Nizar and Hyrunneesa and Muhammed Adhil (Minor) v The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 17TH DAY OF MARCH 2016/27TH PHALGUNA, 1937** ## **MACA.No. 1971 of 2014 ()** **------------------------AGAINST THE AWARD IN OPMV 1457/2006 of M.A.C.T., KOZHIKODE DATED 11.11.2009** ## **APPELLANTS/PETITIONERS:-:** **-------------------------------------** ## **1. NIZAR,** **S/O.KUNHAMMED, AGED 43 YEARS.** ## **2. HYRUNNEESA,** **W/O.NIZAR, AGED 35 YEARS,** **3. MUHAMMED ADHIL (MINOR), AGED 13 YEARS, S/O.NIZAR, REPRESENTED BY HIS FATHER AND LEGAL GUARDIAN NIZAR.** **ALL ARE RESIDING AT PADINHARAYIL, VALLIL VEEDU, PALLIKKARA POST, PAYYOLI, KOZHIKODE.** ## **BY ADVS.SRI.AVM.SALAHUDDEEN SMT.EMIL STANLEY** ## **RESPONDENT(S)/3RD RESPONDENT:-:** **-------------------------------** **THE NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, SILVER PLAZA BUILDINGS, I G ROAD, KOZHIKODE - 673 001.** **R1 BY ADV. SRI.VIJU THOMAS R1 BY ADV. SMT.M.MEENA JOHN R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA.No. 1971 of 2014 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **ANNEXURE A1 : MEMO DATED 27/05/2014 ISSUED TO THE SANTHOSH KUMAR K.P. (ADVOCATE-CLERK) BY ADV.RASHMI K.V., PARTNER, BELVERDIA LEGAL L.L.P.** **ANNEXURE A2 : EXPLANATION DATED 30/05/2014 GIVEN BY SANTHOSH KUMAR K.P TO ADV.RASHMI K.V.** **ANNEXURE A3 : THE NOTICE ISSUED BY ADV.RASHMI TO ADV.ANIL THOMAS, SR.PARTNER BELVERDIA LEGAL L.L.P, COCHIN, WITH A REQUEST TO CONDUCT ENQUIRY AGAINST THE ADVOCATE CLERK** **ANNEXURE A4 : NOTICE DATED 03/06/2014 ISSUED TO THE SANTHOSH KUMAR K.P, ADVOCATE-CLERK SUSPENDING HIM BY THE ADV.ANIL THOMAS, SR.PARTNER BELVERDIA LEGAL L.L.P, COCHIN** **ANNEXURE A5 : LETTER DATED 04/06/2014 TO THE REGISTRAR GENERAL, HIGH COURT OF KERALA BY THE ADV.ANIL THOMAS, SR.PARTNER BELVERDIA LEGAL L.L.P, COCHIN, INFORMING THE SUSPENSION OF THE CLERK AND REQUESTING TO TAKE APPROPRIATE ACTION AGAINST THE ADVOCATE-CLERK WHO COMMITTED DERELICTION OF DUTY.** ## **ANNEXURE A6 : AFFIDAVIT OF THE LAWYER AT TRIBUNAL** ## **RESPONDENTS' ANNEXURES : NIL** ## **/TRUE COPY/** ## **P.A TO JUDGE** **dlk** ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** ## **--------------------------------------M.A.C.A.No.1971 of 2014 --------------------------------------------------Dated this the 17[th] day of March, 2016.** ## **J U D G M E N T** ## Anil K.Narendran, J. The appeal is for enhancement of the compensation awarded by the Tribunal in respect of death, pursuant to the road traffic accident occurred on 30.04.2006. 2. The factual position revealed from the proceedings is that, the deceased in O.P.(M.V.)No.1457/2006 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode along with others were travelling in an autorickshaw bearing No.KL-18-1333 and while so, when the autorickshaw reached the place of occurrence, a lorry bearing No.KL-11/A-6887 hit the same, causing serious injuries leading to his death, which led to the claim petition filed by his legal heirs before the Tribunal seeking to compensate the loss. The legal heirs of the other passengers who died in the accident and those injured filed separate claim petitions and they were tried and disposed of together by the Tribunal. 3. The matter was contested by the 3[rd] respondent insurer. The nature of contention raised by the respondent Insurance Company was mainly on quantum/negligence. 4. The evidence adduced before the Tribunal consists of 2 M.A.C.A.No.1971 of 2014 documents marked as Exts.A1 to A34 on the side of the claimants. The respondents have not chosen to adduce any oral or documentary evidence. 5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred solely because of the negligence on the part of the driver of the lorry and proceeded to fix the compensation accordingly. 6. Coming to the quantum of compensation payable, the deceased was an infant aged 2 years. Awarding amounts under different heads, the total compensation was fixed as 70,000/-,₹ which was directed to be satisfied with interest @ 7% per annum. The liability was accordingly mulcted upon the shoulders of the 3[rd] respondent Insurance Company. 7. Inadequacy of the compensation awarded, is the subject matter of challenge in this appeal. 8. Heard the learned counsel for the appellants as well as the learned counsel for the respondent insurer. 9. At the time of accident, the deceased was aged 2 years. Since the deceased was an infant, the Tribunal awarded a consolidated amount of 50,000/- towards loss of dependency. In₹ addition to the aforesaid amount, the Tribunal has awarded 1,500/-₹ towards transport to hospital, 500/- towards damage to clothing, ₹ ₹ 3,000/- towards funeral expenses and 15,000/- towards loss of love₹ M.A.C.A.No.1971 of 2014 3 and affection. 10. We notice that in _**Puttamma v. K.L.Narayana Reddy (2013 (15) SCC 45)**_ , the Apex Court, in the context of Section 163 A of the Act, considered the applicability of the Second Schedule of the Motor Vehicles Act in the present scenario and observed that, the Second Schedule which was enacted in the year 1994 has now become redundant, irrational and unworkable, due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy. Accordingly, the Apex Court directed the Central Government to make proper amendments to the Second Schedule table keeping in view the present cost of living, subject to the amendment of Second Schedule as proposed or made by the Parliament. The Apex Court directed further that, till such amendment is made by the Central Government in exercise of power vested under sub-section (3) of Section 163A of the Act or amendment is made by the Parliament, children upto the age of 5 years shall be entitled for a fixed compensation of 1,00,000/- and₹ persons more than 5 years of age shall be entitled for fixed compensation of 1,50,000/- or the amount that may be determined₹ in terms of Second Schedule, whichever is higher and such amount is to be paid if any application is filed under Section 163A of the Act. Paras.53, 54, 57 and 58 of the judgment read thus: _“_ _**53.** Considering the current trend of inflation cost of_ M.A.C.A.No.1971 of 2014 4 _food grains and all other items, Mr. P.P. Malhotra, Senior Advocate, Amicus Curiae submitted that for just compensation the multiplier should be enhanced to 24-25 years. Further, according to him, while calculating the compensation, the amount payable towards dependency should be increased as the life expectancy is upto 70-75 years and secondly after 10 years of earning capacity it should be doubled in view of escalation of cost of living and progressive increase in the income. Keeping in view the cost of living, the Central Government is required to amend the Second Schedule [See S.163A(3)]. The Second Schedule was enacted by Act 54 of 1994 w.e.f. 14.11.1994. Now more than 19 years have passed but no amendment has been made. Cost of living has gone up manifolds._ _**54.** In view of finding recorded above, we hold that Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable, due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy._ _**55.** xxx xxx xxx_ _**56.** xxx xxx xxx_ _**57.** From the proposed Bill we find that there is a proposal to change the multiplier applicable for different age groups; it does not contemplate schedule structure of compensation. The factors to be considered for working out compensation are (a) age of the victim (b) multiplier (c) annual income up to_ ₹ _1,00,000/- (the maximum annual income for calculation of compensation will be deemed to be_ ₹ _1,00,000/-even if the income exceeds_ ₹ _1,00,000/-). Separate provisions have been made for grievous injury and non-grievous injury etc._ _**58.** The Central Government was bestowed with duties to amend the Second Schedule in view of S.163-A(3),_ M.A.C.A.No.1971 of 2014 5 _but it failed to do so for 19 years in spite of repeated observations of this Court. For the reasons recorded above, we deem it proper to issue specific direction to the Central Government through the Secretary, Ministry of Road Transport & Highways to make the proper amendments to the Second Schedule table keeping in view the present cost of living, subject to amendment of Second Schedule as proposed or may be made by the Parliament. Accordingly, we direct the Central Government to do so immediately. Till such amendment is made by the Central Government in exercise of power vested under sub-section (3) of S.163A of Act, 1988 or amendment is made by the Parliament, we hold and direct that for children upto the age of 5 years shall be entitled for fixed compensation of_ ₹ _1,00,000/-(Rupees one lakh) and persons more than 5 years of age shall be entitled for fixed compensation of_ ₹ _1,50,000/- (rupees one lakh and fifty thousand) or the amount may be determined in terms of Second Schedule whichever is higher. Such amount is to be paid if any application is filed under S.163-A of the Act, 1988.”