Thami and others v. E.J. Shaji and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 26[TH] DAY OF MAY 2022 / 5TH JYAISHTA, 1944** ## **MACA NO. 426 OF 2007** **AGAINST THE ORDER/JUDGMENT IN OPMV 3074/2000 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **THRISSUR** ## **APPELLANTS/PETITIONERS:** |**1**|**THAMI, S/O. MULLIRUMBAN**| |---|---| |**2**|**NEELI, W/O.THAMI.**| |**3**|**MOHANDAS, S/O.THAMI.**| |**4**|**SWAPNA, D/O.THAMI.**| ||**ALL ARE RESIDING AT KARIMBANAYIL HOUSE, P.O.KOTHACHIRA, (VIA)**| ||**PERINGODE, PALAKKAD DISTRICT**| ||**BY ADVS.**| ||**SRI.V.CHITAMBARESH (SR.)**| ||**SRI.JIBU P THOMAS**| ||**SRI.T.C.SURESH MENON**| ||**SRI.SUNIL J.CHAKKALACKAL**| |**DENTS**|**/RESPONDENTS:**| |**1**|**E.J.SHAJI, S/O. JOSE, RESIDING AT**| ||**EDAPPULLY HOUSE, SENIOR GROUND, KUNNAMKULAM, THRISSUR.**| |**2**|**JAYAPRAKASH @ PRAKASAN, S/O.BALAN NAIR**| ||**RESIDING AT MADATHIL HOUSE, CHIRAMANANGAD, MARATHAMCODE, THRISSUR.**| ||**DIED LR'S IMPLEADED**| |**3**|**THE UNITED INDIA INSURANCE COMPANY**| ||**LIMITED, BRANCH OFFICE, ORISON COMPLEX, WADAKKANCHERRY ROAD,**| ||**KUNNAMKULAM, THRISSUR**| |***4**|**[BALAN NAIR, F/O JAYAPRAKASH @ PRAKASAN,**| ||**RESIDING AT MADATHIL HOUSE,**| ||**CHIRAMANANGAD, MARATHAMCODE P.O.**| ||**THRISSUR 680 604**| |***5**|**SAROJINI AMMA, M/O. JAYAPRAKASH @ PRAKASAN,**| ||**RESIDING AT MADATHIL HOUSE,**| ||**CHIRAMANANGAD, MARATHAMCODE P.O., THRISSUR 680 604**| ||***IMPLEADED AS ADDITIONAL RESPONDENTS 4 AND 5 IN THE APPEAL, AS THE**| ||**LEGAL REPRESENTATIVES OF THE DECEASED SECOND RESPONDENT AS PER ORDER**| ||**DATED 12.01.2022 IN I.A.No.1 OF 2020.]**| ||**BY ADV SRI.V.JAYAPRADEEP**| ## **RESPONDENTS/RESPONDENTS:** ## **OTHER PRESENT:** **SRI. V. JAYAPRADEEP - R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** ## **26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.426/2007 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.3074/2000 on the file of Motor Accidents Claims Tribunal, Thrissur (in short, the Tribunal). The claim petition has been filed by the legal heirs of deceased Gouridas under Section 163(A) of the Motor Vehicles Act, 1988 (in short, the Act) claiming a total compensation of Rs.3,00,000/- out of the death of deceased in a motor accident occurred on 19.07.2000 at about 10.45 pm while travelling in an autorickshaw bearing Reg.No.KL-8/D-6012 through Kunnamkulam – Kozhikode public road. It is alleged that while the vehicle reached at Kambipalam, the driver, second respondent, swerved the autorickshaw in a rash and negligent manner and hit against a lorry and thereby appellant and others sustained injuries. 2. It is alleged that the accident happened due to the rash and negligent driving of the second respondent. First MACA No.426/2007 3 respondent is the owner, and third respondent is the insurer. 3. Before the Tribunal respondents 1 & 2 remained ex parte. Third respondent filed written statement admitting the policy coverage with respect to the autorickshaw bearing Reg.No.KL-8/D-6012 owned by the first respondent. It is further contended that autorickshaw stands in the name of the second respondent and second respondent was not holding valid driving licence at the time of accident. So the third respondent is not liable to indemnify the second respondent as he has violated the conditions of insurance policy. 4. PW1 examined and Exts.A1 to A9 marked from the side of the appellants. Ext.B1 marked from the side of the third respondent. Tribunal on evaluating the evidence, facts and circumstances found that the appellants are entitled to get a total compensation of Rs.2,59,500/-. 5. During the pendency of the claim petition, I.A.No.7087/2004 was filed by the third respondent, insurer to direct the 2[nd] respondent to produce the vehicular records as MACA No.426/2007 4 such R.C. Book, permit, fitness certificate as well as his driving licence. 6. Tribunal ordered the second respondent to produce the documents as sought for. Though notice was duly served upon the second respondent he did not turn up and the documents were not produced. 7. Hence the Tribunal ordered 3[rd] respondent to pay the amount and permitted recovery from the second respondent. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants approached this Court in appeal for various grounds stated in the memorandum of appeal. 9. Adv. V. Jayapradeep appeared for the third respondent. Heard the learned counsel for the appellant as well as the learned counsel for the third respondent. 10. Pending the appeal proceedings, second respondent died and his legal heirs have been impleaded as additional respondents 4 and 5 in the appeal. Notice was duly served. MACA No.426/2007 5 But there was no appearance. 