Subhadra and Saritha v. Kumar P.K., Ajithkumanan, The National Insurance Co. Ltd., Assistant Engineer PWD Roads Section Kodakkara, Raveendranathan, State represented by District Collector, Thrissur

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 MACA NO. 1224 OF 2009 ``` ``` AGAINST THE AWARD DATED 12.11.2008 IN OP(MV) 489/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA ``` ## **`APPELLANT/PETITIONERS IN OP(MV):`** ``` 1SUBHADRA W/O KADASSERY BALAN MURIYAD VILLAGE AND DESOM AND P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ``` 2SARITHA D/O.KADASSERY BALAN MURIYAD VILLAGE AND DESOM AND P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS IN OP(MV):`** - `1 KUMARAN P.K. S/O PALLATHEY KOCHUKUTTAN 16/D, MATTATHURKUNNU P.O, KODAKARA.` - `2 AJITHKUMARAN, S/O.ODATHIL KUMARAN P.O.KODAKARA.` - `3 THE NATIONAL INSURANCE CO.LTD. MALIEKKAL BUILDINGS, MAIN ROAD, IRINJALAKUDA.` - `4 ASSISTANT ENGINEER PWD ROADS SECTION KODAKARA, PUDUKKAD P.O.` ``` 5RAVEENDRANATHAN S/O.PUTHANANGATTIL APPU, KOLAZHY DESOM, KUTTUR P.O. ``` ``` MACA NO. 1224 OF 2009 ``` ``` 2 ``` ``` 6STATE, REPRESENTED BY DISTRICT COLLECTOR, THRISSUR. ``` ``` BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE GOVERNMENT PLEADER GP- ADV JACOB E SIMON ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1224 OF 2009 ``` ``` 3 ``` ## **`JUDGMENT`** The appellants are the petitioners in O.P.(M.V.) No.489/2004 on the files of the Motor Accident Claims Tribunal, Irinjalakuada. The said claim petition was submitted by them seeking compensation for the death of one Balan in a motor accident that occurred on 14.03.2004. 2. The claim petition was submitted under Section 163A of the Motor Vehicles Act. According to the appellants, when the deceased Balan was attempting to getting into the bus bearing Registration No.KL 8 M 5925 at Muriyad Junction, a road roller bearing RRJ 4550 driven by the 5[th] respondent in a rash and negligent manner hit the deceased. The 1[st] respondent was the owner and, the 2[nd] respondent was the driver, and the 3[rd] respondent was the insurer of the said bus. The road roller belongs to the Public Works Department of Kerala State. The 4[th] respondent was the Assistant Engineer, PWD, Roads Section, and the 5[th] respondent was the driver of the road roller. The State represented by the 6[th] respondent was the owner of the road roller. The claim petition was ``` MACA NO. 1224 OF 2009 ``` ``` 4 ``` submitted in such circumstances. 3. The respondents 1 and 2, even though entered appearance, did not file written statements. The 3[rd] respondent filed a written statement admitting insurance coverage of the bus but contending that the accident occurred due to the rashness and negligence on the part of the driver of the road roller. The 5[th] respondent filed a written statement denying the allegations of rashness and negligence on his part, and it was contended that if at all he is found liable, the compensation has to be paid by the 6[th] respondent. The 4[th] and 6[th] respondents filed a joint written statement admitting the accident but disputing the negligence on the part of the 5[th] respondent. 4. The evidence in this case consists of Exts.A1 to A4 from the side of the appellants. From the side of the respondents, Exts.B1 to B3 were marked. After appreciating the materials, the Tribunal found that the accident occurred due to the negligence of the driver of the road roller; therefore, respondents 4 to 6 were jointly and severally held liable to pay the compensation. The ``` MACA NO. 1224 OF 2009 ``` ``` 5 ``` quantum of compensation was fixed as Rs.1,85,500/- and the 6[th] respondent was directed to deposit the said amount with interest @ 7% per annum from the date of petition till realisation. This appeal is submitted by the appellants in such circumstances as being dissatisfied with the quantum of compensation. 5. Heard Sri.P.V. Baby, learned counsel appearing for the appellants, Smt.Deepa George, appearing for the 3[rd] respondent Insurance Company Sri.Jacob E. Simon, learned Government Pleader appearing for respondents 4 and 6. 6. While considering the appeal, the crucial question that arises is the maintainability of the claim petition under Section 163 A of the Motor Vehicles Act. Evidently, the monthly income of the deceased, as claimed in the claim petition, was Rs.4,500/- which was above the ceiling fixed as per the Second Schedule of the Motor Vehicles Act, 1988 (prior to amendment). It is a well settled position of law that the structured formula contemplated under Section 163 A of the Motor Vehicles Act is a part of social security intended for the benefit of persons with low income and a person ``` MACA NO. 1224 OF 2009 ``` ``` 6 ``` drawing annual income more than Rs.40,000/- cannot avail the benefit of the said provision. Therefore, it is evident that the Tribunal should not have considered the matter under Section 163A of the Motor Vehicles Act due to the aforesaid reason. However, merely because of that reason, the claim petition submitted by the appellants cannot be rejected, and it cannot be held that the Tribunal ought not have entertained the claim petition as such. The proper course of remedy to be adopted