IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 MACA.No. 2310 of 2008() ----------------------- OPMV.1509/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): RESPONDENT NO.4 ----------------------------- THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE NO.II, GANDHARIMMANOCOIL ROAD, PULIMOODU, THIRUVANANTHAPURAM-1. BY ADVS. SRI.K.K.M.SHERIFF SRI.A.A.ZIYAD RAHMAN RESPONDENT(S): PETITIONER ------------------------- 1. BALACHANDRAN NAIR (DIED), S/O. SIVASANKARA PILLAI, MANNARA MELE VEEDU, ATHIYANNOOR, ARALUMMOODU.P.O, NEYYATINKARA, THIRUVANANTHAPURAM. 2. GEETHAKUMARI, W/O.LATE BALACHANDRAN NAIR, AGED 44, MANNARA MELE VEEDU, ATHIYANNOOR, ARALUMMOODU.P.O, NEYYATTINKARA, THIRUVANANTHAPURAM. 3. CHANDRALEKHA (MINOR), D/O.LATE BALACHANDRAN,MANNARA MELE VEEDU, ATHIYANNOOR,ARALUMMOODU.P.O,NEYYATTINKARA, TRIVANDRUM,REP. BY HER MOTHER GEETHAKUMARI, W/O.LATE BALACHANDRAN NAIR,AGED 44,MANNARA MELE VEEDU,ATHIYANNOOR,ARALUMMODU.P.O,NEYYATINKARA, THIRUVANANTHAPURAM. 4. MADHAVI, M/O. LATE BALACHANDRAN NAIR, MANNARA MELE VEEDU, ATHIYANNOOR, ARALUMMOODU.P.O, NEYYATTINKARA, THIRUVANANTHAPURAM. 5. VENUGOPALAN, M/O. VELAYUDHAN NAIR, HOUSE NO.547, LAKSHMI NIVAS, CHITRAMPAZHINJI, ATHIYANNOOR, ARALUMMOODU.P.O, NEYYATTINKARA, THIRUVANANTHAPURAM. 6. JOSE RAJ, S/O. MANUEL, T.C 19/402, VAZHAVILAKATH VEEDU, VATTAVILA, THIRUMALA, THIRUVANANTHAPURAM. ADVS. SRI.J.HARIKUMAR FOR R6 SRI.NAGARAJ NARAYANAN FOR R2-3 SRI.RAJAN VELLOTH FOR R2-3 SRI.SAIJO HASSAN FOR R2-3 SRI.A.S.SABU FOR R2-3 SRI.BENOJ C AUGUSTIN FOR R2-3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.NO. 2310/2008 ORDER ON I.A.NO. 2746/08 IN M.A.C.A.NO. 2310/2008 DISMISSED. SD/- M.N. KRISHNAN, JUDGE. 19.12.2008 /TRUE COPY/ P.A. TO JUDGE. M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 2310 OF 2008 --------------------------------- Dated this the 19th day of December, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Neyyattinkara in O.P.(MV) No.1509/2002. One Balachandran Nair sustained injuries in a road accident that took place on 19.9.2002. He died in the year 2005 and his legal representatives had been impleaded as per I.A. 2335/05 dated 1.8.05. On account of the accident, the said Balachandran Nair sustained a fracture of spine L1 and he was treated in the Medical College hospital, Thiruvananthapuram as inpatient from 19.9.2002 to 23.9.2002. The parties produced disability certificate of 8% and the tribunal fixed monthly income at Rs. 2,000/-, then multiplied by a multiplier of 15 and awarded a compensation of Rs. 59,300/-. It is against that decision the Insurance Company has come up in appeal. 2. Two points urged by the learned counsel in this court are that on account of the bar under Section 305 of the Indian Succession Act, cause of action will not survive for the legal representatives and therefore the tribunal should not have allowed M.A.C.A. 2310/2008 -2- the claim application. It is also contended that the tribunal went wrong in applying the multiplier of 15, when the person did not live for more than three years after the accident. There has been no case that the death is on account of the injuries sustained in the accident. So far as the first question that has been canvassed before me regarding the non maintainability of the application by the legal representatives of the deceased, the matter is squarely covered by the decision of this court reported in Anuradha Varma v. State of Kerla [1993 (2) KLT 777]. The Division Bench considered the provisions of the Torts (Miscellaneous Provisions) Act, 1977 section 2 and 9 and held that the right to claim damages survives to legal representatives. The Division Bench held that “In the light of Section 2 of the Kerala Torts (Miscellaneous Provisions), Act 1977 even such claims survive the death of the injured. By Section 9 of the aforementioned Act, Section 306 of the Indian Succession Act, 1925 so far as it relates to the rights of action in torts, shall cease to apply to the State of Kerala. Accordingly the legal representatives are entitled to initiate an action for such damages or to proceed with the claim already made by the injured.” So in the light of this decision and the Act referred to therein the M.A.C.A. 2310/2008 -3- cause of action will survive and the petition is perfectly maintainable. 3. Now the second question is regarding the quantum of compensation. It can be seen that the tribunal has applied multiplier of 15. It is true for the age group 40 - 45 years, the multiplier of 15 is to be taken. But here is a case where on the date of the determination of the case, the claimant was not alive and he had lived only for three years after the accident. The death is not on account of the injuries sustained in the accident and therefore the disability compensation even if calculated in full for period can be three. When it is done in this case, the disability compensation would come to Rs. 5,760/- instead of Rs. 28,800/-, thereby reduction of Rs. 23,040/-. So the compensation will get reduced to Rs. 36,260/-. I had considered the other heads as well and I find that a middle aged man after the sustainment of the injuries had died, though not on account of the injuries sustained, but it is certain it has affected him badly and therefore I consider it proper to enhance the compensation for pain and suffering by Rs. 3,000/- and to the loss of earning capacity another Rs. 6,000/-, making it Rs. 9,000/-. When this is added to the compensation of M.A.C.A. 2310/2008 -4- Rs. 36,260/-, the entitlement will be Rs. 45,260/-. Therefore the award is modified accordingly. In the result, the M.A.C.A is disposed of re-fixing the compensation at Rs. 45,260/- with 7.5% interest from 9.12.2002 till realisation and the liability and the percentage entitlement of each of the claimant has to be as ordered by the tribunal. The M.A.C.A is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm