Mariyamma Varkey Pattathil & others v. Ajinal Azad & The New Indian Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 3[RD ] DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943** **MACA NO. 1805 OF 2012** **(AGAINST THE AWARD IN OPMV 415/2008 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, KOTTAYAM)** ## **APPELLANTS/PETITIONERS:** 1 MARIYAMMA VARKEY PATTATHIL HOUSE, PATHAMUTTAM, KOTTAYAM. 2 CHERIYAN VARKEY PATTATHIL HOUSE, PATHAMUTTAM, KOTTAYAM. 3 OMANA VARKEY @ KANDAMMA VARKEY PATTATHIL HOUSE, PATHAMUTTAM, KOTTAYAM. BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN ## **RESPONDENTS/RESPONDENTS 1 TO 2:** 1 AJINAL AZAD SEETHAKULAM HOUSE, NEAR PANCHAYATH JUNCTION, MULAMKUZHA, CHANGANOOR, PIN-689505. 2 THE NEW INDIAN ASSURANCE CO. LTD. KOTTAYAM, PIN-686001. BY ADVS. SMT.K.R.MONISHA SRI.VPK.PANICKER SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No.1805 of 2012 2 ## **JUDGMENT** This appeal is filed against the award in O.P.(MV) No. 415/2008 on the file of the Principal Motor Accidents Claims Tribunal, Kottayam. The claim petition has been filed under Section 163(A) of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation due to the death of Chacko Varkey @ Lalichan. 1St appellant is the mother of the deceased. 2nd and 3rd appellants are the brother and sister respectively of the deceased. 2. Incident alleged to have occurred on 09.12.2007 at about 9.30 a.m., while deceased was walking along the Changanassery- Parakulam road and reached near the St.Gits Engineering College, the motorcycle bearing Registration No.KL 04/Q 3113 ridden by the 1st respondent came in a rash and negligent manner and at excessive speed and knocked down the deceased resulting in fatal injuries. Immediately, he was taken to Sreenarayana Hospital, on the succeeding day he succumbed to the injuries. 1st respondent is the rider cum registered owner of the motorcycle. 2nd respondent is the insurer. Total compensation of Rs.4,00,000/- has been claimed. MACA.No.1805 of 2012 3 3. Before the Tribunal, 1st respondent remained ex-parte. 2nd respondent filed written statement admitting the policy coverage with respect to the offending vehicle. The age, occupation, monthly income, etc. stated in the claim petition are denied. 4. Exts.A1 to A10 were marked from the side of the appellants/claimants. There was no oral evidence from either side. 5. The Tribunal on evaluating the pleadings and materials on record, awarded a compensation of Rs.94,500/-. 6. Dissatisfied with the award passed by the Tribunal the claimants/appellants (here in after be referred as claimants) came up in appeal for the various ground stated in the memorandum of appeal. 7. Service as against R1 is complete, but there is no appearance. 2nd respondent appeared through Standing Counsel. 8. Heard the counsel for the claimants as well as the learned Standing Counsel for the insurer. Lower court records were called and perused. 9. The compensation awarded by the tribunal under various heads are as follows: MACA.No.1805 of 2012 4 |Compensation allowed at<br>different heads|Amount awarded<br>Rs.| |---|---| |Transportation|Not allowed| |Funeral Expenses|2,000-00| |Damage to clothing|| |Medical expenditure|Not allowed| |Bystander expenses|..do..| |Loss of dependency|90,000-00| |Loss of estate|2,500-00| |Extra nourishment|Not allowed| |Pain and sufferings|Not allowed| |For the mental agony of the<br>petitioners|..do..| |Total|94,500-00| 10. According to the learned counsel for the claimants the monthly income of the deceased adopted by the Tribunal as Rs.3,000/- is very low. Since the deceased was mason, the amount claimed as Rs.3,250/- ought to have been accepted. 11. It is further contented that the Tribunal wrongly adopted multiplier as '5' taking the age of the mother, the 1[st] claimant as MACA.No.1805 of 2012 5 the relevant factor. According to him, age of the deceased ought to have been taken as the relevant factor and the proper multiplier ought to have been applied. 12. The learned Standing Counsel for the insurer on the other hand would contend that in claim petition under Section 163A of the Act, the Tribunal is bound by the Structural formula and multiplier method has no application in claims under Section 163A. Hence, Tribunal has went wrong in applying multiplier method for granting compensation. The learned Standing Counsel in this context placed reliance on **Jacob v. Mohammed [2004 (1) KLT** **893]** , **Anthoniyamma and Others v. Managing Director, KSRTC [2008 (3) KLJ 507]** , **United India Insurance Co.Ltd. v. Madhavan [2011 (3) KLT 452]** , **National Insurance Co.Ltd. v. Divakaran [2009 (4) KLT 90]** , **Kadeeja v. Kerala State Road Transport Corporation [2013 (4) KLT 683** . 