M/S United India Insurance Co. Ltd. v. P.V. Abdulla & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE A.K.BASHEER** **& THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI** **MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932** **MACA.No. 411 of 2004(B)** **----------------------------------[O.P(MV).NO.1992/1998 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY]** **....................** ## **APPELLANT/3RD RESPONDENT:** **-----------------------------------------------** **M/S. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, II FLOOR, MALANKARA BUILDINGS, PALAYAM, THIRUVANANTHAPURAM-34, REPRESENTED BY ITS AUTHORISED SIGNATORY, THIRD PARTY CLAIMS CELL, M.G.ROAD, ERNAKULAM.** **BY ADV. SMT.P.A.REZIYA.** ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1 & 2:** **-----------------------------------------------------------------------------------** **1. P.V.ABDULLA, AGED 58 YEARS, FATHER OF SHAFEENA.** **2. KHADEEJA, AGED 40 YEARS, MOTHER OF SHAFEENA.** ## **3. NAJMU, AGED 18 YEARS.** **4. FATHIMA, AGED 10 YEARS,** **5. RAZAK, AGED 6 YEARS (PETITIONERS 1 & 2 ARE FATHER AND MOTHER OF LATE SHAFEENA AND 3 & 4 ARE SISTER AND 5 IS THE BROTHER OF SHAFEENA. NO.4 & 5 ARE MINOR ARE REPRESENTED BY THEIR NEXT FRIEND MOTHER NO.2 ABOVE) (ALL ARE RESIDING AT KUTTIKKOL, MORAZHA AMSOM, KANOO DESOM, P.O. KUTTIKKOL).** **6. K.ARUNDHATHI, W/O. HARINDRAN, KAVITHA THURUTHIYIL, KIZHAKKEVILLA, PAPPANAMCODE, THIRUVANANTHAPURAM.** **M.A.C.A. NO.411/2004-B:** **7. A.NAZEER, S/O. ABDUL SALAM, 29 YEARS, POIKAYIL VEEDU, MANVILA, KULATHUR P.O., KOZHAKUTTAM.** **R1 TO R5 BY ADVS. SRI.A.K.ABDUL AZEEZ, SRI.K.K.MOHAMED RAVUF.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **prv.** ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 411 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 13[th] December, 2010** ## **JUDGMENT** ## Barkath Ali, J. Short question which arises for consideration in this appeal is whether the quantum of compensation that can be awarded in a motor accident case under section 166 of the Motor Vehicles Act can be lesser than the amount payable under the structured formula prescribed under Schedule II of the Motor Vehicles Act. On the other hand, the correctness of the principles laid down in a decision in National Insurance Company Ltd. V. Muneer (2003(1) KLT 137) is doubted in this appeal. 2. A girl namely Shafeena, aged 18, died in a motor accident that happened on September 11, 1998 at about 6.35 a.m. at Kuttikkol. While Shafeena was walking along the side of the road, she was knocked down by a lorry bearing registration No.KL-01/G 3756. She sustained serious injuries and she succumbed to the injuries sustained MACA 411/2004 2 while undergoing treatment in the hospital. Claimants are the parents, sister and brother of the deceased. They filed the O.P. before the Tribunal claiming a compensation of Rs.2,20,000/-, alleging negligence of the driver of the lorry 2[nd] respondent. 3. The 1[st] respondent owner of the offending lorry did not file any written statement before the Tribunal. The 2[nd] respondent driver of the offending lorry remained absent before the Tribunal. The 3[rd] respondent insurer of the offending lorry filed a written statement admitting the policy of the lorry. Exts.A1 and A2 were marked on the side of the claimants. No evidence was adduced by the respondents before the Tribunal. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the 2[nd] respondent driver and awarded a compensation of Rs.2,00,000/- with interest @9 % per annum from the date of petition till realization and proportionate costs. The Tribunal also found that compensation awarded under section 166 of the Motor MACA 411/2004 3 Vehicles Act shall not be lesser than the compensation prescribed under Schedule II of section 163A of the Motor Vehicles Act. The 3[rd] respondent Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the above finding of the Tribunal. 4. The following points arise for consideration:- - 1) Whether a lesser compensation than the prescribed under section 163A of the Motor Vehicles Act can be granted under section 166of the Motor Vehicles Act? - 2) Whether the compensation awarded by the Tribunal is excessive? 