Motor Vehicles Act; United India Insurance Vs. Madhavan [Kerala High Court, 13-07-2011]

Motor Vehicles Act, 1988 – Ss. 140, 163A & 166 – Assessment of Compensation – Multiplier method – In respect of the compensation payable for fatal accidents, multiplier shown against each entry of the table/chart is irrelevant.

2011 (3) KLT 452 : 2011 (3) KLJ 625 : ILR 2011 (3) Ker. 588 : 2011 (3) KHC 299


IN THE HIGH COURT OF KERALA

R. BASANT AND N.K. BALAKRISHNAN, JJ.

Dated this the 13th day of July, 2011

M.A.C.A. No. 1763 of 2009 (A)

For Petitioner: P.V. Jyothi Prasad, Advocate. For Respondents: S.A. Saju Jamsheed Hafiz

J U D G M E N T

BASANT, J.

This appeal comes up for admission now. The respondents/claimants are served. The insurer is the appellant. Compensation is claimed by the claimants for the loss suffered by them on account of the death of their son, a young person, aged about 14 years. Father and mother of the deceased are the claimants. The claim was initially staked under Section 166 of the Motor Vehicles Act. The deceased was a passenger in a taxi jeep. The appellant is the insurer in respect of that vehicle. The claim was staked against the driver, owner and insurer of the vehicle in which the deceased was travelling as also the driver and owner of another vehicle which was also involved in the accident.

2. As stated earlier, the claim was initially lodged under Section 166 of the Motor Vehicles Act. In the course of the proceedings – evidently after realising that the other vehicle involved in the accident was not covered by a valid policy of insurance, the claimants prayed that driver and owner of the other vehicle may be deleted from the party array. They were accordingly deleted. A request was made that the claim may be reckoned as one under Section 163 A of the Motor Vehicles Act. That request was allowed by the Tribunal and the claim was considered as one under Section 163 A of the Motor Vehicles Act. The Tribunal came to the conclusion that the claimants are entitled to an amount of Rs.2,29,500/- as per the details shown below:

i) Compensation for fatal accident (under entry 1 of second schedule) (15,000 X 15) : Rs.2,25,000.00

ii) Funeral expenses : Rs. 2,000.00

iii) Loss of estate : Rs. 2,500.00


Total : Rs.2,29,500.00

=========

3. The insurer challenges the award. It is first of all contended that alteration of a claim from Section 166 of the Motor Vehicles Act to Section 163 A of the Motor Vehicles Act and the deletion of the driver and owner of the other vehicle from the party array was ill conceived. The claimants cannot be assumed to have such a discretion to delete the owner and driver of the other vehicle from the array of parties. Merely because the other vehicle had not been insured, the appellant herein should not have been mulcted with the entire liability under Section 163 A of the Motor Vehicles Act, it is urged.

4. The right of the claimant to request that his claim lodged initially under Section 166 of the Motor Vehicles Act may be converted and treated as one under Section 163 A of the Motor Vehicles Act cannot possibly be doubted. If there be any doubt on that aspect, the last trace of such doubt must be held to have been set at rest by the recent decision of the Supreme Court in

Oriental Insurance Co.Ltd. V. Dhanbai Kanji Gadhvi (SC) [2011 (1) KLT 617 (SC)]

That decision is authority for the proposition that until an award is passed either under Section 166 or under Section 163 A of the Motor Vehicles Act, the claimant has the right to request that his claim may be considered under either of the two Sections. That decision refers to the earlier decision in

Deepal Girishbhai Soni v. United India Insurance Company Ltd. [2004 (2) KLT 395 SC]

It is clarified that Deepal Girishbhai Soni does not fetter the option of the claimant who chooses to press the claim either under Section 166 or under Section 163 A of the Motor Vehicles Act if the claim under the other section has not been decided and ordered earlier.

5. Therefore it is crystal clear that the exercise of option by the claimants to reckon their claim as one under Section 163A of the Motor Vehicles Act is absolutely justified. That conversion of the claim cannot possibly be faulted.

6. The next question is whether in a claim under Section 163A of the Motor Vehicles Act, the driver, owner and insurer (if any) of the other vehicle involved in the accident are necessary parties and whether the non impleadment of such driver, owner and insurer would adversely affect the claim under Section 163A against the owner and insurer of the vehicle involved. There is nothing in Section 163A to show that when two vehicles are involved, the claim must be staked against the owner and insurer of both vehicles. As in the case of Section 140, we must hold that option is of the claimants to claim against the owner/insurer of either or both the vehicles. A claim under Section 163A can lie only against the owner of the vehicle and the authorised insurer. It cannot lie against a driver (unless he is the owner also). The language of Section 163 A makes the position crystal clear. In this case evidently realising the difficulty of recovering the amount from the owner of the other vehicle, which was not insured, the claimants have chosen to stake their claim only against the owner and the insurer of the vehicle in which the deceased was travelling. That option of the claimants is not in any way fettered or restricted by the language of Section 163 A. We therefore feel it absolutely safe to conclude that in a claim under Section 163 A, option is on the claimants, where plurality of vehicles are involved in the accident, to stake the claim against either or both the owners/insurers of the vehicles involved. In that view of the matter, the claim in this case against the owner and insurer of the vehicle, in which the deceased was travelling without arraying the owner and insurer of the other vehicle involved in such accident, is perfectly justified and cannot be faulted. The challenge on that aspect is also found to be without any merit.

7. The learned counsel for the appellant then raises an incidental challenge against the quantum of compensation awarded. The deceased was a person, aged below 15 years. The second schedule has clauses (ie. clauses 1 to 6). Claim for compensation in respect of death of persons must be considered as per clause 1 dealing with compensation payable for third party in a fatal accident case. Under clause 1 of second schedule, a ready reckoner Chart/Table is given (hereinafter referred to as the Table/Chart). The table/chart has horizontal entries and vertical columns. Horizontal entries (entries 1-12) relate to the age groups. The chart/table has vertical columns. There are columns 1 to 13 which show the income of the deceased. The task to ascertain compensation is simple. Identify the horizontal entry appropriate to the deceased. Then identify the vertical entry appropriate to the earnings of the deceased. Then ascertain the figure relevant to the horizontal entry against the relevant column. The relevant entry gives the amount in thousands. That is the compensation amount. Reduce that by 1/3rd as insisted by the Note under the Chart/Table. That is the amount of compensation payable. Horizontal entry 1 of the table/chart relates to compensation payable in respect of the deceased persons who are aged up to 15 years. Such persons may either be earning persons or non earning persons. Columns 1 to 13 of the table/chart under entry 1 of Schedule 2 deal with persons having different amounts of annual income. Even in respect of a non earning person as per clause 6 of second schedule, Rs.15,000/- can be assumed to be the annual income. The deceased in this case was an unemployed boy below the age of 15 years. The Tribunal rightly pressed into service the presumption of prudence available under clause 6 of Schedule 2 and reckoned the annual income to be Rs.15,000/-.

8. The Tribunal thereupon appears to have felt that the multiplier has got to be chosen. This error, we find, is committed by many Tribunals. We also take note of the observation of the apex court in paragraph 8 of