_ ## 11. In _**Kumari Kiran v. Sajjan Sing and Others [2015 (1)**_ _**SCC 539]**_ , the Apex Court held that in the case of children, they cannot be treated as non-earning individuals and they have to be treated as separate persons where, instead of awarding compensation under pecuniary reasons, substantial amount should be awarded under non-pecuniary reasons. 12. In view of the above facts and circumstances, we find it appropriate to work out the compensation in the instant case by treating the figures given in the Second Schedule of the guidelines so as to the multiplier to be adopted and the notional income to be M.A.C.A.No.1971 of 2014 6 reckoned. On re-working the compensation as above, taking into account the notional income of the deceased as 15,000/- per₹ annum and after deducting 1/3[rd] towards probable personal expenses, the compensation payable for the death comes to ₹1,50,000/- (15,000x2/3x15). The Tribunal awarded an amount of ₹50,000/- towards dependency compensation. After deducting the aforesaid amount, the balance compensation payable under this head comes to **₹ 1,00,000/-** . 13. Towards funeral expenses, the Tribunal awarded a sum of ₹3,000/-. Similarly under the head loss of love and affection, the Tribunal awarded a further sum of 15,000/-. By virtue of the law₹ declared by the Apex Court in the decision reported in _**Rajesh v. Rajbirsingh [2013 (3) KLT 89]**_ , the amounts payable under the above heads are 25,000/- and 1,00,000/- respectively. The₹ ₹ accident in that case occurred in the year 2007, but in the instant case the accident is of the year 2006. Striking a balance, we find it appropriate to re-fix the compensation under this head as 20,000/-,₹ resulting an additional compensation of **₹ 17,000/** -. 14. Coming to the head love and affection, the scope of the above decision was considered by a Division Bench of this Court in the decision reported in _**Valsamma v. Binu Jose [2014 (1) KLT 10]**_ and it has been held that, it has to be with reference to the age of the deceased as well as the age of the claimants/beneficiaries. M.A.C.A.No.1971 of 2014 7 Since the accident is of the year 2006, the compensation payable under the head loss of love and affected is re-fixed as 80,000/-.₹ Since the Tribunal has awarded a sum of 15,000/-, the balance₹ compensation comes to **₹ 65,000/-** under this head. 15. The Tribunal awarded no compensation under the head loss of estate. Considering the facts and circumstances of the case, we deem it appropriate to grant **₹ 10,000/-** under this head. 16. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation, which requires no interference in this appeal. 17. In the result, the appellants will be entitled for an additional compensation of **₹ 1,92,000/-** (Rupees One lakh nintey two thousand only) along with interest at the rate of 9% per annum from the date of petition. As the insurance coverage of the vehicle in question is not in dispute, the 3[rd] respondent insurer shall deposit the additional compensation awarded in this appeal before the Tribunal along with interest at the earliest and at any rate within a period of one month from the date of receipt of a certified copy of the judgment. 18. However, we find that the appeal was filed with a petition to condone the delay of 1633 days. The said delay was condoned as per common order dated 28.01.2016 on condition that, if the appellants succeed in getting enhancement of the compensation, M.A.C.A.No.1971 of 2014 8 the appellants will not be entitled to get interest for the period covered by delay. Hence, it is made clear that the appellants will not be entitled to get interest for the aforesaid period and the liability of the respondent Insurance Company to satisfy the balance amount with interest will exclude the said period of delay. The appeal stands disposed of as above. ## Sd/- **P.R.RAMACHANDRA MENON JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** AV