The Oriental Insurance Co. Ltd. v. Abidh S/o Late Alavi and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938 MACA.No. 1028 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 33/2009 of MACT, KALPETTA DATED 14.02.2012 APPELLANT(S)/3RD RESPONDENT IN THE OP: ----------------------------------------------- THE ORIENTAL INSURANCE CO.LTD. SO-I CALICUT, REPRESENTED BY THE AUTHORIZED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH, KOCHI-18. ## BY ADV. SRI.A.R.GEORGE RESPONDENT(S)/CLAIMANTS IN THE OP: -------------------------------------------- 1. ABIDH S/O. LATE ALAVI, CHERUCHOLAKKAL VEEDU, VAKERY POST, IRULAM VILLAGE, BATHERY TALUK, VAKERY P.O, WAYANAD DISTRICT-673592. 2. RUKIYA W/O. ABIDH, -DO- -DO- 3. RUBAIDHA (MINOR) D/O. ABIDH, -DO- -DO- 4. JAMSHEER (MINOR) S/O. ABIDH, -DO- -DO- (RESPONDENTS 3 & 4 MINORS REPRESENTED BY THEIR FATHER AND NATURAL GUARDIAN-THE 1ST RESPONDENT). R1-R4 BY ADV. SRI.R.SUDHISH R1-R4 BY ADV. SMT.M.MANJU R1-R4 BY ADV. SRI.K.R.RANJITH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K. P. JYOTHINDRANATH, JJ. ========================== M.A.C.A. No.1028 OF 2012 ==========================** Dated this the 26[th] day of May, 2016 ## **JUDGMENT** _Ravikumar, J._ The Oriental Insurance Company Limited, the third respondent in O.P.(MV).No.33 of 2009 on the files of the Motor Accidents Claims Tribunal, Kalpetta, filed the captioned appeal on being aggrieved by the award passed thereon. The respondents were the claimants therein and they are the parents and siblings of one Ismail who succumbed to the injuries sustained in a motor vehicle accident occurred on 8.10.2006. He was travelling in a jeep bearing Reg.No.TN-43/Z-1688 from Devarshola to Manjery on 8.10.2006. At about 8 a.m when the jeep reached Thrikkalangode, the offending vehicle viz., a tipper lorry bearing Reg.No.KL10-V-3505 came from the opposite direction and dashed against the jeep. It is in the said **M.A.C.A.1028/2012** 2 circumstances that the respondents herein filed the claim petition under section 166 of the Motor Vehicles Act seeking compensation of `5,00,000/-. After considering the evidence on record and the rival contentions, the Tribunal had passed an award for an amount of `4,12,500/- with interest @ 7.5% per annum from the date of the petition till realisation. 2.We have heard the learned counsel for the appellant and the learned counsel for the respondents. A perusal of the award as also the pleadings in the appeal besides the submissions made by the learned counsel on both sides would reveal that the accident, the insurance coverage of the offending vehicle and the cause of the accident as the negligence from the part of the first respondent before the Tribunal, are not in dispute. Evidently, the sum and substance of the contentions of the learned counsel for the appellant who is the insurer of the offending vehicle is that the Tribunal had gone wrong in computing the amount of compensation payable to the respondents/claimants by following the structured formula under **M.A.C.A.1028/2012** 3 section 163A as the claim petition was not actually filed under section 163A whereas it was filed under section 166 of the M.V.Act. The learned counsel for the respondents/claimants resisted the contentions and submitted that considering the fact that the provision for granting compensation under the M.V.Act is a beneficial legislation and the amount granted to the claimants for the death of Ismail is nothing but just compensation. Above all, the evidence on record would reveal that the Tribunal had categorically found that the accident had occurred due to the negligence of the first respondent before the Tribunal viz., the driver of the lorry and therefore, no interference with the impugned award is called for. 3.We have carefully gone through the schedule of compensation given in the impugned award. It would reveal that towards loss of dependency, an amount of `4,08,000/- was granted and in addition to that, `2,000/- and `2,500/- under the heads funeral expenses and loss of estate respectively were granted. Admittedly, the respondents herein/the claimants had filed application for compensation under **M.A.C.A.1028/2012** 4 section 166 of the M.V. Act and they did not file any application seeking conversion of the application to one under section 163A of the M.V.Act. True that in such circumstances, at the first blush, one may tend to think that there is substance in the contention of the appellant. But at the same time, the salutory maxim 'Actus curiae neminem gravabit' means 'an act of the court shall prejudice no man' has to be remembered while considering the contentions. There can be little doubt with respect to the position that when an application is filed under section 166 of the M.V.Act, in the light of the provisions under section 168 M.V.Act, the Tribunal is duty bound to pass 'just compensation' taking into account all the relevant aspects and factors. One indisputable aspect revealed from the evidence on record also assumes relevance while considering this appeal. Evidently, in this case, an interim award was passed under section 140 of the M.V. Act. When that be the position, section 163B of the M.V.Act would assume relevance and it reads thus:- - **163B. Option to file claim in certain cases-** Where a person is entitled to claim **M.A.C.A.1028/2012** 5 compensation under Section 140 and Section 163A, he shall file the claim under either of the said sections and not under both. It is evident that section 163B provides for an option for the claimant either to go for a claim under section 140 or under section 163A, of the Act and not under both. Section 141 of the M.V.Act also assumes relevance in the contextual situation and it runs as follows:- 141(1). **Provisions as to other right to claim for death or compensation permanent disablement--** The right to claim compensation under Section 140 in respect of death or permanent disablement of any person shall be in addition to [any other right, except the right to claim under the scheme referred to in Section 163A (such other right hereafter] in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force. 