IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 MACA.No. 1600 of 2006() ----------------------- OPMV.1826/1998 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- 1. KUTTAN PILLAI, ASWATHY BHAVANAM, MUTHUPILAKKADU WEST, SASTHAMCOTTA VILLAGE. 2. OMANAKUMARI AMMA, ASWATHY BHAVANAM, MUTHUPILAKKADU WEST, SASTHAMCOTTA VILLAGE. 3. MANOJ K.NAIR, ASWATHY BHAVANAM, MUTHUPILAKKADU WEST, SASTHAMCOTTA VILLAGE. 4. MANESH K.NAIR, ASWATHY BHAVANAM, MUTHUPILAKKADU WEST, SASTHAMCOTTA VILLAGE. BY ADV. SRI.K.SASIKUMAR RESPONDENT(S): --------------- 1. RAJAN KURUP, S/O.KUNJUMMINI KURUP, KOLLKATHARAYIL, PANAYIL, NOORANADU. 2. V.KUNJUKRISHNAN, S/O.VASUDEVAN, THAYYILTHEKKATHIL, MEKKUMMURI, THAMARAKULAM P.O., MAVELIKKARA. 3. THE NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, KAYAMKULAM. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R.3 SRI.P.JACOB MATHEW FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A. No.1600 of 2006 ------------------------------------- Dated this the 3rd day of March, 2009 JUDGMENT BASANT, J. Claimants before the Tribunal are the appellants before us. They are the parents (appellants 1 and 2) and siblings (appellants 3 and 4) of a deceased person aged 21 years at the time of his death. The accident took place on 21.09.1998. He succumbed to the injuries on 26.09.98. He was a graduate. He was earning income as a tuition teacher also. It was claimed that the monthly income of the deceased was Rs.4,000/- per mensem. The claimants claimed an amount of Rs.8 lakhs as compensation. The claim was staked under Section 163 A of the Motor Vehicles Act. Before the Tribunal Exts.A1 to A12 were marked and the 1st appellant/claimant/father examined himself as PW1. The Tribunal, it appears to us, was not too sure as to the manner in which compensation was to be computed - whether under Section 163 A or under Section 166 of the Motor Vehicles Act. However, the Tribunal came to the conclusion that an amount of Rs.2,03,302/- is payable as compensation along with interest @ M.A.C.A. No.1600 of 2006 2 7.5% per annum. Accordingly the impugned award was passed. Amounts are seen awarded under the following heads: i) Loss of dependency : Rs.1,92,000/- (3000 X 12 X 2/3 X 8) ii) Transport to hospital : Rs. 825/- iii) Medical expenses : Rs. 5,977/- (against the bills produced) iv) Funeral expenses : Rs. 2,000/- v) Loss of estate : Rs. 2,500/- ..................... Total : Rs.2,03,302/- ....................... 2. The learned counsel for the appellants contends that if the claim were reckoned as one under Section 163 A of the Motor Vehicles Act, the appellants must have been granted compensation of Rs.4.32 lakhs for death along with a further amount of Rs.2,000/- for funeral expenses, Rs.2,500/- for loss of estate and Rs.5,977/- as medical expenses. 3. The learned counsel for the insurance company promptly contends that the claim could not have been considered under Section 163 A of the Motor Vehicles Act inasmuch as even according to the claimants, the income of the deceased was Rs.48,000/- per annum and following the decision in Deepal M.A.C.A. No.1600 of 2006 3 Girishbhai Soni v. United India Insurance Co.Ltd. [2004(2) KLT 395 (SC)], no amount can be awarded to the claimants under Section 163 A of the Motor Vehicles Act. The learned counsel for the insurance company then contends that if the claim were to be considered under Section 163 A of the M.V Act, future improvement in prospects of the deceased could not have been taken into account and reckoning of the multiplier at Rs.3,000/- is not justified at all. The learned counsel for the insurance company contends that inasmuch as the claim is not maintainable under Section 163 A of the M.V Act, the claim must have been dismissed by the Tribunal. Even if it were reckoned as one under Section 163 A, the multiplicand must have been reckoned only at Rs.15,000/- per annum - the notional income for a non earning person. 4. The learned counsel for the claimants contends that if the claim were considered as one under Section 166 of the M.V Act, at any rate, amounts must have been awarded under the heads of extra nourishment, damage to clothing, miscellaneous expenses, pain and suffering and loss of love and affection. No amounts have been awarded under these heads and if the claim were to be reckoned as one under Section 166 of the M.V Act as M.A.C.A. No.1600 of 2006 4 contended by the counsel for Insurance company, the appellants are entitled for further amounts under these heads, it is contended. 