New India Assurance Company Limited v. Mubeena and Rehim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** **MACA.No. 954 of 2013** **AGAINST THE AWARD IN OPMV 1287/2005 of M.A.C.T.,ATTINGAL** **DATED 18-04-2012** ## **APPELLANT/5TH RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LIMITED ATTINGAL, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONERS:** **1 MUBEENA W/O.REHIM, CHARUVILA VEEDU, ERUNUTTY, VATTATHAMARA.P.O., KUMMIL VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-695 320. 2 REHIM CHARUVILA VEEDU, ERUNUTTY, VATTATHAMARA.P.O., KUMMIL VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-695 320.** **BY ADVS.SRI.PRATHAP PILLAI MRS.S.SREELAKSHMY SRI.C.R.SIVAKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 954 of 2013** **2** ## JUDGMENT This appeal is directed against the award dated 18.04.2012 of the Motor Accident Claims Tribunal, Attingal (for short 'the Tribunal') in O.P.(MV) No.1287/2005. The appellant is the 5[th] respondent before the Tribunal. 2. The claim petition was filed before the Tribunal by the parents of a minor girl named Jasmin, aged 7 years, seeking for a sum of Rs.2,00,000/- as compensation for her death in a motor accident occurred on 30.07.2005. On the fateful day, the minor girl was travelling in a private stage carriage bus bearing registration No.KL-7D-2745 through Tholikuzhy-Kallara public road. When she was alighting from the bus at her place of destination, the 4[th] respondent cleaner rang the bell negligently and carelessly, thereby the 2[nd] respondent driver moved the vehicle ahead causing her fall from the bus on the road through its front door. The rear wheel of the bus ran over her body and thus she succumbed to death. Alleging that the registered owner, driver, conductor, cleaner and insurer of the bus are jointly and **MACA.No. 954 of 2013** **3** severally liable to pay compensation of Rs.2,00,000/- for the loss caused due to her death, the claim petition as referred to above was preferred by her parents before the Tribunal. The 5[th] respondent filed written statement before the Tribunal admitting insurance coverage of the Stage Carriage bearing registration No.KL-7D-2745 as on date of accident. 3. The claim petition was tried by the Tribunal. On the side of the petitioners, documentary evidence alone was adduced as Exts.A1 to A7. The 5[th] respondent insurer did not adduce any evidence. The Tribunal on appreciation of evidence had found the driver of the stage carriage, responsible for the accident by his rash and negligent driving. The Tribunal found the petitioners entitled to get compensation and arrived at the same as Rs.1,85,000/- and directed the 5[th] respondent to deposit the said sum with interest at the rate of 7.5% per annum from the date of the claim petition till the date of realisation within 60 days from the date of passing of the impugned award. The Tribunal had also directed the 5[th] respondent to pay penal interest at the rate of 12% per annum on default of payment of compensation within **MACA.No. 954 of 2013** **4** the time stipulated by it. 4. The grievance of the learned Senior Counsel Sri.Mathews Jacob was that compensation as awarded by the Tribunal had already been satisfied by the insurer by depositing the amount. But, the Tribunal reviewed the award thereafter _suo motu_ on 03.07.2012 in exercise of its power of review. It is contended by the learned counsel that though the Tribunal is empowered by the Act to exercise the power of review, it is unjustified in doing so after satisfying the award in full by the insurer without a notice being served on them. According to the learned counsel, the power of review is not an inherent power and it is meant to be exercised by the Tribunal in accordance with law. The counsel has also pointed out that the power of review was exercised by the Tribunal _suo motu_ and not on application by any of the parties before the Tribunal. It is also contended in the appeal that the deceased being a minor girl aged 7 years, the correct multiplier ought to have been adopted by the Tribunal is 15, instead of 18 taken by it. Lastly and finally it was contended by the learned counsel that granting of 12% penal interest, on failure of the 5[th] **MACA.No. 954 of 2013** **5** respondent to satisfy the award within the time granted, is illegal and impracticable. Raising contentions as aforesaid, the learned counsel pleaded for re-visitation of the award on those counts. 