5. In National Insurance Company Ltd. V. Muneer (Supra) A Division Bench of this Court held that the compensation awarded under sections 166 and 168 of the Motor Vehicles Act can never be lesser than the amount payable under the structured formula under section 163A of the Motor Vehicles Act. Correctness of the principles laid down in the above decision is questioned by the learned counsel for the appellant. MACA 411/2004 4 ## 6. A Division Bench of this Court in the above decision ## held thus:- “4. At the outset we must note that the burden under S. 163A of the Motor Vehicles Act on a claimant is much less than on a claimant under S. 166/168 of the Motor Vehicles Act. No negligence need be proved in a claim under S. 163A. The objects and reasons of the Amendment Act clearly reveal a yearning to avoid time consuming disputes and to make available compensation expeditiously as per a reckoner structured formula by a rough and ready method. This was the obvious motivation. We are of opinion that in respect of a post amendment accident even when the claim is raised under S. 166/168 of the Motor Vehicles Act, the courts are obliged to bear in mind the quantum of compensation which the claimant would have received under S.163A of the Motor Vehicles Act. We would and need only say that normally the quantum of compensation awarded under S. 166/168 of the Motor Vehicles Act can never be lesser than the amount payable under the structured formula under S. 163A of the Motor Vehicles Act. Merely because the claimant had wrongly quoted the Section as 166/168 of the Motor Vehicles Act and had not specifically claimed under S.163A. it would be unjust, unreasonable and improper to deny to the claimant the minimum compensation which would have been payable under S. 163A of the Motor Vehicles Act. A tribunal which has imbibed the compassion of the statute cannot perhaps MACA 411/2004 5 ## resort to such a course. 5. In this view of the matter we hold that even in a claim under S. under S. 166/168 of the Motor Vehicles Act the quantum of compensation cannot fall below the amount prescribed in the structured formula stipulated under S. 163 A of the Motor Vehicles Act. Such an approach, we are satisfied, will only advance the legislative intent to make just and reasonable compensation available to victims of motor accidents expeditiously. 6. Of course it is now evident after the dictum in Oriental Insurance Co. Ltd. v. Hansrajbhai v. Kodala ((2001) 5 SCC 175) that the claims under S.168 of the Motor Vehicles Act and 163A of the Motor Vehicles Act are alternative and claimant cannot claim under both with a prayer to adjust the amount paid under S. 163A to his claim under S. 166/168. But that is far from saying that a claimant who has chosen to stake his claim under S. 166/168 of the Motor Vehicles Act cannot get the minimum guaranteed compensation under S. 163A of the Motor Vehicles Act. Of course it is true that the Legislature wanted to encourage persons to claim under S. 163A of the Motor Vehicles Act to ensure that such persons would be paid just and reasonable compensation guaranteed under S. 163A without the Tribunal/Court being obliged to go into the claim in very great and meticulous detail. But even then we are of opinion that merely because a claimant had chosen to claim a higher amount under S. 166/168 of the Motor Vehicles Act, it MACA 411/2004 6 may not be just and equitable to deny him the pre fixed compensation guaranteed under S. 163A of the Motor Vehicles Act.” 7. We are in complete agreement with the principles laid down in the above decision. Invariably in all cases where compensation is claimed under section 166 of the Motor Vehicles Act the claimants will be entitled to claim compensation under section 163A of the Motor Vehicles Act. Therefore, merely because they have chosen to claim under section 163A of the Motor Vehicles Act, it is not fair to award a compensation less than what is entitled to under section 163A of the Motor Vehicles Act. 8. Therefore accepting the principles laid down in the above decision, we hold that the principles laid down in the above decision is correct and that in a petition claiming a compensation under section 166 of the Motor Vehicles Act the compensation awarded shall not be lesser than what is prescribed under Second Schedule (section 163A) of the Act. 9. In this case the Tribunal awarded a compensation MACA 411/2004 7 of Rs.2,00,000/-. As the deceased was a minor girl notional income of Rs.15,000/- per annum can be taken as her income. That being so, for the loss of dependency the amount comes to Rs.2,60,000/- approximately. Therefore, the Tribunal is perfectly justified in awarding a compensation of Rs.2 lakhs for loss of dependency. Therefore, we feel that the compensation awarded by the Tribunal is not excessive. That being so the appeal has to be dismissed. In the result, the appeal is dismissed. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** mn.