The New India Assurance Co.Ltd vs The New India Assurance Co.Ltd
2021 Latest Caselaw 128 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MRS. JUSTICE MARY JOSEPH

    TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942

                     MACA.No.1004 OF 2016(E)

 AGAINST THE AWARD IN OPMV 1604/2013 DATED 06-11-2015 OF MOTOR
              ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM


APPELLANT/3rd RESPONDENT:

             THE NEW INDIA ASSURANCE CO.LTD.
             REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD,
             ERNAKULAM, REPRESENTED BY ITS DUTY AUTHORISED
             OFFICER.

             BY ADV. SRI.VPK.PANICKER

RESPONDENTS/PETITIONERS:

      1      ANU RAJESH
             W/O.LATE RAJESH, AGED 27, KUDILINKAL HOUSE,
             THIRUVAMKULAM PO, THIRUVAMKULAM VILLAGE,
             KANAYANNOOR TALUK, ERNAKULAM DISTRICT 682 305.

      2      ABHIRAM S/O.LATE RAJESH
             AGED 5, MINOR, REPRESENTED BY HIS MOTHER ANU
             RAJESH, W/O.LATE RAJESH, AGED 27, KUDILINKAL HOUSE,
             THIRUVAMKULAM PO, THIRUVAMKULAM VILLAGE,
             KANAYANNOOR TALUK, ERNAKULAM DISTRICT 682 305.

      3      ARADHYA D/O.LATE RAJESH
             AGED 5, MINOR, REPRESENTED BY HIS MOTHER ANU
             RAJESH, W/O.LATE RAJESH, AGED 27, KUDILINKAL HOUSE,
             THIRUVAMKULAM PO, THIRUVAMKULAM VILLAGE,
             KANAYANNOOR TALUK, ERNAKULAM DISTRICT 682 305.

      4      RAJAMMA
             W/O.LATE RAJAPPAN, AGED 61, KUDILINKAL HOUSE,
             THIRUVAMKULAM PO, THIRUVAMKULAM VILLAGE,
             KANAYANNOOR TALUK, ERNAKULAM DISTRICT 682 305.

             R1 BY ADV. SRI.MATHEWS K.PHILIP
             R1 BY ADV. SMT.MINISHA K DAS

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 05.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA.No.1004 OF 2016(E)

                              -:2:-

                            JUDGMENT

Dated this the 5th day of January, 2021

The award passed by Motor Accident Claims Tribunal,

Ernakulam (for short 'Tribunal') on 06.11.2015 in O.P.(MV)

No.1604/2013 is under challenge in the appeal. The challenge

was made by the 3rd respondent, the insurer of KSRTC stage

carriage bus bearing Registration No.KL-15/7936. The Tribunal

found on appreciation of evidence that no fault liability under

Section 163A of the Motor Vehicles Act, 1988 (for short 'the M.V.

Act') as established and made the 3rd respondent liable to pay

compensation fixed by it to the legal heirs for the death of one

Mr.Rajesh in the motor accident occurred at 7.45 p.m. on

08.11.2012.

2. The parties to this appeal will hereinafter be referred to

as the 3rd respondent and the petitioners in accordance with their

status before the Tribunal in O.P.(MV) No.1604/2013. The

contention of Sri.V.P.K. Panicker, the learned counsel for the 3 rd

respondent was that the Tribunal is totally unjustified in passing

the impugned award in favour of the petitioners under Section

163A of the M.V. Act. According to him, the petition seeking MACA.No.1004 OF 2016(E)

compensation as O.P.(MV) No.1604/2013 was filed originally

under Section 166 M.V. Act and the deceased Rajesh was averred

by his legal heirs as a driver by occupation having a monthly

income of Rs.12,000/-. An application seeking amendment of

the provision under which the claim was preferred as Section

163A of the M.V. Act and the monthly income of the deceased as

Rs.3,300/- was filed in the meantime. The said application was

vehemently opposed by the 3rd respondent by filing a counter

statement in detail. In the application a contention was

vehemently raised by the 3rd respondent that monthly income of

the deceased claimed by the petitioners originally as Rs.12,000/-

cannot be permitted to be reduced to Rs.3,300/- by way of

amendment so as to fit the claim within the cap of Rs.40,000/-

for sustaining the claim for compensation under Section 163A.

The contention raised as above was discarded and the application

seeking amendment was allowed by the Tribunal. Accordingly

the petition seeking compensation was amended and Section

163A was substituted in the place of Section 166 and Rs.3,300/-

in the place of Rs.12,000/-. Thereafter the claim petition was

tried and based on the evidence adduced, the claim of the MACA.No.1004 OF 2016(E)

petitioners for compensation was allowed. The compensation

was assessed as Rs.4,10,000/- and the 3rd respondent was

directed to deposit the same in favour of the petitioners with

interest at the rate of 9% per annum from the date of the

petition till the date of realisation. According to the learned

counsel, the Tribunal is highly unjustified in allowing the

application seeking amendment, discarding the objection raised

by the 3rd respondent and passing the impugned award fixing

liability upon the 3rd respondent to pay the compensation arrived

at.