13. The Tribunal found that death of the deceased was out of the accident and 1[st] respondent is responsible for the accident. Further, Tribunal applied multiplier of '5' for the reason that mother of the deceased, 1[st] claimant is aged 68 years . As stated earlier, the learned Standing Counsel for the insurer would contend that the Tribunal went wrong in following the multiplier method in an MACA.No.1805 of 2012 6 ## application filed under Section 163(A) of the Act. Section 163A is relevant to be extracted, which reads thus: ## _**163A Special Provisions 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 force or instrument having the force of law, the owner of the motor vehicle or the authorised 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 purpose 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 of 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._ 14. On analyzing Section 163(A) it could be seen that it is a special provision making the owner of the motor vehicle or the authorised insurer liable to pay in the case of death or disablement due to an accident arising out of use of motor vehicle as per the 2[nd] schedule. Sub Section 2 further makes it clear that claimant is not required to plead or establish that the death or disablement was MACA.No.1805 of 2012 7 due to any wrongful act or neglect or default of the owner of the vehicle or any other person. 15. In **Jacob v. Mohammed** the Division Bench of this Court considered whether the Tribunal and High Court can calculate compensation in a different method than that is provided under the Second Schedule, when claims are filed under section 163(A) of the Act. It has been held that when claims are filed under Section 166 of the Act, the court is not bound to follow the structural formula in the Second Schedule blindly and depending upon the circumstances, variations can be made even though Second Schedule is to be followed as a guideline. But when claim petition has filed under section 163(A) of the Act, the court is bound to award compensation strictly as per the structural formula in the Second Schedule. The object of section 163(A) considered by the Apex Court in **Oriental Insurance Company Limited v. Hansrajbhai v. Kodala (2001 (2) KLT 235 (SC) : (2001 (5) SCC 175** has been quoted which reads thus: _“In this context if we refer to the Review Committee’s report, the reason for enacting S.163A is to give earliest relief to the victims of the motor vehicle accidents. The Committee observed that determination of cases takes a long time and, therefore, under a_ MACA.No.1805 of 2012 8 _system of structural compensation, the compensation that is payable for different classes of cases of a minor, loss of income on account of loss of limb etc. can be notified and the affected party can then have option of their accepting lump sum compensation under the Scheme of Structural compensation or of pursuing his claim through the normal channels._ _As per the objects and reasons, it is a new predetermined formula for payment of compensation to road accident victims on the basis of age/income, which is more liberal and rational. On the basis of the said recommendation after considering the report of the Transport Development Counsel, the Bill was introduced with “a new predetermined formula for payment of compensation to road accident victims on the basis of age/income, which is more liberal and rational” i.e. S.163A. it is also apparent that compensation payable under Section 163A is almost based on relevant criteria for determining the compensation such as annual income, age of the victim and multiplier to be applied.”_ _The liability under Section 163A is one created by the statute falls outside the purview of tort or actual damages as held by a Full Bench of this Court in National Insurance Co. Ltd. V. Malathi C. Salian (2003 (3) KLT 460). Hence, the compensation has to be calculated as per the Second Schedule._ MACA.No.1805 of 2012 9 16. In **Anthoniyamma** Division Bench of this Court dealt with distinction of claims under Section 166 and 163A and are said to be totally independent. In claims under Section 166 the entire matter including effect of further prospects have to be considered by the Tribunal for granting compensation. But in the case of 163A, if age and income at the time of accident is determined, the compensation is fixed in the case of fatal accidents as mentioned in the Second Schedule. 