in such cases is well settled by the decision by this Court in **National Insurance Co. Ltd., Kottayam v. Aravindakshan** [2016 (2) KLT 711]. In the said decision, after referring to the decision rendered by the hon’ble Supreme Court in **Deepal Girishbhai Soni & Ors. v. United India Insurance Co. Ltd., Baroda** [(2004) 5 SCC 385], it was held that, in such circumstances, the Tribunal can consider the claim under Section 166 of the Motor Vehicles Act, and determine the liability after adjudicating the question of negligence. The relevant observations **Aravindan’s** case are as made by this Court after referring to follows: ``` MACA NO. 1224 OF 2009 ``` ``` 7 ``` “4. The submission made by the learned Sr. Counsel for the appellant is that the benefit of S.163A under the 2[nd] Schedule is intended only for the particular class /group, whose maximum income is upto Rs.40,000/- per annum. It is also pointed out that the annual income, if higher, cannot be restricted by fixing a cap or ceiling, to claim the benefit under S.163A of the Motor Vehicles Act, where there is no burden upon the party to plead or prove negligence. The scheme / procedure contemplated is to provide the benefit by way of a 'structured formula' to the deserving lot and that alone. This Court finds considerable force in the said submission. The scope of the said provision (S.163A) has been explained by the Supreme Court as per the decision in 2004 (2) KLT 395, 2004 KHC 595 : 2004 (5) SCC 385 : AIR 2004 SC 2107 (Deepal Girishbhai Soni v. United India Insurance Co. Ltd). The relevant portion as discussed in paragraph 67 is in the following terms: "67. We, therefore, are of the opinion that Kodola (supra) has correctly been decided. However, we do not agree with the findings in Kodola (supra) that if a person invokes provisions of S.163A, the annual income of Rs.40,000/- per annual shall be treated as a cap. In our opinion, the proceedings under S.163A being a social ``` MACA NO. 1224 OF 2009 ``` ``` 8 ``` security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act." 5. From the above, it is clear that the parties before the Tribunal cannot seek to fix a cap or ceiling to the monthly income, so as to bring it down, to be dealt with under S.163A, if the actual income is higher than the maximum limit. In the instant case, based on the materials on record, the Tribunal has fixed the monthly income as Rs.5,000/- i.e., with the annual income of Rs.60,000/-. As such, the claim is not actually maintainable under S.163A. 6. A question arises as to the further course of action. If the claim is not maintainable under S.163A, the party is still at liberty to have the negligence on the part of the concerned party pleaded and proved, seeking to sustain the claim based on the 'principle of fault', in terms of S.166 of the Motor Vehicles Act. Whether the matter requires to be remanded is the point to be considered. 7. As mentioned above, based on the pleadings and evidence let in, the Tribunal has already considered the ``` MACA NO. 1224 OF 2009 ``` ``` 9 ``` matter with reference to negligence and it was accordingly, that a clear finding was rendered in the award that the accident was solely because of negligence of the driver of the car. This being the position, the aspect of negligence having been established and a finding in this regard having been rendered, there was no obligation for the claimants to have pleaded or proved negligence [though the claim petition was preferred under S.163A], if the claim was otherwise maintainable. The purpose of the remand, if at all any, is only to cause consideration of the claim with reference to the 'principle of fault' under S.166 of the Motor Vehicles Act. The said course has already been pursued by the Tribunal, though the claim was preferred under S.163A, and a finding has been rendered accordingly with reference to negligence, which supports the cause projected by the claimants. Since such a finding on fact has been rendered fixing negligence upon the first respondent before the Tribunal, in turn fixing the liability upon the shoulders of the Insurance Company, no other purpose is to be served by causing such a remand.” In the said decision, a Division Bench of this Court specifically considered the question whether, upon finding that the annual income was more than Rs 40,000/-, the matter is to be remanded ``` MACA NO. 1224 OF 2009 ``` ``` 10 ``` back to the Tribunal or not. It was observed that, since, in that case, the Tribunal already adjudicated the question of negligence in the award, a remand is not necessary. Therefore, the quantification made in the award was upheld. In another decision rendered by a Division Bench of this Court in **Sumathy Amma and Others v. Babu and Others** [2018 KHC 7529 : 2018 ACJ 2147], wherein after referring to **Aravindakshan’s** case, this Court after finding that the claim petition under Section 163 A is not maintainable, proceeded to determine the quantum of compensation by treating it as a claim under Section 166 of the Motor Vehicles Act. 7. In the light of the principles laid down in the decision referred to above, I am of the view that, even though the claim petition under Section 