3. The learned counsel for the 3rd respondent has relied on

National Insurance Company Ltd. v. Aravindakshan

[2016(2) KLT 711] to rest his contention as above. The learned

counsel for the petitioners on the contrary has contended that

the Tribunal is perfectly justified in passing the impugned award

and therefore interference is uncalled for. The learned counsel

has also relied on Rukmani Devi v. New India Assurance

Co.Ltd and another [2009 ACJ 2202] to contend that the

Tribunal has every right to allow the application seeking

amendment and to limit the monthly income so as to fit the claim MACA.No.1004 OF 2016(E)

of the parties within the cap of annual income of Rs.40,000/- as

envisaged under the structured formula inserted in the Act in the

year 1994.

4. In the backdrop of the rival contentions advanced from

either parties, this Court has gone into the impugned award. It

was found on a perusal of the impugned award that the claim

petition seeking compensation was originally preferred by the

petitioners under Section 166 of the M.V. Act and the monthly

income of the deceased was shown as Rs.12,000/-. As rightly

pointed out by the learned counsel for the 3 rd respondent the

application was moved by the petitioners seeking amendment of

the provision under which the claim was preferred and also for

substituting the monthly income of the deceased as Rs.3,300/- in

the place of Rs.12,000/-. It is pertinent to note from Annexure

A3, final report laid by police that the accident was accidental.

By filing the amendment application seeking to reduce the

monthly income from Rs.12,000/- to Rs.3,300/- the petitioners

actually intended to claim compensation on the principle of 'no

fault liability' under Section 163A of the M.V. Act. It has been

held by a Division Bench of this Court in National Insurance MACA.No.1004 OF 2016(E)

Company supra that parties before the Tribunal cannot seek to

fix a cap or ceiling to the monthly income so as to bring it down,

for their claim to be dealt with under Section 163A, if the annual

income originally claimed by them is higher than the maximum limit

of Rs.40,000/-. The benefit of Section 163A under the Second

Schedule could only be availed by the parties seeking compensation

when the maximum annual income of the deceased is Rs.40,000/-.

If the annual income averred in the petition is more than

Rs.40,000/-, the claim for compensation will not be maintainable

under Section 163A of the M.V Act. In the case on hand, the

monthly income averred in the petition originally was Rs.12,000/-.

Therefore, the annual income would be Rs.1,44,000/-. As held by

the Division Bench, the claimants cannot seek to fix a cap or ceiling

to the monthly income so as to bring it down to fit their claim within

the ambit of Section 163A, if their actual annual income is higher

than Rs.40,000/-. The settled position being so, the Tribunal

ought not to have allowed the application seeking amendment of

the monthly income from Rs.12,000/- to Rs.3,300/-. The

Tribunal has allowed the amendment application illegally, though

objected to by the 3rd respondent vehemently. MACA.No.1004 OF 2016(E)

5. In Rukmani Devi supra cited by the learned counsel for

the respondent the argument advanced was that structured

formula in 1994 was not revised by the Central Government even

after a lapse of 13 years and the criteria of revision being based

on cost of living, wages of the deceased can be raised as per the

Minimum Wages Act. Accordingly, it was urged to treat the

income of the deceased shown in the petition seeking

compensation as Rs.60,000/- and to compute the compensation

on its basis. In the case cited, the application seeking

compensation was filed originally under Section 166 M.V. Act and

the annual income of the deceased was pleaded as Rs.60,000/-.

Reduction of the income from Rs.60,000/- was not sought by way

of amendment so as to fit the annual income within the ceiling of

Rs.40,000/-, but on the contrary Rs.60,000/- itself was sought to

be considered for reckoning compensation under Section 163 A

stating that the annual income fixed in the year 1994 was not

revised and enhanced by the Central Government in accordance

with the minimum wages payable to labourers in proportion to

the rise in cost of living. Therefore, Rs.60,000/- was sought to

be treated as the cap in the place of Rs.40,000/- and MACA.No.1004 OF 2016(E)

compensation was sought to be fixed under Section 163A M.V

Act. In the cited case, claim petition was filed originally under

Section 166 and after withdrawing the said petition, a fresh

petition was preferred under Section 163A. The Tribunal

dismissed the application for the reason that the income pleaded

was beyond the limit of Rs.40,000/- per annum. The High Court

of Delhi while considering the appeal has held that the limitation

of annual income placed in Second Schedule will not prohibit

filing of a claim petition, even if income is pleaded as more than

Rs.40,000/- per annum, for the reason that ultimate

determination of the income alone would decide the grant of

relief under Section 163A. True that the dictum of the High

Court of Delhi in Rukmani Devi supra, fortifies the argument

advanced by the learned counsel for the petitioners but in view of

the dictum laid down by the Division Bench of this Court on the

contrary in National Insurance Company supra, this Court is

bound to hold otherwise.

