IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE [ENTITY] & THE HONOURABLE MR. JUSTICE [ENTITY] MONDAY,THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938 MACA.No. 647 of 2015 () AGAINST THE AWARD IN OPMV 222/2007 of M.A.C.T., PUNALUR DATED 31.7.2014 APPELLANTS/CLAIMANTS: 1. SUMATHY AMMA, AGED 44 YEARS, W/O. MOHANA PILLAI, SANEESH BHAVAN, ELAMPAL P.O., VILAKKUDY VILLAGE, PATHANAPURAM TALUK. 2. SANEESH KUMAR M., AGED 31 YEARS, S/O. MOHANAN PILLAI, SANEESH BHAVAN, ELAMPAL P.O., VILAKKUDY VILLAGE, PATHANAPURAM TALUK 3. SANTHOSH M., AGED 21 YEARS, S/O. MOHANAN PILLAI, SANEESH BHAVAN, ELAMPAL P.O., VILAKKUDY VILLAGE, PATHANAPURAM TALUK 4. VIJAYAMMA, AGED 68 YEARS, D/O.NARAYANI AMMA, SANEESH BHAVAN, ELAMPAL P.O., VILAKKUDY VILLAGE, PATHANAPURAM TALUK BY ADVS.SMT.LIJI KUTTAPPAN SRI.P.C.GEORGEKUTTY RESPONDENTS/RESPONDENTS: 1. BABU (RAJAN), BHAGYA BHAVAN, (REVATHY) (PROPRIETOR OF RAJAN STROES AND BHAGYA AGENCIES ELAMPAL) ELAMPAL P.O., VILAKKUDY VILLAGE, PATHANAPURAM TALUK - 691 322. 2. N. GOPI, S/O. NARAYANAN, SINI BHAVAN, NIRAPPUVILA, THIRUVAZHI, ELAMPAL P.O., VILAKKUDY VILLAGE, PATHANAPURAM TALUK. 3. THE NEW INDIA ASSURANCE COMPANY LI MITED KOTTARAKKARA, (REPRESENTED BY ITS BRANCH MANAGER). R1 & R2 BY ADVS. SRI.B.MOHANLAL SRI.A.SANIL KUMAR R3 BY ADV. SRI.SAIGI JACOB PALATTY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VPV [ENTITY] & [ENTITY], JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= [CASE NUMBER] =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 13th day of June, 2016 JUDGMENT
[ENTITY], J.
The claimants in [CASE NUMBER] on the file of the Motor Accidents Claims Tribunal, Punalur are the appellants herein. The appellants originally filed the application seeking compensation under [SECTION] of the [ACT] claiming compensation for the death of [ENTITY], the husband of the first claimant, father of claimants 2 and 3 and son of the fourth claimant. According to them, on 7.2.2005 at about 3 pm while the deceased [ENTITY] was engaged in loading wooden pieces into a mini lorry with registration No.KL-01/D-4350 at Manjamonkala-Thiruvazhy public road, the lorry suddenly moved forward by the driver and on account of the same, the deceased fell down from the lorry and a big piece of wood from the hands of the co-worker fell on him and he sustained serious injuries and succumbed to the same. They originally claimed a total compensation of Rs.4,00,000/- on various heads not restricted to the claim provided in the IInd schedule to [SECTION] of the Act, which reads as follows:
PART-I
(a) Transportation of the deceased : Rs. 3,000.00
(b) Damages to clothing and articles : Rs. 2,000.00
(c) Others: including expense for postmortem, funeral ceremony etc. : Rs. 25,000.00 PART-II
(d) Compensation for pain and sufferings of the deceased and mental shock, agony etc. of the petitioners : Rs. 20,000.00
(e) Compensation for loss of consortium, Love and affection : Rs. 20,000.00
(f) Compensation for loss of Estate : Rs. 20,000.00
(g) Compensation for the death, loss of life expectation, loss of earnings, etc. : Rs.3,10,000.00
Total : Rs.4,00,000.00
2. Further they also claimed Rs.6,000/- as the monthly income of the deceased as a loading worker and the application was filed on 29.3.2007. Subsequently they filed [CASE NUMBER] seeking amendment of [SECTION] of the claim petition restricting the monthly income to Rs.3,300/- so as to bring the application maintainable under [SECTION] of the Act taking into consideration the view expressed in the decision of the Supreme Court.
3. Originally the insurance company was not impleaded. Later additional third respondent was impleaded as the insurer of the vehicle as per order in [CASE NUMBER].
4. The second respondent did not appear.
5. The first respondent entered appearance and filed a written statement contending that it was not a motor vehicle accident and it was not due to any motor vehicle accident as alleged. It happened while he was carrying a log along with other co-workers and the log fell over the head of [ENTITY] and he sustained injuries which resulted in his death. The deceased was taken to Taluk Hospital, Punalur. The owner of the logs, Mr.[ENTITY], gave statement to the Police and the Police registered a case under the caption 'unnatural death'. Thereafter the applicants filed a private complaint before the Judicial First Class Magistrate Court - III, Punalur stating false allegations. So the vehicle is not involved in the accident. The compensation claimed is without any legal basis. They are not entitled to get any compensation. He further contended that the vehicle was insured with the third respondent and the compensation if any awarded has to be paid by them. He prayed for dismissal of the application.
6. The additional third respondent filed a statement more or less adopting the contentions raised by the first respondent denying the involvement of the vehicle in the accident. According to them, it is not a motor vehicle accident but they admitted the insurance of the vehicle with them. They further contended that there is no contractual liability to indemnify the loading workers. They denied the age, income, occupation of the deceased and the dependency of the petitioners. According to them, he was not having any income. They prayed for dismissal of the application.
7. PWs.1 to 3 were examined and Exts.A1 to A8 were marked on the side of the claimants. Exts.B1 to B5 were marked on the side of the additional third respondent.
8. After considering the evidence on record, the tribunal found that the accident occurred by the user of the vehicle and awarded a total compensation of Rs.2,97,500/- as follows:-
Heads Amount Awarded (in Rupees) Loss of dependency 2,88,000/- Funeral expenses 2,000/- Loss of consortium 5,000/- Loss of estate 2,500/- Total 2,97,500/-
Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellants/claimants before the tribunal.
9. In the appeal, the claimants filed [CASE NUMBER] for amendment of the claim petition converting the same under [SECTION] of the [ACT] and also claiming a total compensation of Rs.21,00,000/-.
10. We will consider the scope of amendment application along with the appeal.
11. Heard Smt.[ENTITY], learned counsel appearing for the appellants, Sri.[ENTITY], learned counsel appearing for respondents 1 and 2 and Sri.[ENTITY], learned counsel appearing for the third respondent.
12. Learned counsel for the appellants submitted that the income claimed by the claimants was Rs.6,000/- per month and as such the tribunal ought not have allowed the application for amendment by reducing the monthly income to Rs.3,300/- so as to bring the application under [SECTION] of the Act. Since the income claimed is more than Rs.40,000/- per annum, the tribunal ought to have proceeded with the case under [SECTION] of the Act. If the tribunal has proceeded with the case under [SECTION] of the Act, the amount awarded is very low and they are entitled to get enhancement.
13. On the other hand, learned counsel appearing for the insurance company submitted that having claimed the compensation under [SECTION] of the Act, the tribunal was perfectly justified in awarding compensation as provided under the IInd schedule to the Act. So the appellants are not entitled to get any enhancement.
14. Learned counsel appearing for respondents 1 and 2 also supported the submission made by the learned counsel appearing for the insurance company.
15. The original claim petition was filed by the claim petitioners though under [SECTION] of the Act, the income claimed by the claimants of the deceased was Rs.6,000/- per month. In the decision reported in [PRECEDENT] the Supreme Court has held that if the income of the deceased is more than Rs.40,000/- per annum, then the application under [SECTION] is not maintainable as the intention of the legislature is to give protection to a particular type of people in the society without proving negligence to claim compensation and the cap between the income should not be substituted later by the court. Subsequently relying on that decision, another Division Bench of this court in [PRECEDENT] held that once the claimant had claimed income of the deceased as more than Rs.40,000/- per annum, the tribunal is not expected to take evidence and scale down the income to Rs.3,300/- so as to fit the claim under [SECTION] of the Act. The remedy open to the court is to proceed with the case under [SECTION] of the Act, as application under [SECTION] of the Act is not maintainable in such cases. But since the evidence was available on record and the tribunal has considered the question under [SECTION] of the Act, this court did not remand the case but decided the case on merit and dismissed the appeal filed by the insurance company stating that the amount awarded is just and proper in that case.
16. Applying the above principle to this case, since the claimants have claimed monthly income of the deceased as Rs.6,000/-, prima facie the tribunal should not have proceeded with the case under [SECTION] of the Act though the claim was made under that section, in view of the dictum laid down in [PRECEDENT] (supra) as the application is not maintainable under that section. The tribunal should have proceeded with the case under [SECTION] of the Act. Further having made such a claim and later found that it will not be maintainable, it is not possible for the claimants to file an application for amendment to bring down the income of the deceased to Rs.3,300/- per month so as to bring the claim within the permissible limit of less than Rs.40,000/- so as to proceed with the case under [SECTION] of the Act. Further no reason was stated in the amendment application for making such an amendment as well. In view of the dictum laid down in the decision reported in [PRECEDENT] (supra), the parties before the tribunal cannot seek to fix a cap or ceiling in the monthly income so as to bring it down to be dealt with under [SECTION] of the Act if the actual income is higher than the natural limit provided in the schedule. If that be the case, allowing the claimants to amend the claim petition by reducing the monthly income to Rs.3,300/- so as to bring within the scope of [SECTION] of the Act by the tribunal is unsustainable in law. In fact, the tribunal ought to have proceeded with the case under [SECTION] of the Act and decided it on merit. In view of the dictum laid down in the above decision and also on the basis of the discussions made above, since the tribunal itself has committed grave illegality in permitting the petitioner to bring down the income to Rs.3,300/- in a case where on the basis of the pleadings the application is not maintainable under [SECTION] of the Act, there is no necessity to remand the case and the case can, on the basis of the evidence, be disposed of by this court to avoid delay in disposing of the case. Further even if the amount claimed is less, if the court feels, on the basis of calculation, that a reasonable amount will have to be awarded more than the amount claimed even without an amendment, this court can pass an award, awarding just and proper compensation directing the claimants to pay court fee for the excess amount if any awarded. So there is no necessity to allow the application for amendment filed by the claim petitioners before this court converting the application to one under [SECTION] of the Act in view of the dictum laid down in the above decision.
17. The original claim of the claimants was that the deceased was a head load worker, getting Rs.6,000/- per month and was aged 44 years. Subsequently they amended the claim petition restricting the claim to Rs.3,300/- per month. Even when the first claimant went to the box and gave evidence, she had only claimed the income of the deceased as Rs.3,300/- per month. So under the circumstances, the claimants are not entitled to claim more than what they had claimed in the claim petition at the time of evidence. So the tribunal was perfectly justified in taking the monthly income of the deceased as Rs.3,300/-.
18. As regards the question of negligence is concerned, PW2, a co-worker, was examined and he had categorically stated that while the deceased and himself were engaged in loading timber logs in the lorry, without any signal or indication, the driver took the lorry forward and due to that the deceased fell down from the lorry and along with him a log also fell down from the lorry and caused injury to him. The tribunal had believed the evidence of PW2 on that aspect and the tribunal did not come to the conclusion that the vehicle was stationary and he fell down due to his negligence and consequently the log fell on him and as such there is no motor vehicle accident as claimed by the respondents in this case. Once the tribunal had believed the evidence of PW2 and also considering the fact that the Police on the basis of a private complaint filed by one of the claimants, registered a crime and after investigation, filed a final report charge sheeting the driver of the mini lorry for rash and negligent driving, it cannot be said that the accident had occurred at the time when the vehicle was stationary as claimed by the respondents. So we hold that the accident occurred due to the negligent driving of the lorry by the second respondent, the driver of the vehicle.
19. The deceased was aged 44 years. In the decision reported in [PRECEDENT]] the Supreme Court has held that even in cases where there is no permanent income, future prospects will have to be taken into consideration and upto the age of 40 - 50%, upto the age of 50 - 30% and upto the age of 60 - 15% will have to be added to the income fixed as future prospects for the purpose of awarding compensation under the head loss of dependency. As per Ext.A5 postmortem certificate, the age of the deceased is 48 years. So he is above 40 but below 50. Then 30% will have to be added to his income as future prospects to award compensation under the head loss of dependency. Since he was aged 48 years, the multiplier to be applied is 14 as per [PRECEDENT]. Since there are four dependents, one-fourth will have to be deducted instead of one-third as done by the tribunal for his personal expenses in view of the dictum laid down in [PRECEDENT] (supra). If a recalculation is made on the basis of the above materials, then the appellants will be entitled to get an amount of Rs.5,40,540/- (Rs.3,300 x 130% = Rs.4,290 x 12 x 14 x 75%) instead of Rs.2,88,000/- awarded by the tribunal, thereby they will be entitled to get an additional compensation of Rs.2,52,540/- under the head loss of dependency.
20. If the claim is treated as one under [SECTION] of the Act then the amount mentioned in the IInd schedule to the [ACT] has no relevance. In the decision reported in [PRECEDENT] (supra) the Supreme Court held that in the absence of any contra evidence adduced regarding higher expenses for funeral expenses, a minimum of Rs.25,000/- will have to be awarded. So in this case the tribunal has awarded only Rs.2,000/- relying on the IInd schedule to the Act under the head funeral expenses. So they will be entitled to get an additional amount of Rs.23,000/- under the head funeral expenses.
21. The tribunal has awarded only Rs.5,000/- for loss of consortium to the first claimant. Considering her age and also applying the principle in [PRECEDENT] (supra), she is entitled to get an amount of Rs.1,00,000/- under that head, thereby she will be entitled to get an additional amount of Rs.95,000/- more under the head loss of consortium. The tribunal has awarded the sum of Rs.2,500/- under the head loss of estate. We are inclined to enhance the same to Rs.10,000/-, thereby they will be entitled to get an additional amount of Rs.7,500/- under the head loss of estate.
22. No amount was awarded by the tribunal under the head pain and suffering suffered by the deceased. In this case, though he died instantaneously, a nominal amount will have to be awarded under that head. So we award Rs.10,000/- as compensation under the head pain and suffering suffered by the deceased. No amount was awarded by the tribunal under the head loss of love and affection. The deceased has two children and also aged mother. So we feel it appropriate to award a consolidated amount of Rs.50,000/- under the head loss of love and affection to claimants 2 to 4, thereby they will be entitled to get an additional compensation of Rs.50,000/- under that head.
23. So the appellants/claimants will be entitled to get an additional compensation of Rs.4,38,040/-, which we rounded to Rs.4,38,000/-, over and above the compensation awarded by the tribunal, which the third respondent insurance company is liable to pay with 9% interest from the date of petition till the date of payment. Three months time is granted to the insurance company to deposit the amount. The insurance company is directed to deduct the court fee payable for the excess amount awarded than what was claimed in the claim petition and send a cheque for the balance amount, being the amount payable to the claimants and send a separate cheque towards court fee payable. Since the first claimant is the main dependent of the deceased, we feel it appropriate to pay Rs.25,000/- each with interest payable on that amount to claimants 2 to 4 over and above the compensation awarded by the tribunal to them and the balance amount be given to the first claimant. Out of the balance amount, 50% is permitted to be withdrawn by the first claimant and the balance 50% shall be deposited in her name for a period of three years with liberty for her to withdraw the quarterly interest and also to move for premature withdrawal of the amount if necessity arises for that purpose.
With the above modification of the impugned award of the tribunal, the appeal is allowed in part and disposed of accordingly. The parties are directed to bear their respective costs in the appeal.
[ENTITY] JUDGE Sd/-
[ENTITY] JUDGE /true copy/ P.A. To Judge vpv