T.O. Thomas and Smt. Saramma v. United India Insurance Company and Others

MACA.No.1545/2013 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945_ ## _MACA NO. 1545 OF 2013_ _AGAINST THE ORDER/JUDGMENT DATED 31.12.2012 IN OPMV NO.1013 OF 2004 OF ADDITIONAL .DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA_ ## _APPELLANTS/PETITIONERS:_ _1 T.O.THOMAS, AGED 67 YEARS, S/O.LATE SRI.OUSEPH, THAIPARAMBIL HOUSE, PEERMEDE._ _2 SMT.SARAMMA, AGED 65 YEARS, W/O.SRI.T.O THOMAS, THAIPARABIL HOUSE, PEERMEDE._ _BY ADVS. RAJEEV SANATH KUMAR KUM.P.G.GAYATHRI P.K.RESHMA (KALARICKAL)(K/875/2014) SAJANA V.H(K/1174/2021) SHAIJU GEORGE(K/001271/2021) AADERSH R.S. PANICKER(K/1255/2021) PUSHPAVATHI.K(K/832/2004)_ ## _RESPONDENTS/RESPONDENTS:_ _1 T.C PAUL, L/O8O, TATIBANDH, RAIPUR, CHATTIGARH 492 099._ - _2 UNITED INDIA INSURANCE COMPANY,_ MACA.No.1545/2013 2 _3RD FLOOR CINC BUILDING LMS COMPOUND, TRIVANDRUM 695 033._ - _3 SURESH KUMAR, S/O.UNNIKRISHNAN NAIR, KUMBALA, MADICHAL KARA, KUZHITHARA VILLEGE, KANYAKUMARI 629 163._ - _4 MANAGING DIRECTOR, DEEDI AUTOMOBILES, SUNDAR NAGAR, RAIPUR, CHATTIGARH 492 013._ _BY ADV.SMT.S.JAYASREE_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1545/2013 3 ## **JUDGMENT** The appellants were the claimants in OP(MV) 1013/2004 on the files of Motor Accidents Claims Tribunal, Thodupuzha. The claim petition was submitted under Section 163 A of the Motor Vehicles Act, seeking compensation for the death of their son, due to the injuries sustained in a motor accident that occurred on 16.08.2002. 2. According to the appellants, the accident occurred when the motorcycle ridden by the deceased hit behind a parked lorry on the side of the road. The deceased was aged 22 years at the time of the accident. It was also contended that, he was a part-time teacher with a monthly income of Rs.3,000/- per month. The 1[st] respondent was the owner in possession of the said vehicle whereas the registered owner of the lorry was the 4[th] respondent. The 3[rd] respondent was the driver of the lorry and the said vehicle was insured with the 2[nd] respondent. The claim petition was submitted in such circumstances. MACA.No.1545/2013 4 3. The 2[nd] respondent alone contested the matter by filing a written statement, wherein they admitted the coverage of policy for the said vehicle. However, it was contended that the accident occurred due to the rash and negligent riding of the motorcycle by the deceased. The quantum of compensation was also disputed by them. 4. Evidence in this case consists of Exs.A1 to A6 from the side of the appellant and from the side of the respondent Exts.B1 and B2 were marked. After the trial, the Tribunal allowed the claim petition by awarding an amount of Rs.4,12,500/- as compensation and the said amount was directed to be recovered from the 2[nd] respondent with interest at the rate of 7.5% per annum from the date of the petition till realization. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri.S.Rajeev, learned counsel for the appellants and Smt.S.Jayasree, learned counsel for the respondent. 6. The learned counsel for the appellants contended that, even though the application was submitted under Section 163A, MACA.No.1545/2013 5 considering the facts and circumstances of the case, the Tribunal should have calculated the compensation by taking into account the method to be adopted in proceedings under Section 166 of the Motor Vehicles Act. Reliance was also placed on a decision reported in **United India Insurance Company Ltd. v. M.Usman Haji and Others [2013(1) KHC 347].** However, the learned counsel for the 2nd respondent opposes the said contention by highlighting that, since the appellant had opted for compensation as per the structured formula contemplated under Section 163A read with the Second Schedule of the Motor Vehicles Act, assessment of compensation as contemplated under Section 166 of the Motor Vehicles Act is not possible. 7. I have carefully gone through the records and I find force in the contention of the learned counsel for the 2[nd] respondent in this regard. As far as the decision relied on by the appellant is concerned, the same was rendered in a completely different factual circumstances. That was a claim which was submitted under Section 163A, wherein the annual income claimed in the claim petition was Rs.72,000/- and the Tribunal MACA.No.1545/2013 6 reduced the same by fixing it as Rs.36,000/- per annum and entertained the application. After elaborately considering the provisions, it was categorically held that, in such circumstances, the application could be converted into one under Section 166 of the Motor Vehicles Act, as the application under Section 163A of the Motor Vehicles Act was not maintainable in view of the fact that the annual income was more than Rs.40,000/-. 8. In this case, the annual income claimed in the claim petition was Rs.36,000/- and the application under Section 163A was maintainable. The Tribunal entertained the said application and calculated the compensation under Section 163A of the Motor Vehicles Act. At any point of time, before the trial was completed, the appellants did not seek any amendment permitting them to convert the application to one under Section 166 of the Motor Vehicles Act. Therefore, at this juncture, the prayer of the appellants to treat the application as one under Section 166 of the Motor Vehicles Act cannot be entertained. 9. However, on perusal of the award, it is seen that the Tribunal, while assessing the compensation, did not strictly MACA.No.1545/2013 7 follow the Second Schedule of the Motor Vehicles Act. As per the Second Schedule of the Motor Vehicles Act, for calculating the compensation for a claim of death, the amount shown in the Second Schedule itself has to be accepted with reference to the age of the deceased and his monthly income. Application of the multiplier method is relevant only in case where the claim was for personal injuries. However, in this case, the Tribunal calculated the compensation by applying the multiplier method, which was not at all proper in view of the fact that this is a claim for death. Therefore, the quantum of compensation requires reconsideration. In this case, the monthly income claimed was Rs.3,000/- and the same was accepted by the Tribunal. Thus the annual income of the deceased comes to Rs.36,000/-. The deceased was aged 22 years and therefore, he would fall under the age group of 20-25. As per the Second Schedule of the Motor Vehicles Act, the amount mentioned for the person falling within the age group of 20-25 years with an annual income of Rs.36,000/- is Rs.6,48,000/-. Towards personal expenses of the deceased 1/3 of the said amount has to be deducted, as MACA.No.1545/2013 8 contemplated under the Second Schedule of the Motor Vehicles Act. Therefore, the actual amount of compensation payable towards loss of dependency would come to Rs.4,32,000/-, whereas the Tribunal calculated the compensation for loss of dependency as Rs.4,08,000/-. In addition to the same, an amount of Rs.2,000/- is granted towards funeral expenses and Rs.2,500/is to be awarded towards loss of estate. Thus, the total compensation receivable by the appellants is to be determined as Rs.4,36,500/- instead of Rs.4,12,500/-. In the result, this appeal is allowed. Award dated 31.12.2012 passed by the Motor Accidents claims Tribunal, Thodupuzha in O.P.(MV). No.1013 of 2004 is hereby modified by re-assessing the compensation receivable by the appellants as Rs.4,36,500/- (Rupees four lakhs thirty six thousand and five hundred only) with interest at the rate as ordered by the Tribunal with proportionate costs and the said amount shall be deposited by the 2nd respondent within a period of three months from the date of receipt of a copy of this judgment after adjusting the amount already paid. It is further ordered that the claimants shall MACA.No.1545/2013 9 furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/6.3.24