New India Assurance Co. Ltd. v. Anu Rajesh and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942** ## **MACA.No.1004 OF 2016(E)** **AGAINST THE AWARD IN OPMV 1604/2013 DATED 06-11-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/3rd RESPONDENT:** **THE NEW INDIA ASSURANCE CO.LTD. REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS DUTY AUTHORISED OFFICER.** **BY ADV. SRI.VPK.PANICKER** ## **RESPONDENTS/PETITIONERS:** **1 ANU RAJESH W/O.LATE RAJESH, AGED 27, KUDILINKAL HOUSE, THIRUVAMKULAM PO, THIRUVAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT 682 305. 2 ABHIRAM S/O.LATE RAJESH AGED 5, MINOR, REPRESENTED BY HIS MOTHER ANU RAJESH, W/O.LATE RAJESH, AGED 27, KUDILINKAL HOUSE, THIRUVAMKULAM PO, THIRUVAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT 682 305. 3 ARADHYA D/O.LATE RAJESH AGED 5, MINOR, REPRESENTED BY HIS MOTHER ANU RAJESH, W/O.LATE RAJESH, AGED 27, KUDILINKAL HOUSE, THIRUVAMKULAM PO, THIRUVAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT 682 305. 4 RAJAMMA W/O.LATE RAJAPPAN, AGED 61, KUDILINKAL HOUSE, THIRUVAMKULAM PO, THIRUVAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT 682 305.** **R1 BY ADV. SRI.MATHEWS K.PHILIP R1 BY ADV. SMT.MINISHA K DAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA.No.1004 OF 2016(E)** ## **-:2:-** ## JUDGMENT Dated this the 5[th] day of January, 2021 The award passed by Motor Accident Claims Tribunal, Ernakulam (for short 'Tribunal') on 06.11.2015 in O.P.(MV) No.1604/2013 is under challenge in the appeal. The challenge was made by the 3[rd] respondent, the insurer of KSRTC stage carriage bus bearing Registration No.KL-15/7936. The Tribunal found on appreciation of evidence that no fault liability under Section 163A of the Motor Vehicles Act, 1988 (for short 'the M.V. Act') as established and made the 3[rd] respondent liable to pay compensation fixed by it to the legal heirs for the death of one Mr.Rajesh in the motor accident occurred at 7.45 p.m. on 08.11.2012. 2. The parties to this appeal will hereinafter be referred to as the 3[rd] respondent and the petitioners in accordance with their status before the Tribunal in O.P.(MV) No.1604/2013. The contention of Sri.V.P.K. Panicker, the learned counsel for the 3[rd] respondent was that the Tribunal is totally unjustified in passing the impugned award in favour of the petitioners under Section 163A of the M.V. Act. According to him, the petition seeking **MACA.No.1004 OF 2016(E)** ## **-:3:-** compensation as O.P.(MV) No.1604/2013 was filed originally under Section 166 M.V. Act and the deceased Rajesh was averred by his legal heirs as a driver by occupation having a monthly income of Rs.12,000/-. An application seeking amendment of the provision under which the claim was preferred as Section 163A of the M.V. Act and the monthly income of the deceased as Rs.3,300/- was filed in the meantime. The said application was vehemently opposed by the 3[rd] respondent by filing a counter statement in detail. In the application a contention was vehemently raised by the 3[rd] respondent that monthly income of the deceased claimed by the petitioners originally as Rs.12,000/cannot be permitted to be reduced to Rs.3,300/- by way of amendment so as to fit the claim within the cap of Rs.40,000/for sustaining the claim for compensation under Section 163A. The contention raised as above was discarded and the application seeking amendment was allowed by the Tribunal. Accordingly the petition seeking compensation was amended and Section 163A was substituted in the place of Section 166 and Rs.3,300/in the place of Rs.12,000/-. Thereafter the claim petition was tried and based on the evidence adduced, the claim of the ## **MACA.No.1004 OF 2016(E)** ## **-:4:-** petitioners for compensation was allowed. The compensation was assessed as Rs.4,10,000/- and the 3[rd] respondent was directed to deposit the same in favour of the petitioners with interest at the rate of 9% per annum from the date of the petition till the date of realisation. According to the learned counsel, the Tribunal is highly unjustified in allowing the application seeking amendment, discarding the objection raised by the 3[rd] respondent and passing the impugned award fixing liability upon the 3[rd] respondent to pay the compensation arrived at. 3. The learned counsel for the 3[rd] respondent has relied on ## **National Insurance Company Ltd. v. Aravindakshan** [2016(2) KLT 711] to rest his contention as above. The learned counsel for the petitioners on the contrary has contended that the Tribunal is perfectly justified in passing the impugned award and therefore interference is uncalled for. The learned counsel has also relied on **Rukmani Devi v. New India Assurance Co.Ltd and another** [2009 ACJ 2202] to contend that the Tribunal has every right to allow the application seeking amendment and to limit the monthly income so as to fit the claim ## **MACA.No.1004 OF 2016(E)** ## **-:5:-** of the parties within the cap of annual income of Rs.40,000/- as envisaged under the structured formula inserted in the Act in the year 1994. 