4. Going by section 141, it is evident that the right to claim compensation under section 140 in respect of death or permanent disablement of any person shall be in addition to any other right and it specifically excludes the right to claim under the scheme referred to in **M.A.C.A.1028/2012** 6 section 163A of the M.V.Act. In the light of the aforesaid provisions and the fact that interim award was passed under section 140 of the M.V.Act, there can be no doubt that passing of an award treating the application as one under section 163A of the M.V Act or even entertaining an application under section 163 of the M.V Act, is not legally permissible. A careful scrutiny of the impugned award would reveal that what was actually done by the Tribunal is not virtually conversion of the application as one under section 163A of the M.V.Act. It is discernible from the following recitals from paragraph 17 of the impugned award:- "While deciding the compensation in respect of a bachelor, the net compensation shall never be lesser than that of the amount to be awarded u/s 163(A) of the M.V.Act even if the age of the dependant is taken into account as a yard stick for fixing the compensation. The legal position in this regard is interpreted in a judgment of our Hon'ble High Court reported in Ruling 2011(4) KHC 60 in 'Sumathikutty V Manoj and others. In the above ruling the Hon'ble High Court came to a conclusion that whatever be the procedure adopted in fixing the compensation, the net compensation shall never be lesser than the compensation which could be awarded u/s **M.A.C.A.1028/2012** 7 163(A) of the MV Act. The Hon'ble High Court in the above ruling had formulated a procedure to be adopted in case of death of a bachelor. At first the compensation may be worked out basing on the age of the parents and thereafter the compensation as per sec.163(A) of the M.V.Act also had to be worked out and if the compensation based upon the age of the parents is lesser than that of the compensation u/s 163(A) of the M.V.Act, claimants must be given at least the amount computed as per sec.163(A) of the M.V.Act. Thus, it is evident that the intention of the Tribunal was not exactly to quantify and grant compensation under section 163A of the M.V.Act, but the attempt was to grant compensation higher than the amount quantified u/s. 166 of the M.V.Act as it was lesser than the amount awardable u/s.163A of the M.V.Act. The Tribunal had initially computed the compensation in terms of section 166 of the M.V.Act as `3,45,000/- and then based on the aforesaid view, went on to consider what would be the compensation awardable to the claimants if it were an application under section 163A of the M.V.Act. The Tribunal, then worked out the compensation under section 163A as `4,12,500/and awarded the same taking into account the decision of a Division **M.A.C.A.1028/2012** 8 Bench of this Court in **Sumathikutty v. Manoj and others** reported in **2011(4) KHC 60** . Going by the said decision, compensation payable in a claim petition under section 166 of the M.V.Act shall not be lesser than the compensation which could be granted to that claimant if worked out under section 163A of the M.V.Act. 5. A bare perusal of the impugned award would reveal that virtually the Tribunal had followed the multiplier-multiplicand method to find out compensation payable under the head 'loss of dependency' and then added the compensation payable towards the heads funeral expenses and loss of estate in terms of the second schedule to the M.V.Act. In a claim petition filed under section 163A of the M.V.Act, compensation to be paid has to be determined in terms of the structured formula under the second schedule and at any rate, multiplier-multiplicand method of computation of compensation is impermissible to be followed in an application under section 163A of the M.V.Act. That apart, a perusal of the second schedule to the M.V.Act would make it clear that what is to be granted thereunder, **M.A.C.A.1028/2012** 9 based on the structured formula, is the compensation for death and not compensation for loss of dependency. The dual factors for determining the compensation payable for death are the 'age of the victim' for finding out the age group to which he belonged and his 'annual income' for finding out range within which his income falls. In fact, there are thirteen ranges of annual income given atop the schedule. The minimum amongst it is `3,000/- and the maximum is `40,000/-. In this case, the age of the appellant is 20 years and therefore, the age group is one described thereunder as 'Above 20 yrs. but not exdg.25 yrs.' The Tribunal took the monthly income notionally as `3,000/- and therefore, his annual income is `36,000/-. The corresponding figure given in the second schedule is '648' and obviously it represents rupees in thousands. Therefore, the amount is `6,48,000/-. Going by the Note thereunder, 1/3[rd] of the same has to