National Insurance Co. Ltd. v. Thankappan Chettiyar and Others, MACA No. 199 of 2012, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 MACA NO. 199 OF 2012** **AGAINST THE AWARD DATED 31.10.2011 IN OPMV 1883/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/3RD RESPONDENT:** NATIONAL INSURANCE CO. LTD. KOTTAYAM., REP. BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, COCHIN - 35. BY ADV SRI.E.M.JOSEPH ## **RESPONDENTS/CLAIMANTS:** 1 THANKAPPAN CHETTIYAR, AGED 51, S/O.SUBRAMANIYAN CHETTIYAR, PADINJARE AMBATTU HOUSE, PADINJAREPURATHU, KURUMPANADOM P.O., CHANGANACHERRY 686 536. 2 RADHAMMA AGED 47, W/O.THANKAPPAN CHETTIYAR, PADINJARE AMBATTU HOUSE, PADINJAREPURATHU, KURUMPANADOM P.O.,CHANGANACHERRY 686 536. 3 KOSHY VARGHESE @ RAJESH KIZHAKKEDATHU, THALASSERY, THIRUVALLA 679 532. 4 VARGHESE CHACKO KIZHAKKEDATHU, PUSHPAGIRI ROAD, THIRUVALLA 679 532. BY ADV SRI.T.K.RADHAKRISHNAN FOR R1 & R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.8.2021, THE COURT ON 03.09.2021 DELIVERED THE FOLLOWING: M.A.C.A.No.199 of 2012 :-2-: ## **T.R.RAVI, J.** **-------------------------------------M.A.C.A.No.199 of 2012 -----------------------------------------------** Dated this the 3[rd] day of September, 2021 ## **J U D G M E N T** This appeal is at the instance of the insurer of a Maruti car bearing registration No. KL3/H-8814, who was the 3[rd] respondent in the claim preferred before the Motor Accidents Claims Tribunal, Kottayam. The claim was preferred by the parents and brothers of Sri.Vipin, who died in a road accident, when he was only 22 years of age. The deceased was an autorickshaw driver and on the fateful day, the autorikshaw that he was driving was involved in an accident with a Maruti Alto car. The claim was filed under Sections 163 A and 166 of the Motor Vehicles Act, 1988 and the Tribunal proceeded to consider the claim under Section 163 A. The Tribunal applied the Second Schedule to the Motor Vehicles Act and awarded a sum of Rs.4,58,076/- with 7.5% interest from the date of the petition (28.12.2009) with cost of Rs.9,000/-. The compensation was awarded only to the parents of the deceased, M.A.C.A.No.199 of 2012 :-3-: who are respondents 1 and 2 in this appeal. In paragraph 12 of the judgment, the Tribunal has relied on the decision of this Court in **United India insurance Company Ltd vs M.T.Mathai and others** reported in **2009 (3) KHC 31** and held that under Section 163 A, only one-third of the income need be reduced towards the personal expenses of the deceased and not 50%, and calculated the compensation payable under the head “loss of dependency” on that basis. The Tribunal applied a multiplier of '17', as the deceased was aged 22 years. The main contention in this appeal is that the Tribunal ought to have deducted 50% instead of one third, from the compensation payable under the head "loss of dependency" as has been held in the judgment of the Hon'ble Supreme Court in **Sarla Varma vs Delhi Transport Corporation and others** reported in **2010 (2) KLT 802** . 2. The counsel for the Appellant fairly submitted at the time of hearing that the above ground may not be available to the appellant in view of the fact that the statute itself provides only for deduction of one third of the compensation in a case which is M.A.C.A.No.199 of 2012 :-4-: decided under Section 163 A. The counsel appearing for the respondents submitted that what has been granted by the Tribunal is not adequate compensation and that the claimants are entitled to higher compensation even in terms of Section 163A. The above contention was opposed by the counsel for the Appellant on the ground that the claimants are not entitled to seek enhancement in an appeal filed by the Insurer, particularly since they have not filed any cross appeal. 