163 A was not maintainable in this case, the same can be considered as a petition under Section 166 of the Motor Vehicles Act and determine the quantum of compensation by applying the principles related to the determination of the compensation under a petition under Section 166 of the Motor Vehicles Act. ``` MACA NO. 1224 OF 2009 ``` ``` 11 ``` 8. As rightly pointed out by the learned counsel for the appellants, even after finding that there is no necessity to answer the question of rashness and negligence in a claim petition under Section 163 A of the Motor Vehicles Act, the Tribunal proceeded to adjudicate the said question after referring to the evidence adduced on record. As found by the Tribunal, the Police report, which is produced as Ext.A2, is against the 5[th] respondent, the driver of the road roller. After discussing the evidence on record, the Tribunal entered a categorical finding, holding that the accident occurred due to the negligence on the part of the 5[th] respondent. It is discernible from the records that the bus involved in the accident was stationary at the relevant time, and it was hit by the road roller. The deceased got stuck in between the bus and the road roller, and the injuries were sustained accordingly. Thus, it is evident that the accident occurred due to the negligence on the part of the 5[th] respondent. 9. As held in **Aravindakshan ’s** case, since the question of negligence has already been decided by the Tribunal, it is not ``` MACA NO. 1224 OF 2009 ``` ``` 12 ``` necessary to remand the matter back for the purpose of considering the said question. 10. When moving on to the question of the quantum of compensation, it is seen that, for the purpose of computing compensation, the Tribunal fixed the monthly income as Rs.2,000/by scaling it down. Of course, it is true that even though an amount of Rs.4,500/- was claimed as the monthly income, absolutely no evidence was adduced by the appellants. But, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], in the case of a coolie, the monthly income was fixed as Rs.4,500/- in respect of an accident that occurred in the year 2004. In this case, the accident occurred in the year 2004 and therefore, an amount of Rs.4,500/- can be taken as the monthly income. In the light of the principles laid down in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], 10% of the monthly income can be added towards future prospects, as the deceased was aged 54 years at the time of the accident. Thus, while reassessing the quantum of compensation for ``` MACA NO. 1224 OF 2009 ``` ``` 13 ``` disability with the above criteria, the amount would come to Rs.4,35,600/- [(4500 + 10%) x 12 x 11 x 2/3]. After deducting Rs.1,76,000/- already awarded by the Tribunal under this head, the additional amount would come to Rs.2,59,600/-. 11. With regard to the compensation awarded by the Tribunal under the other heads, the Tribunal followed the structured formula as contemplated under the Second Schedule of the Motor Vehicles Act. Since it is already held that the application under Section 163A is not maintainable, and the application has to be considered under Section 166 of the Motor Vehicles Act, it is not necessary that the compensation be confined to the method of computation as contemplated under the Second Schedule of the Motor Vehicles Act. The position of law is very clear from the decision rendered by this Court in **Sumathy Amma’s** case (supra). Therefore, the compensation under the other heads can be considered by treating the application as under Section 166 of the Motor Vehicles Act. 12. Thus, it is seen that the amount granted as compensation ``` MACA NO. 1224 OF 2009 ``` ``` 14 ``` for the loss of consortium was only Rs.5,000/- whereas the actual entitlement of the appellants in the light of the principles laid down in **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760], is Rs.40,000/each to both the appellants, thereby the appellants are entitled to an additional sum of Rs.75,000/- under this head (80000 - 5000). The amount awarded under the head of funeral expenses is only Rs.2,000/-, whereas they are entitled to 15,000/- as per the decision case. rendered by this Hon’ble Supreme Court in **Pranay Sethi’s** Thus, they are entitled for a further sum of Rs.13,000/- under this head. Similarly, the amount awarded under the head of loss of estate was only Rs.2,500/- and therefore, a further sum of Rs.12,500/- is to be granted under this head. Thus, the total compensation receivable by the appellants, in addition to the amount already awarded by the Tribunal, is determined as Rs.3,60,100/- (2,59,600 + 75,000 + 13,000 + 12,500). Thus, in the light of the above observations and findings, the award dated 12.11.2008 in O.P.(M.V.) No.489/2004 passed by the ``` MACA NO. 1224 OF 2009 ``` ``` 15 ``` Motor Accident Claims Tribunal, Irinjalakuda is modified by granting an additional compensation of Rs.3,60,100/- (Rupees three lakh sixty thousand and one hundred only) and the 6[th] respondent is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal within a period of three months from the date of receipt of a copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs