The Oriental Insurance Co. Ltd. v. Claimants / Respondents 1-12 in O.P.M.V.636/2005, MACA No.1180 of 2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 MACA.No. 1180 of 2011 ----------------------OPMV.636/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT : 3RD RESPONDENT -------------- THE ORIENTAL INSURANCE CO. LTD., REP. BY ITS AUTHORISED SIGNATORY, REGIONAL OFFICE ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI – 18. BY ADV. SRI.A.R.GEORGE RESPONDENTS : CLAIMANTS/RESPONDENTS 1 & 2 IN THE O.P --------------- 1. MARIYAKKUTTY, W/O.VARGEHESE, MUNDAKKAL HOUSE, VANNAPPURAM KARA, VANNAPPURAM VILLAGE, THODUPUZHA – 685582. 2. SISILY, W/O.MANI, KARIMATHAYIL HOUSE, -DO- -DO- 3. REETHA, W/O.WILSON, VANCHITHOTTIL HOUSE, NAGAPPUZHA KARA, KALOORKADU VILLAGE, MUVATTUPUZHA-686 668. 4. SABU, S/O.VARGHESE, MUNDACKAL HOUSE, VANNAPPURAM, VANNAPPURAM VILLAGE, THODUPUZHA – 685 582. 5. JESSY, W/O.SUNNY, PUTHENPURAYIL HOUSE, -DO- -DO- 6. SAJESH, S/O.SUNNY, -DO- -DO- 7. SANEESH, S/O.SUNNY, -DO- -DO- 8. GRACY, W/O.GEORGE, MUNDACKAL HOUSE, -DO- -DO- 9. JOYS, S/O.GEORGE, (MINOR) REP. BY HIS MOTHER GRACY, W/O.GEORGE, MUNDACKAL HOUSE, -DO- -DO- 10. SRUTHI, D/O.GEORGE, (MINOR) -DO -DO- 11. BINOY, S/O.KUTTY, KOLAYIL HOUSE, VENMATTOM KARA, VANNAPPURAM – 685 582. 12. SHAJI P.P., PUTHENMALIYECKAL HOUSE, KEEZHMAD, ALUVA – 683 101. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.1180 of 2011 ******************************* Dated this the[th] day of August, 2011 ## **JUDGMENT** ## BASANT, J. The insurance company is the appellant. The insurance company is aggrieved by the quantum of compensation awarded in a claim under Section 163A of the Motor Vehicles Act. Against a total claim of Rs.3,58,500/-, the Tribunal awarded an amount of Rs.2,77,000/- as per the details appearing in para.16 of the award, which we extract below: i) Loss of dependency : Rs.2,72,000.00 (16,000 X 17) ii) Funeral expenses : Rs. 2,000.00 iii) Loss of estate : Rs. 2,500.00 iv) Medical expenses : Rs. 500.00 ---------------------Total : Rs.2,77,000.00 ========= 2. The claimants are the legal heirs of the deceased. The claim was staked under Section 163 A of the Motor Vehicles Act. The Tribunal had entered a specific finding that Rs.2,000/- was the income of the deceased. The Tribunal **M.A.C.A No.1180 of 2011** 2 had further entered a specific finding that 27 was the age of the deceased on the date of his death. Bills for Rs.500/- were produced to prove medical expenses incurred. 3. The learned counsel for the appellant/insurance company argues that the quantum of compensation awarded is excessive. Requested to explain the basis of the contention, the learned counsel for the appellant submits that the Tribunal, after assuming that Rs.2,000/- is the monthly income, deducted only 1/3 towards the personal expenses/maintenance of the deceased; reckoned Rs.16,000/- as the contribution to the dependents and further assumed 17 as the multiplier. Taking cue from **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121] one half should have been deducted towards the personal expenses of the deceased, a bachelor. The learned counsel for the appellant further shows that the multiplier adopted is that of the deceased and not that of the much older claimants. The mother of the deceased - claimant No.1, was of the age 63 years. The Tribunal had reckoned the multiplier not based on the age of the claimants. **M.A.C.A No.1180 of 2011** 3 4. We are of the opinion that there is a lot of confusion continuing to remain in the mind of the polity as well as the legal experts. The Tribunal in this case also entertained confusion in its mind. The Tribunal, unnecessarily according to us, strained to identify a multiplier. In a claim for compensation in the case of death under Section 163A, it is now well settled that the Tribunal does not have to apply its judicial mind to ascertain the quantum of compensation. It does not have to strain to ascertain the extent of dependency. The Tribunal need only look into the table given under clause 1 of the Second Schedule. The correct X axis (age group of the deceased) and the Y axis (income group of the deceased) will have to be ascertained. At the point where the X and Y axes meet in the table/chart is given the amount of compensation payable “in thousands”. That is the amount payable. The Tribunal is not expected to resort to the multipliermultiplicand method to identify the quantum of compensation payable in the case of death in a claim under Section 163A. If there be any doubt on this aspect, that has been finally laid to rest by the decision in **National Insurance Co. V. Gurumallamma** [2009 KHC 6154 S.C] in para.8, which we **M.A.C.A No.1180 of 2011** 4 extract below: ““Multiplier stricto sensu is not applicable in the case of fatal accident. The multiplier would be applicable only in case of disability in non-fatal accidents as would appear from the Note 5 appended to the Second Schedule. .............. .......... ......... ..... ......... ............... ................. .................. ......... .... As the Second Schedule provides for a structured formula, the question of determination of payment of compensation by application of judicial mind which is otherwise necessary for a proceeding arising out of a claim petition filed under Section 166 would not arise. The Tribunal in a proceeding under Section 163A of the Act is required to determine the amount of compensation as specified in the Second Schedule. It is not required to apply the multiplier except in a case of injuries and disabilities.” 