IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 MACA.No. 1983 of 2009() ----------------------- OPMV.227/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT/2ND RESPONDENT. --------------------------------------- NATIONAL INSURANCE CO. LTD, PARCO TOWERS, P.M.TAJ ROAD, POST KOZHIKODE-673 001. BY ADV. SRI.RAJAN P.KALIYATH SMT.ANUSHA RAMACHANDRAN RESPONDENT(S): PETITIONERS 1 TO 2 & R1, 3, AND 4 --------------- 1. MUHAMMED, AGED 65 YEARS,S/O.HYDROSE, 2. KADEEJA, AGED 52 YEARS, W/O.MUHAMMED,BOTH RESIDING AT VALIYAKANDATHIL HOUSE, EAST BAZAR, POST THIRURANGDI 676 306,THIRURANGDI TALUK, MALAPPURAM DISTRICT. 3. V.IMTHIA AZGAR, S/O.MUHAMMED IZMAYIL, NISHANA, POST MANNUR, KADALUNDI,KOZHIKODE DISTRICT PIN-673 302. 4. M.K.MOHAMMED, S/O.MOIDEEN @ BAVA, MINUKANDATHIL HOUSE, POST ULLANAM, 676 121,TIRURANGADI TALUK, MALAPPURAM DISTRICT. 5. UNITED INDIA INSURANCE COMPANY LTD, THAZEPALAM,POST TIRUR. ADV. SRI.C.M.MOHAMMED IQUABAL FOR R1 & 2 SRI.K.P.SUDHEER FOR R4 SRI.JOHN JOSEPH VETTIKAD FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1983 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of February, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the Insurance Company has challenged the judgment and award of the Motor Accidents Claims Tribunal, Tirur in O.P.(MV)No.227/2007 dated April 4, 2008 by which the Tribunal has awarded a compensation of Rs. 4,41,900/- to the claimants who are the legal heirs of deceased Hyderali for the loss caused to them on account of the death of deceased in a motor accident. 2. The petition was filed under Section 163 A of Motor Vehicles Act. The facts in brief are these : The deceased Hyderali was travelling in a trekker bearing Reg.No.KL-10A-9169 from Parappanangadi to Chemmad on December 22, 2006. At about 9.20 p.m. when he reached near Pantharangadi in Parappangadi -Chemmad public road, a car bearing Reg.No.KL-10C-4561 came from the opposite direction and dashed against the trekker . Hyderali sustained MACA.No.1983/09 Page numbers serious injuries in the accident . He succumbed to the injuries sustained while undergoing treatment in the hospital on the next day. According to the claimants, the accident occurred due to the negligence of the drivers of both the vehicles. 3. First respondent in the O.P. was the owner and second respondent was the insurer of the car involved in the accident. Third respondent is the owner and fourth respondent is the insurer of the trekker. First respondent remained absent and was set ex parte before the Tribunal. Second respondent, Insurance Company, filed a written statement denying the liability and alleging negligence on the part of the driver of the car . Fourth respondent insurer of the trekker admitted the policy. 4. PW1 was examined. Exts.A1 to A10 were marked on the side of the claimants. No evidence was adduced by the contesting respondents before the Tribunal. 5. On an appreciation of evidence, the Tribunal found that accident occurred due to the negligence on the part of both the drivers and awarded a compensation of Rs. 4,41,900/-. Second respondent Insurance Company of the car has filed this appeal challenging the MACA.No.1983/09 Page numbers quantum of compensation awarded by the Tribunal. 6. As the compensation has been claimed under Section 163 A of the Motor Vehicles Act, the question of negligence does not arise for consideration. Therefore, the only question for consideration is whether the compensation awarded by the Tribunal is excessive. 7. In this appeal, respondents 1 and 2, the claimants, respondents 4, owner of the trekker and respondent No.5, Insurance company entered appearance . Heard learned counsel appearing for the appellant and respondents 1 , 2, 4 and 5. 8. The appellant argued that the Tribunal went wrong in adopting the multiplier of 17 as the claimants who are the parents of the deceased were aged 65 and 52 respectively and also Tribunal went wrong in taking the monthly income of the deceased as Rs. 3,000/-. We find no merit in the above contentions raised by the appellant. The application was filed under Section 163 A of Motor Vehicles Act. Therefore, the compensation has to be awarded on the basis of the structured formula described in the Second Schedule of the Act. The deceased was aged 20 to 25 years which is not seriously disputed. The Tribunal has accepted the evidence of PW1 , the father of the MACA.No.1983/09 Page numbers deceased , that deceased was working as a coolie and he used to earn about Rs. 3000/- per month. On going through the evidence of PW1, we find no reason to disbelieve his evidence. Thus calculated the annual income of the deceased comes to Rs. 36,000/- and the structured formula as found by the Tribunal , the compensation payable comes to Rs. 6,48,000/-. The Tribunal deducted 1/3 from this towards the expenses of the deceased and awarded a compensation of Rs. 4,32,000/- for loss of dependency. In this case, the deceased was aged 20 to 25 and the multiplier to be adopted is 17 as per the structured formula. This is challenged by the appellant. But the question of applying multiplier does not arise for consideration in the case of awarding compensation under Section 163 A of Motor Vehicles Act. 9. The Apex court has in National Insurance Co.Ltd. v. Gurumallamma and another ( 2009ACJ 2660) held thus : “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 serial No.5 of the Second Schedule. Thus, even if the application of multiplier is ignored in the present case and the income of the deceased is taken to be Rs. 3,300/- per month, the amount of MACA.No.1983/09 Page numbers compensation payable would be somewhat between Rs.6,84,000 and Rs. 7,60,000/-. 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. Tribunal in a proceeding under Section 163 A 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.” 10. In the light of the principles laid down in the above decision, we feel that the Tribunal is justified in awarding a compensation of Rs. 4,32,000/- for loss of dependency as provided under Second Schedule of Motor Vehicles Act. That being so, we find no merit in this appeal and the same has to be dismissed. In the result, the Appeal is dismissed. In the circumstances of the case, parties shall bear their own cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1983/09 Page numbers