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2009 DIGILAW 864 (KER)

Joseph v. Giji Varghese

2009-09-15

C.K.ABDUL REHIM, C.N.RAMACHANDRAN NAIR

body2009
Judgment :- Abdul Rehim, J. 1. The appellant herein is the claimant before the Tribunal. The appellant's brother Pappachan alias Thomas sustained fatal injuries when a Jeep knocked down him on the public road, on 2.11.1995. The deceased succumbed to the injuries after 33 years of the accident. The deceased was an unmarried man. Others sibling of the deceased were impleaded as respondents 4 to 8 before the Tribunal. According to the appellant/claimant the deceased was an Agriculturist earning monthly income of Rs. 2500/-. The deceased was aged 54 years at the time of accident. The Tribunal found that neither the claimant nor the other sibling are dependents of the deceased, and hence they are not entitled for any compensation under the head of dependency. The Tribunal found that the appellant/claimant as well as respondent 4 to 8 are entitled for a total compensation of Rs.26,500/-. But considering the provisions under Section 140 of the M.V. Act, an amount of Rs.50,000/- was awarded. The claimant as well as respondents 4 to 8 were allowed equal right over the amount of compensation. 2. Heard the learned counsel for the appellant and Standing Counsel appearing for 3rd respondent insurance company. The appellant contended that the deceased was unmarried and having no issues, and that the deceased was living along with the appellant. According to learned counsel for the appellant, even when a claim is raised under Section 166 of the M.V. Act, the Tribunal is obliged to bear in mind the quantum of compensation which the claimant would have received under Section 163A and the compensation awarded under Section 166 can never be lesser than what is payable under the structured formula in Schedule II under Section 163A of the Act. In support of the above contention counsel for the appellant had placed reliance on a decision of this Court in National Insurance Company Ltd. Vs. Muneer (2003(1) KLT 137). According to learned counsel for the appellant the compensation provided under second schedule in Section 163A of the Act an be taken as a guideline while determining compensation under Section 166 also, and therefore the compensation for dependency ought to have been calculated based on the second schedule, is the contention. He had also placed reliance on the decision in Supe Dei (Smt) and Others Vs. National Insurance Company Limited and Another ((2009) 4 SCC 513). 3. He had also placed reliance on the decision in Supe Dei (Smt) and Others Vs. National Insurance Company Limited and Another ((2009) 4 SCC 513). 3. In the case at hand the deceased was an unmarried Agriculturist aged 54 years. Sibling of the deceased are living separately along with their families. The deceased was living along with the appellant/claimant. There is absolutely no evidence on record to show that neither the appellant nor respondents 4 to 8 are dependent on the income of the deceased. Therefore it is an admitted fact that the claimants are not dependents on the deceased. The question to be considered in such a situation is as to whether the Tribunal is bound to give minimum compensation payable under the structured formula. 4. Before entering on any finding on the question as to whether the Tribunals are bound to award minimum compensation as provided under the structured formula in claims under Section 166, it is necessary to examine whether the claimant and respondents 4 to 8 in this case would have been eligible for the total amount of compensation as provided under the second schedule, if the claim was under section 163A. We notice that in a number of cases the Hon'ble Supreme Court held that even in claims under Section 163A the structured formula under the schedule need be treated only as a guideline. In U.P. State Road Transport Corporation v. Trilok Chandra, ((1996) 4 SCC 362) the Hon'ble Supreme Court had pointed out in detail about the short comings in the schedule and held that the schedule can only be used as a guide. It was also held that the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. In a recent decision of the Hon'ble Supreme Court in Ramesh Singh and Another V. Satbir Singh and Another ((2008) 1 ACC 765 (SC)) it found that under Section 163A only a system was introduced wherein the burden of proving negligence was avoided and thereby a speedy remedy was provided, but the selection of multiplier cannot in all cases under Section 163A be dependent on the age of the deceased. If a young man is killed in the accident leaving behind aged parents who may not survive long enough to match with a high multiplier provided in the second schedule then the Court has to offset such high multiplier and balance the same with the short life expectancy of the claimants. Going by the above principle it is clear and evident that the structured formula under Section 163 A is not a blind rule which need be followed considering the age of the deceased in all cases. On the other hand in a case under Section 163A also, the factor of multiplier need be adopted according to the factual situation prevailing in each and every case. So also it can only be held that in a case where the dependency of the claimants on the income of the deceased is nil on the basis of the factual situations, the compensation under the structured formula of the second schedule could not be granted, even if the claim is under Section 163A. Apart from that, in many decisions of this Court and the apex Court it is held that a claim under Section 163A and a claim under Section 166 are distinct and mutually exclusive. Therefore we have no hesitation to hold that in a case where the claimants are not dependents no amount can be awarded taking note of the multiplier based on the age of the deceased or on the age of the claimant as provided under structured formula in the second schedule under Section 163A. Therefore on the facts of the case at hand we find no interference is called for with respect to non-awarding of any amount under the head of dependency. 5. The learned counsel for the appellant further raised a contention that even though there is no loss of dependency, there is loss of estate to the claimants and respondents 4 to 8, they being legal heirs of the deceased. The contention is that the Tribunal ought to have granted compensation considering the loss of estate. It has come out in evidence that the deceased was an Agriculturist. Eventhough there is no proof regarding quantum of income derived by the deceased, it can be presumed that the deceased was earning some amount out of agricultural operations. The contention is that the Tribunal ought to have granted compensation considering the loss of estate. It has come out in evidence that the deceased was an Agriculturist. Eventhough there is no proof regarding quantum of income derived by the deceased, it can be presumed that the deceased was earning some amount out of agricultural operations. If that be so, whatever surplus amount, which will remain after meeting personal expenses of the deceased, would have been his savings which ultimately could have developed upon his sibling (legal heirs) as his estate. Taking view of the matter in this angle, we are of the opinion that the tribunal ought to have granted compensation under the head of loss of estate. On our moderate estimate we arrive that the deceased was getting notional income of Rs.1500/- per month Considering the fact he had no wife and children 2/3rd of the amount can be deducted towards his personal expenses. Based on the age of the deceased the correct multiplier to be adopted is 11. Therefore 1/3rd of the earnings can be computed as loss of estate of the deceased. Thus the legal heirs of the deceased are entitled to get an amount of Rs.66,000/-towards loss of estate. We are inclined to award the said amount. Hence the total compensation need be re-fixed at Rs.92,500/-(Rs.66,000- Rs.26,500). 6. In the result the appeal is partly allowed re-fixing the total compensation payable to the appellant and respondents 4 to 8 as Rs.92,500/-. Compensation under Section 140, if any paid, shall be set off against the said amount. The amount of compensation shall be shared equally among the appellant and respondents 4 to 8. The 3rd respondent insurance company will make payment of the amount of compensation within a period of three months.