5. Sri.C.R.Sivakumar, the learned counsel on behalf of the petitioners, the respondents herein, has contended that the Tribunal cannot be found fault with in exercising the power of review as it was done only to correct certain mistakes crept into the award due to oversight. According to him, the Tribunal in exercise of the power of review, made the compensation just and reasonable by granting a sum of Rs.33,500/- over and above the sum originally awarded by it. According to him, Section 169 of the Motor Vehicles Act, 1988 (for short' the MV Act') confers on the Tribunal the power of review and this Court will not be justified in interfering with the legal exercise of that power and grant of compensation additionally. According to him, noticing the amount awarded as unjust and unreasonable, to make it just and reasonable that the Tribunal had exercised the power of review _suo motu_ . Accordingly, he pleaded for non-interference **MACA.No. 954 of 2013** **6** with the impugned award and dismissal of the appeal. 6. On a glance at the impugned award it is revealed that the Tribunal had originally arrived at a total sum of Rs.1,85,500/as compensation payable to petitioners and the 5[th] respondent insurer was directed to deposit the same with interest at the rate of 7.5% per annum, from the date of the petition till the date of realisation in favour of petitioners within 60 days from the date of passing of the award. The aforesaid award was passed on 18.04.2012. It is submitted before this Court by the learned counsel for the appellant that the amount awarded was satisfied by them on 11.06.2012 regarding which no dispute was raised by the petitioners. It is pertinent to note from the impugned award that on 03.07.2012, in exercise of the power of review, the Tribunal had substituted the multiplier 18 in the place of 15 adopted by it originally and refixed the compensation payable under the head loss of dependency as Rs.1,80,000/-. There was no challenge by the petitioners on Rs.1,50,000/-, the sum originally arrived at as compensation under that head, but the Tribunal on its own refixed the same to a higher sum by adopting **MACA.No. 954 of 2013** **7** a wrong multiplier and without serving any notice on them and hearing them. 7. The question relevant for consideration is whether the power of review could be exercised after reach of full and final satisfaction of the award and when none of the parties have applied for review of the award. In the case on hand the power of review was exercised by the Tribunal after deposit of the awarded amount being made and without putting the parties to notice. Therefore, the Tribunal is undoubtedly unjustified in doing so. The claim petition in the case on hand was filed by the parents of the minor girl seeking compensation for her death in a motor accident. The girl being aged 7 years at the relevant time, the Tribunal is perfectly justified in fixing the multiplicand as Rs.15,000/-. There cannot be any dispute that the multiplier appropriate to the age of 7 years is 15. The Tribunal in exercise of the power _suo motu_ has substituted the wrong multiplier of 18 in the place of 15. The reason for review was stated by the Tribunal as its dissatisfaction in mind that Rs.1,85,500/- arrived at as total compensation originally was not just and reasonable. **MACA.No. 954 of 2013** **8** It is true that M.V. Act being a welfare legislation, the parties approaching the Tribunal either as injured or dependants of deceased in motor accident need to be compensated by the Tribunal reasonably and adequately. The compensation must be just and reasonable one. But the Tribunal cannot adopt a higher multiplier, not relevant to the age of the deceased, illegally and grant compensation to its whims and fancies. The multiplier of 18 adopted by the Tribunal in exercise of the power of review, is inappropriate to the age of the victim, who was aged only 7 years at the relevant time of accident. 15 being the multiplier appropriate to the age of the deceased, the re-fixation of compensation by adopting 18 as the multiplier in exercise of the power of review is incorrect, improper and illegal. 