17. In **United Insurance Company v. Madhavan** a Division Bench of this Court found that in respect of compensation payable for fatal accidents in a claim under Section 163A, the multiplier shown against each entry of table/chart is irrelevant. In para No. 8 of the said judgment observation **National Insurance Co. v. Gurumallamma ((2009) ACJ 2660=2009 (9) SCALE 764** that the multiplier certified in the Second Schedule may not be decisive for calculating compensation in cases of death and that the word multiplier has been used only for the purpose of calculating damages in the case of permanent disability and not in the case of death as would appear from clauses 5 and 6 appended to the Second Schedule has been referred to. MACA.No.1805 of 2012 10 18. So in fatal accident the amount payable as compensation will have to be ascertained by ascertaining the relevant horizontal entry and the relevant column in the table/chart. 19. **National Insurance Co.Ltd. v. Divakaran [2009 (4) KLT 90]** would lay down the principle that only persons with an annual income up to Rs.40,000/- can avail benefit of Section 163A. 20. **Kadeeja v. Kerala State Road Transport Corporation [2013 (4) KLT 683** a Division Bench of this Court while dealing with Section 163A has held that the dependency has no relevancy and in death cases Tribunal need not go into the question as to selection of multiplier. Para No.7 and 8 were highlighted by the learned counsel. Wherein also it has been held that the multiplier method is not applicable in a case filed under Section 163A in fatal accident cases. 21. So, from the above settled position of law there will not be any doubt to conclude that in an application filed under Section 163A there is no scope for applying multiplier. The amount payable as compensation has to be ascertained by ascertaining the relevant horizontal entry and the relevant column in the table. So the Tribunal in this case grossly went wrong in applying multiplier of ‘5’ in fixing the compensation. MACA.No.1805 of 2012 11 22. The deceased in this case was 43 years old at the time of death. Tribunal fixed the income as Rs.3,000/-. The learned counsel would contend that the deceased was a meson and his monthly income ought to have been taken as Rs.4,000/-. However, the maximum annual income for claims under Section 163A is Rs.40,000/-. Since, deceased was a mason aged 43 years and accident was on 09.12.2007, his annual income can reasonably be taken as Rs.40,000/-. So, as per the Second Schedule of the Act as per the structured formula the annual dependency would be Rs.5,60,000/- from that 1/3 has to be deducted towards personal and living expenses of the deceased. Rs.5,60,000 x 1/3 = Rs.1,86,666/-. The balance would be Rs.3,73,334/- (Rs.5,60,0001,86,666). Apart from that the claimant is also entitled for General Damages provided under Clause 3 ie. under Sub Clause (i), funeral expenses Rs.2,000/- as well as under Sub Clause (iii) loss of estate Rs.2,500/-. Consortium under Sub Clause (ii) is allowable only if the beneficiary is the spouse. The claimants being the mother and siblings are not entitled for the same. So under the General Damages the claimants are entitled to get Rs.4,500/- in total. So the total compensation the claimants are entitled to get is Rs.3,77,834 (3,73,334+4,500) out of it the amount already MACA.No.1805 of 2012 12 awarded by the Tribunal to be deducted ie. Rs.94,500/- (3,77,83494,500) = **Rs.2,83,334/-** rounded on to Rs.2,83,350/-. 23. In the result, appeal allowed and appellants/claimants are allowed to realise the enhanced compensation of **Rs.2,83,350/- (Rupees two lakhs eighty three thousand three hundred and fifty only)** which will carry interest at the rate of 7.5% per annum from the date of petition ie. **17.3.2008** (excluding 295 days) till realisation. The third respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. Enhanced compensation shall be apportioned in the ratio 50:25:25 among the appellants/claimants. The disbursement of enhanced compensation to appellants shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the MACA.No.1805 of 2012 13 standing counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. In the result appeal stands allowed. Parties shall bear their respective costs. Sd/- **M.R.ANITHA JUDGE** SMF