5. We have rendered our anxious consideration to all the relevant circumstances. It appears to us that the Tribunal had considered the claim under Section 166 of the M.V Act. The claimed annual income itself exceeds Rs.40,000/-. In these circumstances in the light of the decision in Deepal Girishbhai Soni v. United India Insurance Co.Ltd. (supra), the claim could not have been considered under Section 163 A of the M.V. Act. 6. We find absolutely no merit in the contention that the claim petition must have been dismissed as it is not maintainable under Section 163 A of the M.V Act. We are satisfied that the appellants definitely have the option to request the Tribunal (and even this appellate Court) to reckon their application as one under Section 166 of the M.V Act if the same be not maintainable under Section 163 A of the M.V Act. It is only a heartless functionary who does not imbibe the compassion which must inform all Tribunals and superior courts which can take the view that because the application is not maintainable under M.A.C.A. No.1600 of 2006 5 Section 163 A of the M.V Act, it should not be considered under Section 166 of the M.V Act also. In the light of the specification before this Court that the application may be considered as one under Section 166 of the M.V Act, we are satisfied that the maintainability of the application and validity of the order must be considered reckoning the same as a claim under Section 166 of the M.V Act. As rightly pointed out by the counsel, there has been a positive finding on the question of negligence by the Tribunal also. It will not be inapposite in this context to mention that none of the respondents have chosen to challenge the impugned award also. 7. We therefore reckon the claim as one under Section 166 of the M.V Act and consider the challenge raised by the learned counsel for the appellants. The challenge is only against the quantum of compensation. 8. The learned counsel first of all contends that the multiplier 8 has been taken by the Tribunal and this is not justified. Counsel contends that the multiplier shown in column 1 of the table in the second schedule relating to the deceased must have been taken and the Tribunal erred in reckoning the multiplier taking into consideration the age of the parents. M.A.C.A. No.1600 of 2006 6 9. In a claim under Section 166 of the M.V Act, undoubtedly it is the lower multiplier which is applicable to the claimants or the deceased which will have to be taken into reckoning for computation and in that view of the matter, we are of the opinion that the Tribunal committed no error in reckoning 8 as the multiplier as that is multiplier applicable to persons of the age group of 55-60 years as per the schedule. The Tribunal, according to us, reckoned 3,000 as the multiplicand. We are satisfied, in these circumstances, that the award of the amount of Rs.1,92,000/- under the head loss of dependency does not warrant interference. 10. The counsel contends that for medical expenses bills for Rs.5,977/- had been produced. For miscellaneous expenses no amount has been awarded at all. For extra nourishment, for expenses of bystander etc., no amount has at all been awarded. We are satisfied, in these circumstances, that( as we are reckoning the claim under Section 166 of the M.V Act) it is not essential that the medical expenses awarded must be limited to the bills produced alone. In that view of the matter, we are satisfied that under the head `medical and miscellaneous expenses' a total amount of Rs.7,500/- can safely be awarded. M.A.C.A. No.1600 of 2006 7 11. For pain and suffering, no amount is seen awarded. It is true that for a claim under Section 163 A of the M.V Act, the general damages in the case of death does not take in any amount under the head pain and suffering, but in a claim under Section 166 of the M.V Act pain and suffering can be awarded. The deceased had been in hospital for a period of 6 days. We are satisfied that award of an amount of Rs.12,000/- under that head shall be eminently reasonable. 12. No amount is seen awarded under the head damage to clothing and extra nourishment. We are satisfied that a total amount of Rs.2,000/- can be awarded under this head. 13. The Tribunal has not awarded any amount under the head loss of love and affection. In a claim under Section 166 of the M.V Act, amounts can be paid under that head. In these circumstances we are satisfied that an amount of Rs.7,500/- can safely be awarded under that head. 14. The above discussions lead us to the conclusion that the appellants will be entitled for the following further amounts in addition to the amounts already awarded by the Tribunal. M.A.C.A. No.1600 of 2006 8 i) Pain and suffering : Rs.12,000/- (no amount granted by the Tribunal) ii) Loss of love and affection : Rs. 7,500/- (no amount granted by the Tribunal) iii) Medical and miscellaneous expenses : Rs. 1,523/- more (7,500 minus 5,977) iv) Extra nourishment and damage to clothing : Rs.2,000/- (no amount granted by the Tribunal) ................ Total : Rs.23,023/- ................. (Rupees Twenty three thousand and twenty three only) 15. Needless to say, the entire compensation amount shall carry interest @ 7.5% per annum from the date of the petition as already awarded by the Tribunal. 16. This appeal is accordingly allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-