IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 MACA.No. 87 of 2004() (OP (MV) NO. 482 OF 1999 OF MACT, OTTAPLAM) --------------------- APPELLANT(S): APPELLANT/5TH RESPONDENT: --------------------------------------- NEW INDIA ASSURANCE COMPANY LTD., SALEM. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANT AND RESPONDETNS 1,2,3,4,6 & 7: ------------------------------------------------------ 1. P.K. PADMAVATHI, AGED 70 YEARS, W/O. DECEASED E.K.SANKARA PANICKER, KALARIKKAL VEEDU, ELAMBULASERI POST, KARIMPUZHA II VILLAGE, OTTAPALAM TALUK. 2. GOVINDA SHETTI, S/O. NARASIMHAN CHETTI, SECOND MAIN ROAD, 259, KAMALA NAGAR, BANGALORE 74, KARNATAKA (DRIVDR OF KA13 2601). 3. H.P. GIRISH, S/O. H.T. PALLASWAMI, SOUMYA KESAVA NILAYAM, P & T COLONY MAIN ROAD, HASSAN (OWNER OF KA13 2601). 4. UNITED INDIA INSURANCE COMPANY, NAMAKKAL (INSURER OF KA13 2601). 5. S.V. JAAPRAKSH, S/O. S.V.VAYYAPURI, 49/A PERAMALOOR MAIN ROAD, SELAM. (OWNER AND DRIVER OF TN 27/8771) 6. S. SAKTHIVEL, S/O. SARAVANAN, 374, PANNANTHOOR POST, KRISHNAGIRI TALUK. (DRIVER OF TN27 8771). 7. E.S. JAMES, S/O. STEPHEN, 13/14, TNHB COLONY, BANGALORE ROAD, HOSSUR, DARMAPURI DISTRICT (IMPLEADED AS OWNER OF TN 27/8771 AS PER IA 3982/02 DT.27/1/2003 ADV. SRI.JOHN JOSEPH VETTIKAD FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & C. K. ABDUL REHIM, JJ. -------------------------------------------- M.A.C.A. No. 87 OF 2004 -------------------------------------------- Dated this the 21st day of August, 2009 JUDGMENT Ramachandran Nair, J. Heard standing counsel appearing for the appellant and counsel appearing for the claimant-respondent, and also standing counsel appearing for the fourth respondent. The claimant is 70 year old lady who lost her son aged 27 years, in the accident. Though the Claim Petition was filed under Section 166, it was later converted into a claim under Section 163A of the Act. The MACT awarded compensation going by the formula stated in the Second Schedule. The total compensation granted is Rs. 2,04,500/-. The MACT held that since it is a claim awarded under Section 163A, liability has to be shared between the insurance companies. However, there is a specific direction to the appellant to deposit the entire amount and recover 50% from the fourth respondent. 2. We have heard Sri. Rajan P Kalliyath, counsel appearing for the appellant, who cited before us the decision of the Supreme Court in 2 RAMESH SINGH V. SBBIR SINGH, (2008) ACC 765 (SC) wherein the Supreme Court held that Second Schedule prescribed under Section 163A does not contain static principle and if the claimants are fairly old, the Tribunal should not grant compensation going by the age of the victim. Counsel for the appellant heavily relied on the age of the claimant, who was 70 years of age as on the date making Claim Petition, and according to him, the multiplier applicable going by her age is only 5 as against 10 taken in this case, under the Second Schedule. He further pointed out that even in a Section 166 claim, eligible compensation would have been lesser because the multiplier would have been only 5 and reduction in dependency should also be taken after the normal age of marriage of the victim who was 27 years at the time of his death. Counsel for the claimant on the other hand contended that whatever be the contentions raised, the total compensation granted for the death of 27 year old son of the claimant on whom she was depending for her livelihood is only Rs. 2,04,500/-. He further pointed out that if the claim was proceeded under Section 166, compensation would have been claimed under other heads, which 3 is not the case herein, where the claim is considered and awarded under Section 163A. Eventhough we find force in the various contentions raised by counsel for the appellant, we do not think any interference is called for in this case because the total compensation awarded is Rs. 2,04,500/- only. Even in the case of death of a very tender child, we have noticed that courts have been granting compensation around Rs. 2 lakhs. Further, even going by the decision of the Supreme Court cited by the appellant, wherein the Supreme Court says that life expectancy of the claimant should also be reckoned while fixing the multiplier. We find that the claimant who was 70 years of age at the time of filing of the Claim Petition in the year 1998 is still alive which means that she is 81 years of age now. Therefore going by the expectancy of life of the claimant, which factually stands proved, we do not find any ground to interfere with the multiplier applied on the facts of this case. We therefore leave open the contentions raised by the appellant to be raised in appropriate case for exhorbitant awards which may not be tenable under Section 163A. 3. We do not find any logic in the MACT directing the appellant 4 to deposit the entire amount after noticing that the liability is to be shared between the two insurance companies. We therefore modify the award directing both the insurance companies to deposit 50% of the amount awarded with proportionate interest. The Appeal is dismissed, but with the above observations. (C.N.RAMACHANDRAN NAIR) Judge. (C. K. ABDUL REHIM) Judge. kk 5