The Oriental Insurance Company Limited v. M. Devaky and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 MACA.No. 1865 of 2005() ----------------------OPMV.1897/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S)/3RD RESPONDENT: ----------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, KANNUR NOW REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE RESPONDENT(S)PETITIONERS: --------------- 1. M.DEVAKY, W/O.LATE T.GOVINDAN, THAIKKEL HOUSE, PANNIYOOR AMSOM, POOMANGALAM, PANNIYOOR P.O., VIA KARIMBAM. 2. N.GIRIJA, D/O.LATE T.GOVINDAN, DO. DO. 3. T.GIREESAN, S/O.LATE T.GOVINDAN, DO. DO. 4. T.GOPI, S/O.LATE T.GOVINDAN, DO. DO. 5. T.GEETHA, D/O.LATE T.GOVINDAN, DO. DO. 6. T.BEENA, D/O.LATE T.GOVINDAN, DO. DO. (NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1, 2 & 4 IN THE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL). ADV. SRI.C.P.PEETHAMBARAN FOR R1TO6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A. NO.3368 OF 2005 IN M.A.C.A. NO. 1865 OF 2005. DISMISSED 5.3.2009. Sd/-(R. BASANT, JUDGE) Sd/-(C.T. RAVIKUMAR, JUDGE) ## **R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------M.A.C.A. NO.1865 OF 2005 ---------------------------------------------------------** Dated this the 5th day of March, 2009 ## **JUDGMENT** ## **Basant, J.** The Insurance Company who has been mulcted with liability under the impugned award and who, it is submitted, had taken the requisite permission under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the M.V. Act”) to take up all contentions, is the appellant before us. The claimants had staked a claim for compensation in respect of the death of the deceased who was the husband of the first claimant and father of claimants 2 to 6. They claimed an amount of Rs.2,90,000/-. The first claimant-wife is shown to be aged 52 years. All the other claimants are major children. The deceased was a coolie by employment. He had suffered injuries in the accident which took place on 5.11.1998. He remained as an inpatient for a period of five days and succumbed to the injuries thereafter. 2. Before the Tribunal, the first claimant was examined as PW.1 and Exts.A1 to A5 were marked. The Tribunal, on an anxious consideration of all the relevant inputs, awarded a total compensation of Rs.1,37,000/- as M.A.C.A. NO.1865/2005 2 ## per the details given below: |i. Loss of dependency|| |---|---| |(1000x12x8)|:Rs. 96,000/-| |ii. Transportation expense|:Rs. 3,000/-| |iii. Medical expense including bills|:Rs. 10,100/-| |iv. Bystanders expense|:Rs. 900/-| |v. Loss of estate|:Rs. 5,000/-| |vi. Funeral expense|:Rs. 2,000/-| |vii. Consortium to the 1stpetitioner|:Rs. 5,000/-| |viii. Compensation for loss of love|| |and affection|:Rs. 5,000/-| |ix. Pain and sufferings|:Rs. 10,000/-| ||-----------------| |Total|:Rs.1,37,000/-| ||-----------------| The said amount was directed to be paid along with interest at the rate of 9% per annum from the date of the petition and proportionate costs. 3. The appellant-Insurance Company claims to be aggrieved by the impugned award. What is the grievance? Learned counsel for the appellant does not raise any objection against the amounts awarded under the other heads, but contends that the multiplier adopted by the Tribunal M.A.C.A. NO.1865/2005 3 while determining the compensation for loss of dependency is not correct. The Tribunal has adopted 8 as the multiplier whereas, as per the Second Schedule to the M.V. Act, only 5 is the multiplier permissible for a deceased person aged above 60 years. Whether the deceased falls within the age group of 60 to 65 years or 65 to 70 years, the multiplier to be reckoned is only 5, contends learned counsel for the appellant. 4. Learned counsel for the respondents, on the contrary, submits that this is not a case coming under Section 163 A of the M.V. Act. The Second Schedule to the M.V. Act is strictly applicable only to claims falling within Section 163 A of the M.V. Act. The multiplier shown in Column 1 of the Second Schedule is irrelevant while ascertaining compensation payable in the case of death. It is relevant only while ascertaining the quantum of compensation payable for permanent total disability. If the multiplier adopted for persons aged between 60 and 65 in the Second Schedule for payment of compensation for death is considered, it can be seen that for persons in the age group of 60 to 65, the multiplier adopted is 6 and for persons above 65 years, the multiplier adopted is 5. This is clear from the decision of this Court reported in **National Insurance Co. Ltd. v. Muneer, 2003(1)K.L.T. 137** , submits counsel. Counsel further submits that the details in the Second Schedule M.A.C.A. NO.1865/2005 4 cannot be blindly imported into the adjudication of a claim under Section 166 of the M.V. Act and that all the binding decisions indicate that the same can be used only as a guideline in claims falling under the said section. Courts cannot be held to be prisoners of the details given in the Second Schedule while considering an application under Section 166 of the M.V. Act, contends counsel. Learned counsel further points out that the oral evidence of PW.1 indicates that the deceased at the time of his death was aged about 55 years. The first claimant-wife is, at any rate, shown to be aged about 52 years. In a claim under Section 166 of the M.V. Act, the multiplier applicable to the age of the claimant as also that of the deceased are relevant. According to the learned counsel, the claimants have not preferred any appeal against the quantum of compensation awarded because the total amount awarded appears to be fair, reasonable and just. Even if it be assumed that the amount awarded under the head loss of dependency is slightly more than what is absolutely reasonable, this Court may not lose sight of the inadequacy of the amounts awarded under the other heads. For funeral expenses, only Rs.2,000/- has been awarded. For loss of consortium and loss of love and affection, only Rs.5,000/- each has been awarded. Further, only Rs.10,100/- was awarded towards medical expenses, though the same alone was supported by bills and there was also hospitalisation for a period of five days. The Tribunal M.A.C.A. NO.1865/2005 5 had not taken into account the indisputable reality that all the expenses incurred cannot be supported by vouchers. In the circumstances, learned counsel for the claimants submits that the total amount of Rs.1,37,000/awarded in this case under various heads put together eminently caters to the interest of justice and it is not really necessary to interfere with the award in this appeal merely for the reason that the amount awarded under a particular head is slightly in excess. 5. We have rendered our anxious consideration to the contentions raised by both sides. We note that there is force in the contention that the multiplier shown in the Second Schedule to the M.V. Act need not be taken into account for reckoning the compensation payable for death in a claim under Section 163 A of the M.V. Act. We further take note of the fact that in a claim for compensation for permanent disability under Section 163 A of the M.V. Act, the Second Schedule prescribes the same multiplier for all persons aged above 60 years. The very same table adopts different multipliers for persons in the age group of 60 to 65 years and above 65 years in the case of death. We do also take note of the fact that the spouse of the deceased was aged 52 years. There is no clinching evidence available to prove the age of the deceased. Going by the oral evidence of PW.1, it appears that she was aged 52 and the deceased was M.A.C.A. NO.1865/2005 6 aged 55 years at the time of the accident. 6. Ascertainment of compensation is certainly not a science of exactitude. Appellate interference will be warranted only when this Court is satisfied that there is failure of justice and the amount awarded is not fair, just, sufficient or reasonable. In the facts and circumstances of this case, we are inclined to agree with the argument of the learned counsel for the appellant that the multiplier adopted is slightly in excess, but we are not persuaded to interfere with the impugned award as the total compensation awarded does appear to us to be fair, just and reasonable. At any rate, appellate interference is not warranted merely for the reason that the multiplier adopted for computation of compensation for loss of dependency is slightly higher.. 7. This appeal is accordingly dismissed. **(R. BASANT) JUDGE** **(C.T. RAVIKUMAR) JUDGE** **sp/** M.A.C.A. NO.1865/2005 7 **R. BASANT & C.T. RAVIKUMAR, JJ.** **M.A.C.A. NO.1865/2005** **JUDGMENT** **5th March, 2009** M.A.C.A. NO.1865/2005 8