be deducted in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. After such deduction, the amount of compensation payable for death in the **M.A.C.A.1028/2012** 10 case on hand under the structured formula would be `4,32,000/-. Going by Note 3 therein, under 'general damages (in case of death)' damages in addition to the compensation so arrived as above will be as follows:- (i) Funeral expenses ...Rs.2000/(ii) Loss of consortium, if beneficiary is the spouse ...Rs.5000/(iii) Loss of estate ...Rs.2000/(iv) Medical expenses-Actual expenses incurred before death supported by bills/vouchers but not exceeding ...Rs.15000/- 6.In the case on hand, the deceased Ismail was a bachelor and hence, no amount is payable under the general head of damage 'loss of consortium'. So also, in the absence of supporting bills/vouchers, no amount is payable under the head 'medical expenses'. Thus, `2,000/payable under the head 'funeral expenses' and `2,500/- payable under the head 'loss of estate' alone are to be added to the amount of ` **4,32,000/-** . Thus, the total compensation payable in the case on hand, going by the structured formula is `4,36,500/-. Evidently, the Tribunal computed the compensation payable under section 163A as **M.A.C.A.1028/2012** 11 `4,12,500/- the break up of which is as follows:- Loss of dependency- `4,08,000/- (17x3000x12x2/3) Funeral expenses - `2000/Loss of Estate - `2500/- 7. As stated earlier, paragraph 20 of the impugned judgment would reveal that the Tribunal had found 'loss of dependency' by following the multiplier-multiplicand method i.e., taking the multiplier as '17', the annual income as `36,000/- (3000 x 12) and then deducting its 1/3[rd] . It is thus obvious that the Tribunal had not correctly worked out the compensation payable under section 163A of the M.V.Act. It is to be noted that the Tribunal has also incorrectly arrived at compensation payable under section 166 of the M.V.Act as '`3,45,000/-' As noticed hereinbefore, the Tribunal had fixed the monthly income notionally for calculation purpose as `3,000/-. Despite such fixation, the claimants/respondents had not filed appeal or took a cross objection. The multiplier was identified by the Tribunal as '13' by taking the average age of the parents. In the light of the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi** **M.A.C.A.1028/2012** 12 **Transport Corporation [2010 (2) KLT 802 (SC)]** which got affirmance as regards the issue of identification of multiplier by the decision in **Munna Lal Jain v. Vipin Kumar Sharma [(2015) 6 SCC 347]** , the multiplier to be applied in the case of compensation for death in a claim under section 166 of the M.V.Act, is to be identified with reference to the age of the deceased. Since the deceased has crossed the age of 20 years, it has to be taken as '18'. As he is a bachelor, the deduction to be made towards personal expenses is 50% of the income, going by the decision in **Sarla Verma** 's case. Hence, the amount payable under the head loss of dependency in a claim under section 166 A of the M.V.Act, going by the above mentioned factors, is `3,24,000/- (3000 x 12x 18 **÷** 2). In additional to the aforesaid amount if expenses for funeral, transportation, compensation towards 'loss of love and affection', 'loss of estate', 'pain and suffering' and 'damage to clothing' are granted, it will certainly make the amount grantable more or less equal to the amount now awarded or sightly higher than that. We have already found that the **M.A.C.A.1028/2012** 13 accident and also the cause of the accident as the negligence from the part of the first respondent before the Tribunal are not disputed and in fact, the Tribunal had found that the accident occurred due to the negligence of the first respondent before it viz., the driver of the lorry. Taking into account all the aforesaid relevant factors in the light of the various decisions of the Hon'ble Apex Court, it can be said indubitably that what the Tribunal had granted as compensation cannot be said to be exorbitant at all. Merely because the amount was arrived at by the Tribunal employing an incorrect method is no ground to interfere with the award when once it is found that what was granted is a just compensation. Taking into account all such circumstances and especially taking note of the fact that the provision for granting compensation to a victim of a motor vehicle accident is social welfare legislation, we are of the considered view that it is only just and proper to decline to interfere with the impugned award whereunder only an amount of `4,12,500/- was granted to the claimants. We are of the view that there would be not much **M.A.C.A.1028/2012** 14 difference in the amount payable under both the methods and that under a correct quantification of the compensation under section 166 of the M.V.Act would make the compensation more or less equal to the amount now awarded and as such we do not find any reason to hold that the amount awarded is exorbitant. It is to be noted that the claimants who received notice in this proceedings had not taken up cross objection. They have also not filed an appeal though the award was passed as far back as on 14.2.2012. Hence, we are not inclined to consider the question of granting enhancement of compensation. For all these reasons, this appeal is liable to fail and accordingly, it is dismissed. There will be no order as to costs. ## **C.T. RAVIKUMAR (JUDGE)** **Sd/K. P. JYOTHINDRANATH (JUDGE)** ## **spc/** # **M.A.C.A.1028/2012** 15 # **M.A.C.A.1028/2012** 16