4. In the backdrop of the rival contentions advanced from either parties, this Court has gone into the impugned award. It was found on a perusal of the impugned award that the claim petition seeking compensation was originally preferred by the petitioners under Section 166 of the M.V. Act and the monthly income of the deceased was shown as Rs.12,000/-. As rightly pointed out by the learned counsel for the 3[rd] respondent the application was moved by the petitioners seeking amendment of the provision under which the claim was preferred and also for substituting the monthly income of the deceased as Rs.3,300/- in the place of Rs.12,000/-. It is pertinent to note from Annexure A3, final report laid by police that the accident was accidental. By filing the amendment application seeking to reduce the monthly income from Rs.12,000/- to Rs.3,300/- the petitioners actually intended to claim compensation on the principle of 'no fault liability' under Section 163A of the M.V. Act. It has been held by a Division Bench of this Court in **National Insurance** ## **MACA.No.1004 OF 2016(E)** ## **-:6:-** **Company** supra that parties before the Tribunal cannot seek to fix a cap or ceiling to the monthly income so as to bring it down, for their claim to be dealt with under Section 163A, if the annual income originally claimed by them is higher than the maximum limit of Rs.40,000/-. The benefit of Section 163A under the Second Schedule could only be availed by the parties seeking compensation when the maximum annual income of the deceased is Rs.40,000/-. If the annual income averred in the petition is more than Rs.40,000/-, the claim for compensation will not be maintainable under Section 163A of the M.V Act. In the case on hand, the monthly income averred in the petition originally was Rs.12,000/-. Therefore, the annual income would be Rs.1,44,000/-. As held by the Division Bench, the claimants cannot seek to fix a cap or ceiling to the monthly income so as to bring it down to fit their claim within the ambit of Section 163A, if their actual annual income is higher than Rs.40,000/-. The settled position being so, the Tribunal ought not to have allowed the application seeking amendment of the monthly income from Rs.12,000/- to Rs.3,300/-. The Tribunal has allowed the amendment application illegally, though objected to by the 3[rd] respondent vehemently. ## **MACA.No.1004 OF 2016(E)** ## **-:7:-** 5. In **Rukmani Devi** supra cited by the learned counsel for the respondent the argument advanced was that structured formula in 1994 was not revised by the Central Government even after a lapse of 13 years and the criteria of revision being based on cost of living, wages of the deceased can be raised as per the Minimum Wages Act. Accordingly, it was urged to treat the income of the deceased shown in the petition seeking compensation as Rs.60,000/- and to compute the compensation on its basis. In the case cited, the application seeking compensation was filed originally under Section 166 M.V. Act and the annual income of the deceased was pleaded as Rs.60,000/-. Reduction of the income from Rs.60,000/- was not sought by way of amendment so as to fit the annual income within the ceiling of Rs.40,000/-, but on the contrary Rs.60,000/- itself was sought to be considered for reckoning compensation under Section 163 A stating that the annual income fixed in the year 1994 was not revised and enhanced by the Central Government in accordance with the minimum wages payable to labourers in proportion to the rise in cost of living. Therefore, Rs.60,000/- was sought to be treated as the cap in the place of Rs.40,000/- and ## **MACA.No.1004 OF 2016(E)** ## **-:8:-** compensation was sought to be fixed under Section 163A M.V Act. In the cited case, claim petition was filed originally under Section 166 and after withdrawing the said petition, a fresh petition was preferred under Section 163A. The Tribunal dismissed the application for the reason that the income pleaded was beyond the limit of Rs.40,000/- per annum. The High Court of Delhi while considering the appeal has held that the limitation of annual income placed in Second Schedule will not prohibit filing of a claim petition, even if income is pleaded as more than Rs.40,000/- per annum, for the reason that ultimate determination of the income alone would decide the grant of relief under Section 163A. True that the dictum of the High Court of Delhi in **Rukmani Devi** supra, fortifies the argument advanced by the learned counsel for the petitioners but in view of the dictum laid down by the Division Bench of this Court on the contrary in **National Insurance Company** supra, this Court is bound to hold otherwise. 