8. It is pertinent to note from the impugned award that compensation have been granted to the petitioners under various heads in the following manner : |Sl.<br>No.|Head of claim|Amount<br>claimed (in<br>Rupees)|Amount<br>awarded (in<br>Rupees)|Basis-vital details<br>in a nut shell| |---|---|---|---|---| |**Part-I**||||| |1|Loss of earning|Nil|Nil|The<br>deceased<br>child was aged 7| **MACA.No. 954 of 2013** **9** |||||years| |---|---|---|---|---| |2|Partial loss of earning|Nil|Nil|The<br>deceased<br>child was aged 7<br>years| |3|Transportation to the<br>hospital|2000|1000|Probable amount| |4|Extra nourishment|Nil|Nil|Instantaneous<br>death| |5|Damages to clothing<br>and articles|1000|1000|Probable amount| |Others||||| |6|Medical and funeral<br>expenses|5000|5000|Amount applied<br>for granted| |**Part-II**||||| |7|Compensation for pain<br>and suffering|25000|Nil|Instantaneous<br>death| |8|Compensation for loss of<br>dependency rooted in<br>future|150000|152000|| |9|Compensation for loss of<br>love and affection|No<br>Separate<br>amount<br>claimed|20000|Probable amount| |10|Loss of estate|50000|6500|Probable amount| |**TOTAL**||**233000**|185000|| |**(Claim limited to Rs.2,00,000/- only)**||||| 9. The sums awarded as compensation under the conventional heads of loss of estate and funeral expenses were not in accordance with the sums fixed by the Constitutional Bench of the Apex Court in **National Insurance Co.Ltd. v. Pranay** **MACA.No. 954 of 2013** **10** **Sethi** [2017 (4) KLT 662(SC)]. The victim being the only daughter, it is unjust to deny the petitioners with compensation under the head parental consortium. The deceased being survived by her father and mother, in view of **Pranay Sethi** 's case (supra), this Court finds every justification in awarding Rs.40,000/- each to them under that head. The compensation awarded by the Tribunal under the heads funeral expenses and loss of estate respectively being Rs.5,000/- and Rs.6,500/-, grant of Rs.10,000/- and Rs.8,500/- respectively under each head would make it reasonable compensation as fixed by the constitutional Bench of the Apex Court in **Pranay Sethi** 's case (supra). 10. The adoption of multiplier of 18 in the place of 15 and re-fixation of compensation by the Tribunal for loss of dependency, on its basis in exercise of the power of review, is set aside being illegal, improper and incorrect. Since it is noticed that the petitioners have not been compensated reasonably under certain heads in view of **Pranay Sethi** 's case (supra), this Court is inclined to interfere with the compensation awarded by the **MACA.No. 954 of 2013** **11** Tribunal under those heads as discussed above. 11. In re-fixation of compensation in the manner stated above, this Court finds justification in maintaining Rs.33,500/awarded by the Tribunal under heads other than loss of dependency. 15 being the appropriate multiplier, the compensation payable under the head loss of dependency will be Rs.1,50,000/- [(15,000 x 15) - 1/3[rd] ]. Therefore, Rs.30,000/- is liable to be deducted from Rs.1,80,000/-[(15,000 x 18) - 1/3[rd] ], the sum arrived at as compensation under that head in exercise of the power of review. This Court has found entitlement for the petitioners to get additional compensation under the conventional heads of parental consortium, loss of estate and funeral expenses. A sum of Rs.98,500/- (40,000+40,000+10,000+ 8,500) is arrived at as payable additionally under those heads. The compensation already awarded under various heads other than loss of dependency are maintained. Therefore, the petitioners will be entitled to get a total sum of Rs.2,82,000/(1,50,000+98,500+1,000+1,000+5,000+20,000+6,500). The total sum as aforesaid will carry interest at the rate of 8% per **MACA.No. 954 of 2013** **12** annum, from the date of the claim petition till the date of realisation. The direction to pay penal interest at the rate of 12% per annum being unjust is set aside. The 5[th] respondent shall deposit **Rs.2,82,000/- (Rupees two lakhs eighty two thousand only)** with interest at the rate of 8% per annum from the date of the claim petition till the date of realisation within two months from the date of receipt of a copy of this judgment. No order as to costs. **Sd/-** **MARY JOSEPH JUDGE** ttb