11. Learned counsel for the appellants would contend that the Tribunal taken notional income monthly as Rs.2,000/per month and 1/3[rd] was deducted towards his personal expenses and thereafter applied multiplier of '15' and dependency was arrived at Rs.2,40,000/-. Towards funeral expenses Tribunal awarded Rs.2,000/-, Rs.2,500/- was awarded towards loss of estate and Rs.15,000/- towards medical expenses and total amount of Rs.2,59,500/- was awarded. The amount so awarded is very less and hence he seeks for enhancement of compensation by accepting the income claimed by the appellant. 12. The claim petition admittedly has been filed under Section 163A of the Motor Vehicles Act, 1988. Section 163A of the Act, reads as follows: “ 163A. Special provisions as to payment of compensation on structured formula basis. — (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or MACA No.426/2007 6 permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation .—For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.” 13. In Jacob v. Mohammed [2004 (1) KLT 893], it has been held that when claims are filed under Section 163A of the Act, the Court is bound to award compensation strictly as per the structural formula in the Second Schedule of the Act. In Anthoniyamma and Others v. Managing Director, KSRTC [2008 (3) KLJ 507], it has been held that under 163A, if age and income at the time of accident is determined, the MACA No.426/2007 7 compensation is fixed in the case of fatal accidents as mentioned in the Second Schedule. In United Insurance Company v. Madhavan [2011 (3) KLT 452] a Division Bench of this court held that in respect of compensation payable for fatal accidents in a claim under Section 163A, the multiplier shown against each entry of table/chart is irrelevant. So in fatal accidents the amount payable as compensation will have to be assessed by ascertaining the relevant horizontal entry and the relevant column in the table/chart. 14. National Insurance Co.Ltd. v. Divakaran [2009 (4) KLT 90] would lay down the principle that only persons with an annual income up to Rs.40,000/- can avail benefit of Section 163A. Probably in consonance with that, though claimant originally claimed monthly income of the deceased as Rs.5,000/-, it has been subsequently amended as Rs.3,250/per month. So it will be within Rs.40,000/- prescribed under second schedule of the Act. 15. Since the application has been filed under Section 163A, as per the settled position of law above described, the MACA No.426/2007 8 structured formula in the Second Schedule to be followed. 16. So adoption of multiplier method by the Tribunal is wrong and compensation so arrived at has to be modified. 17. The deceased was 21 years old and claimed to be a gold worker. The monthly income claimed is Rs.3,250/-. The amount so claimed is seems to be reasonable and hence is accepted. So as per the second schedule, the amount towards loss of dependency would be Rs.7,20,000/- [From that deducting 1/3[rd] towards personal and living expenses, balance would be Rs.4,80,000/- [7,20,000-2,40,000 (1/3[rd] of 7,20,000)]. Deducting the amount already awarded, balance would be Rs.2,40,000/- [4,80,000-2,40,000]. 18. In the result, the appellants are allowed to realise enhanced compensation of Rs.2,40,000/- (Rupees two lakhs forty thousand only) which will carry interest at the rate of 6 % per annum from the date of petition till realisation. The third respondent, insurer shall satisfy the additional compensation granted in this appeal, together with interest deducting the amount due towards balance court fee, within a period of two MACA No.426/2007 9 months from the date of receipt of certified copy of this judgment. 19. The disbursement of additional compensation to appellants shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Appellants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. 20. It has come out that the third respondent filed written statement contending that second respondent is the owner cum driver of the autorickshaw and 3[rd] respondent also filed I.A.No.7087/2004 for directing the second respondent to produce vehicular records as well as the driving license. MACA No.426/2007 10 21. Though notice in the application was duly served upon the second respondent he did not produce the driving licence or any vehicular records. Respondents 1 and 2 remained ex parte before the Tribunal. Tribunal ordered recovery as against the 2[nd] respondent. Since second respondent expired, his legal heirs impleaded as respondents 4 and 5 in this appeal. Service is complete against them, but there was no appearance. So pay and recovery ordered by the Tribunal is maintained. Additional respondents 4 and 5 would be liable to the extent of the estate of deceased 2[nd] respondent devolved upon them. **Sd/-** **M.R.ANITHA** **JUDGE** ## **shg**