY LIMITED, KOTTAYAM-686503.** ## **BY ADV. SRI.P.G.GANAPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 2644 OF 2017** **2** ## **JUDGMENT** This appeal is preferred against the award in O.P.(M.V.) No.112 of 2009 of the Motor Accidents Claims Tribunal, Kottayam by the legal heirs of the deceased Suresh. On 20.12.2007 at 4.00 p.m., the deceased was riding a motorcycle KL-37/2726 along Ettumanoor-Pala road and when he reached at Pattithanam, another vehicle KL-15/5880 driven in a rash and negligent manner hit against the motorcycle, as a result the rider of the motorcycle sustained serious injuries and while undergoing treatment at Medical College Hospital, Kottayam he succumbed to the injuries. The legal heirs of the deceased preferred the claim petition under Sec.163A of the Motor Vehicles Act and the learned Tribunal awarded compensation of Rs.3,16,500/- (Rupees Three Lakh Sixteen Thousand Five Hundred only) with 7.5% interest and cost. Hence, this appeal. 2. In the lower court the driver of the vehicle was ex parte. The owner of the vehicle did not file any written statement. Insurer admitted the insurance of the vehicle, but **MACA.NO. 2644 OF 2017** **3** contended that the deceased was charge sheeted under Sec.3(1) read with Section 181 of the Motor Vehicles Act. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A3. Respondents evidence consists of Ext.B1. 3. Learned counsel appearing for the appellant contended that the deceased was aged 30 years at the time of accident and the learned Tribunal took 13 as the multiplier. According to 2[nd] Schedule of the Motor Vehicles Act, 1988, the correct multiplier is 17. The insurer has no dispute with regard to the above contention advanced by the appellant. 4. 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. **MACA.NO. 2644 OF 2017** **4** Explanation.- For the purposes of this sub-section, “ 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 Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the 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.] 5. The application under Sec.163A would be limited to 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 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 **MACA.NO. 2644 OF 2017** **5** 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. According to proviso 163-A generally in practical terms it is found that discretion vested in assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case. 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 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 **MACA.NO. 2644 OF 2017** **6** 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. 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 **MACA.NO. 2644 OF 2017** **7** 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 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. ” 8. In the light of the above argument, I have perused the 2[nd] Schedule of Sec.163A. If the age of the victim is above 25 years, but not exceeding 30 years the multiplier is 18. In this case, the victim was aged 30 years and his annual income was Rs.36,000/-. Hence the claimants are entitled to get Rs.6,48,000/- (36000x18) for Loss of dependency. From that amount, 1/3[rd] has to be deducted. The balance is Rs.4,32,000/-. The learned Tribunal awarded Rs.3,12,000/- on that head and the balance is Rs.1,20,000/(Rupees One Lakh Twenty Thousand only). Accordingly, the appellants are entitled to get Rs.1,20,000/- (Rupees One Lakh Twenty Thousand only) with 9% interest and proportionate cost in addition to Rs.3,16,500/- (Rupees Three Lakh Sixteen Thousand Five Hundred only) awarded by the learned Tribunal. The insurer is directed to satisfy the award within **MACA.NO. 2644 OF 2017 8** 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. M.A.C.A. is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge NS