3. A reading of the judgment of the Tribunal would show that the Tribunal had calculated the compensation payable under the head "loss of dependency" by fixing the annual income of the deceased at Rs.39,960/- and multiplying 2/3[rd] of the above said amount with the multiplier '17'. A Division Bench of this Court in the decision in **National Insurance Co Ltd v. P.C.Chacko and others** reported in **2011 (3) KLT 693** , has explained the manner in which the Second Schedule has to be operated. This Court has held that the 'multiplier-multiplicand method' will not apply. In paragraph 34 of the judgment, the manner in which the M.A.C.A.No.199 of 2012 :-5-: calculation is to be made has been narrated. This Court has held that for ascertaining the quantum of compensation payable in the case of death, the amounts given under the 13 vertical columns in “Rupees in thousands”, against the relevant horizontal row alone, has to be taken into consideration, subject to the note given below the table. Following the above guideline, the amount payable in this case will be Rs.4,80,000/- being 2/3[rd] of Rs.7,20,000/-, which is the figure shown in Second Schedule. As against this, the amount awarded by the Tribunal is Rs.4,52,880/-. The amount of compensation payable under Section 163A with reference to the Second Schedule would thus be Rs.27,120/- more than what has been granted. So as a matter of fact, legally the claimants are entitled to the above said amount also towards compensation. The only question therefore is whether this Court can, in an appeal filed by the insurer, grant an enhancement of the compensation to the claimants. 4. A Division Bench of this Court in the decision in **Bajaj Allianz General Insurance Co.Ltd., Kaloor v. Kunhami and** M.A.C.A.No.199 of 2012 :-6-: **others** reported in **2018 (3) KLT 576,** considered the question whether an enhancement of the compensation can be granted to the claimants in an appeal filed by the insurer, despite the fact that a cross objection filed by the claimants was dismissed on the ground of delay. Several aspects of the issue were considered by the Division Bench, like cases where a cross objection was omitted to be filed etc. This Court noticed earlier judgments where it had been held that an appeal by the insurer is an appeal by the indemnifier and a cross objection by the claimant is not maintainable in such cases. The Court also considered cases where it had been held that even in cases where a cross objection is not maintainable or where a cross objection, even if maintainable, had not been filed, this Court can, in exercise of the discretionary power available under Order 41 Rule 33 of the Code of Civil Procedure, grant just compensation. Finally, this Court held that the power available under Order 41 Rule 33 is a discretionary power which can be exercised in order to do complete justice and to ensure that just compensation is awarded M.A.C.A.No.199 of 2012 :-7-: to the victim, but that such a discretion cannot be exercised in cases where the victim had attempted to challenge the quantum of compensation by filing an appeal and had failed in the same. Applying the principles stated in the above judgment to the facts of the case, it can be seen that in this case the claimants had not filed a cross objection. It is also doubtful whether the claimants were entitled to file a cross objection in an appeal filed by the insurer. As such, the discretion under Order 41 Rule 33 is very much available for granting just compensation to the claimants. As already observed, the compensation granted by the Tribunal is less than what the claimants will be entitled to under the statute. Interest of justice hence requires that the award of the Tribunal is modified to that extent. In the result, while dismissing the appeal filed by the insurer, it is held that the claimants are entitled to an additional compensation of Rs.27,120/- along with interest at the rate of 7.5% per annum with effect from 28.12.2009. The Appellant is directed to deposit the enhanced compensation along with M.A.C.A.No.199 of 2012 :-8-: interest within 2 months from the date of receipt of a copy of the judgment, before the Motor Accidents Claims Tribunal, Kottayam. The disbursement of the enhanced compensation to respondents 1 and 2 shall be done in accordance with law. All pending interlocutory applications are closed. Sd/- **T.R.RAVI JUDGE** ami/