6. In the claim petition preferred originally under Section 166 M.V. Act the 3[rd] respondent had filed a written statement contending that the negligence alleged on the part of the ## **MACA.No.1004 OF 2016(E)** ## **-:9:-** respondent, the driver of the KSRTC bus is incorrect, that negligence on the part of the deceased was the cause of accident, that the claimants are not entitled to get compensation for the fault of the deceased and that the investigation by the police culminated in a finding that the 1[st] respondent was not negligent, followed by filing of a refer report. The Tribunal though had allowed the application seeking amendment and substituted the monthly income as Rs.3,300/- in the place of Rs.12,000/-, while considering the issues, the Tribunal had held in the following manner: “According to the claimant, the deceased was a driver by profession having an age of 35 years with a monthly income at the rate of Rs.3,300/-. Since the accident occurred in the year 2012, in the absence of any kind of deformity on the deceased till his death, he can be considered as an able bodied person having an age of 35 years at the time of his death. So his notional income for a month can be calculated to the tune of Rs.400/- per day for 15 days. If that be so, his annual income would be Rs.72,000/- As per the schedule attached to Section 163A of the M.V Act, maximum annual income that can be taken for computing compensation is Rs.40,000/-. Since the injured comes under the age group of above 36 years having monthly income of Rs.40,000/- by virtue of the schedule an amount of Rs.6,00,000/can be fixed as compensation.” ## **MACA.No.1004 OF 2016(E)** ## **-:10:-** 7. Actually the Tribunal has taken the daily income of the deceased as Rs.400/-. Considering the actual days of work the deceased gets in a month as 15 days, the Tribunal has arrived at Rs.72,000/- as the annual income. Evenafter fixing the annual income as Rs.72,000/-, the Tribunal went on to assess the compensation payable to the petitioners under Section 163A. The petitioners cannot raise a claim for compensation under Section 163A M.V. Act for the death of their near one, whose annual income is above Rs.40,000/-. In the case on hand the Tribunal has arrived at the annual income of the deceased as Rs.72,000/- and then proceeded to calculate compensation payable to the petitioners under Section 163 A M.V. Act. When the deceased has an annual income above Rs.40,000/- the Second Schedule will not permit his legal heirs to raise a claim for compensation under Section 163A of the Act. The Tribunal therefore has gone wrong in arriving at Rs.4,10,000/- as compensation payable even after entering into a finding that the deceased had annual income of Rs.72,000/-. 8. Even if the Tribunal has passed an award on the basis of the monthly income got amended as Rs.3,300/-, the Tribunal will ## **MACA.No.1004 OF 2016(E)** ## **-:11:-** not be justified in doing so in the backdrop of the dictum laid down by the Division Bench in **National Insurance Company** supra. In the above circumstances, the award passed by the Tribunal will not sustain legally and is liable to be set aside. The appeal succeeds for the reason. The Tribunal is erred in amending the monthly income as Rs.3,300/- and changing the provision seeking compensation as Section 163A. In view of **National Insurance Company** supra the Tribunal ought not to have allowed the amendment seeking to modify the monthly income from the originally claimed one and to fix the compensation on its basis under Section 163A of the M.V Act. 9. Instead of relying on the amended monthly income, the Tribunal has gone one step further by taking Rs.400/- as the daily wage the deceased was getting and taking only 15 days as the number of days of work he gets in a month. Even in that calculation, the annual income of the deceased would come above Rs.40,000/-. Therefore, the Tribunal is perfectly unjustified in treating the claim petition maintainable under Section 163A, overlooking the factum that the upper limit of annual income fixed by the structured formula in the second ## **MACA.No.1004 OF 2016(E)** ## **-:12:-** Schedule for maintaining a claim under Section 163A is Rs.40,000/-. In the light of the discussion made hereinabove, this Court has no hesitation to hold that the impugned award will not sustain. In the result, MACA is allowed. The amendment allowed by the Tribunal as well as the award passed by it suffer for the reasons stated above and are set aside. The claim petition originally having been preferred by the petitioners under Section 166 M.V. Act and the negligence on the 1[st] respondent, not determined by the Tribunal, it is expedient in the interest of justice to reconsider the claim of the petitioners for compensation under Section 166 M.V. Act. For the purpose, O.P.(MV) No.1604/2013 is remanded and restored to the files of the Tribunal for consideration of compensation, if any, payable to the petitioners under Section 166 M.V. Act. ## **MARY JOSEPH, JUDGE** ttb