5. According to us, **Gurumallamma** (supra) has to be followed, and that clearly states that ascertainment of the quantum of compensation payable in the case of death by the **M.A.C.A No.1180 of 2011** 5 application of the multiplier-multiplicand method is unnecessary and irrelevant in a claim under Section 163A. We pointedly requested the counsel to explain to us if there is any larger Bench decision contrary to the proposition enunciated in **Gurumallamma** earlier or any subsequent decision specifically referring to this principle declared in **Gurumallamma** . We are informed that there is no such precedents. **Gurumallamma,** which is in tune with the Second Schedule and which offers a valid and tenable explanation for the legislature furnishing “rupees in thousands” payable as “compensation in case of death” in the table/chart has to be followed by us, as that gives meaning and content to the Second Schedule. If courts were to ascertain the quantum of compensation payable in case of death by resorting to the multiplier-multiplicand method in a claim under Section 163A, it passes reason, logic and commonsense as to why amount in rupees in thousands has been specified by the legislature under the Second Schedule. We are not embarking on a more detailed discussion as the question is already covered by the decision in the unreported judgment dated 22.07.2011 in M.A.C.A Nos.223 and 243 of 2007 (National Insurance Company **M.A.C.A No.1180 of 2011** 6 Ltd. Vs. P.C.Chacko). 6. We therefore come to the conclusion that the Tribunal undoubtedly was in error in attempting to ascertain the quantum of compensation payable for loss of dependency by employing the multiplier-multiplicand method. Though the learned counsel for the appellant assails the impugned award on other grounds, we are of opinion that the impugned award is bad for the reason that the multiplier-multiplicand method has unnecessarily been imported into a claim under Section 163A. Inasmuch as the question has been considered in detail in the decision in the unreported judgment dated 22.07.2011 in M.A.C.A Nos.223 and 243 of 2007 (supra), we feel it unnecessary to delve deeper into that question now. 7. What remains to be ascertained is the quantum of compensation that will be payable in accordance with law in a claim under Section 163A. On the age of the deceased and the income of the deceased virtually no dispute is raised. He belongs to the age group of 25-30 years, that is horizontal entry No.4 in the table/chart given in clause 1 of the Second Schedule. He belongs to the income group of persons earning above **M.A.C.A No.1180 of 2011** 7 Rs.18,000/- upto Rs.24,000/-, that is vertical column No.11. The horizontal and the vertical columns meet and there, the amount of compensation payable in the case of death is given in rupees in thousands. The relevant entry is Rs.4,08,000/-. From this, applying the Note, 1/3 has to be deducted towards the personal expenses of the deceased. The amount that is payable hence is Rs.2,72,000/- (4,08,000 X 2/3). Though the Tribunal unnecessarily resorted to the multiplier-multiplicand method, the amount of compensation fixed under loss of dependency is found to be correct on a proper application of the principles in the Second Schedule. In addition to that amount, an amount of Rs.2,000/- for funeral expenses under clause 3(1), an amount of Rs.2,500/- as loss of estate under clause 3(3) and a further amount of Rs.500/- being bills produced for medical expenses under clause 3(4) will have to be awarded. That means that the total amount of Rs.2,77,000/- awarded by the Tribunal is perfectly justified. By a proper ascertainment of the amount payable under the Second Schedule to the Motor Vehicles Act, the amount awarded is correct. It is true that the Tribunal unnecessarily attempted to ascertain the compensation payable **M.A.C.A No.1180 of 2011** 8 for loss of dependency by resort to the multiplier-multiplicand method. That is impermissible. But notwithstanding that inadequacy/error, the total amount of Rs.2,77,000/- awarded by the Tribunal is found to be absolutely correct under Section 163A. The challenge in this appeal at the instance of the appellant does not deserve to be allowed. 8. In the result: - a) This appeal is dismissed in limine; b) Needless to say, all other directions including the direction under Section 149(4) issued in favour of the appellant, will remain undisturbed by this judgment, without any prejudice to the right of the aggrieved to challenge such directions before us. - **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** rtr/