6. In the claim petition preferred originally under Section

166 M.V. Act the 3 rd respondent had filed a written statement

contending that the negligence alleged on the part of the MACA.No.1004 OF 2016(E)

respondent, the driver of the KSRTC bus is incorrect, that

negligence on the part of the deceased was the cause of

accident, that the claimants are not entitled to get compensation

for the fault of the deceased and that the investigation by the

police culminated in a finding that the 1 st respondent was not

negligent, followed by filing of a refer report. The Tribunal

though had allowed the application seeking amendment and

substituted the monthly income as Rs.3,300/- in the place of

Rs.12,000/-, while considering the issues, the Tribunal had held

in the following manner:

"According to the claimant, the deceased was a driver by profession having an age of 35 years with a monthly income at the rate of Rs.3,300/-. Since the accident occurred in the year 2012, in the absence of any kind of deformity on the deceased till his death, he can be considered as an able bodied person having an age of 35 years at the time of his death. So his notional income for a month can be calculated to the tune of Rs.400/- per day for 15 days. If that be so, his annual income would be Rs.72,000/- As per the schedule attached to Section 163A of the M.V Act, maximum annual income that can be taken for computing compensation is Rs.40,000/-. Since the injured comes under the age group of above 36 years having monthly income of Rs.40,000/- by virtue of the schedule an amount of Rs.6,00,000/-

can be fixed as compensation."

MACA.No.1004 OF 2016(E)

7. Actually the Tribunal has taken the daily income of the

deceased as Rs.400/-. Considering the actual days of work the

deceased gets in a month as 15 days, the Tribunal has arrived at

Rs.72,000/- as the annual income. Evenafter fixing the annual

income as Rs.72,000/-, the Tribunal went on to assess the

compensation payable to the petitioners under Section 163A.

The petitioners cannot raise a claim for compensation under

Section 163A M.V. Act for the death of their near one, whose

annual income is above Rs.40,000/-. In the case on hand the

Tribunal has arrived at the annual income of the deceased as

Rs.72,000/- and then proceeded to calculate compensation

payable to the petitioners under Section 163 A M.V. Act. When

the deceased has an annual income above Rs.40,000/- the

Second Schedule will not permit his legal heirs to raise a claim

for compensation under Section 163A of the Act. The Tribunal

therefore has gone wrong in arriving at Rs.4,10,000/- as

compensation payable even after entering into a finding that the

deceased had annual income of Rs.72,000/-.

8. Even if the Tribunal has passed an award on the basis of

the monthly income got amended as Rs.3,300/-, the Tribunal will MACA.No.1004 OF 2016(E)

not be justified in doing so in the backdrop of the dictum laid

down by the Division Bench in National Insurance Company

supra. In the above circumstances, the award passed by the

Tribunal will not sustain legally and is liable to be set aside. The

appeal succeeds for the reason. The Tribunal is erred in

amending the monthly income as Rs.3,300/- and changing the

provision seeking compensation as Section 163A. In view of

National Insurance Company supra the Tribunal ought not to

have allowed the amendment seeking to modify the monthly

income from the originally claimed one and to fix the

compensation on its basis under Section 163A of the M.V Act.

9. Instead of relying on the amended monthly income, the

Tribunal has gone one step further by taking Rs.400/- as the

daily wage the deceased was getting and taking only 15 days as

the number of days of work he gets in a month. Even in that

calculation, the annual income of the deceased would come

above Rs.40,000/-. Therefore, the Tribunal is perfectly

unjustified in treating the claim petition maintainable under

Section 163A, overlooking the factum that the upper limit of

annual income fixed by the structured formula in the second MACA.No.1004 OF 2016(E)

Schedule for maintaining a claim under Section 163A is

Rs.40,000/-. In the light of the discussion made hereinabove,

this Court has no hesitation to hold that the impugned award will

not sustain.

In the result, MACA is allowed. The amendment allowed by

the Tribunal as well as the award passed by it suffer for the

reasons stated above and are set aside. The claim petition

originally having been preferred by the petitioners under Section

166 M.V. Act and the negligence on the 1st respondent, not

determined by the Tribunal, it is expedient in the interest of

justice to reconsider the claim of the petitioners for compensation

under Section 166 M.V. Act. For the purpose, O.P.(MV)

No.1604/2013 is remanded and restored to the files of the

Tribunal for consideration of compensation, if any, payable to the

petitioners under Section 166 M.V. Act.

MARY JOSEPH, JUDGE

ttb