High Court Kerala High Court

New India Assurance Company Ltd vs P.K. Padmavathi on 21 August, 2009

Kerala High Court
New India Assurance Company Ltd vs P.K. Padmavathi on 21 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 87 of 2004()


1. NEW INDIA ASSURANCE COMPANY LTD.,
                      ...  Petitioner

                        Vs



1. P.K. PADMAVATHI, AGED 70 YEARS,
                       ...       Respondent

2. GOVINDA SHETTI, S/O. NARASIMHAN CHETTI,

3. H.P. GIRISH, S/O. H.T. PALLASWAMI,

4. UNITED INDIA INSURANCE COMPANY,

5. S.V. JAAPRAKSH, S/O. S.V.VAYYAPURI,

6. S. SAKTHIVEL, S/O. SARAVANAN,

7. E.S. JAMES, S/O. STEPHEN,

                For Petitioner  :SRI.RAJAN P.KALIYATH

                For Respondent  :SRI.JOHN JOSEPH VETTIKAD

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :21/08/2009

 O R D E R
                  C .N. RAMACHANDRAN NAIR &
                       C. K. ABDUL REHIM, JJ.
                  --------------------------------------------
                       M.A.C.A. No. 87 OF 2004
                  --------------------------------------------
                 Dated this the 21st day of August, 2009

                               JUDGMENT

Ramachandran Nair, J.

Heard standing counsel appearing for the appellant and counsel

appearing for the claimant-respondent, and also standing counsel

appearing for the fourth respondent. The claimant is 70 year old lady

who lost her son aged 27 years, in the accident. Though the Claim

Petition was filed under Section 166, it was later converted into a claim

under Section 163A of the Act. The MACT awarded compensation

going by the formula stated in the Second Schedule. The total

compensation granted is Rs. 2,04,500/-. The MACT held that since it

is a claim awarded under Section 163A, liability has to be shared

between the insurance companies. However, there is a specific

direction to the appellant to deposit the entire amount and recover 50%

from the fourth respondent.

2. We have heard Sri. Rajan P Kalliyath, counsel appearing for

the appellant, who cited before us the decision of the Supreme Court in

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RAMESH SINGH V. SBBIR SINGH, (2008) ACC 765 (SC) wherein

the Supreme Court held that Second Schedule prescribed under Section

163A does not contain static principle and if the claimants are fairly

old, the Tribunal should not grant compensation going by the age of the

victim. Counsel for the appellant heavily relied on the age of the

claimant, who was 70 years of age as on the date making Claim

Petition, and according to him, the multiplier applicable going by her

age is only 5 as against 10 taken in this case, under the Second

Schedule. He further pointed out that even in a Section 166 claim,

eligible compensation would have been lesser because the multiplier

would have been only 5 and reduction in dependency should also be

taken after the normal age of marriage of the victim who was 27 years

at the time of his death. Counsel for the claimant on the other hand

contended that whatever be the contentions raised, the total

compensation granted for the death of 27 year old son of the claimant

on whom she was depending for her livelihood is only Rs. 2,04,500/-.

He further pointed out that if the claim was proceeded under Section

166, compensation would have been claimed under other heads, which

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is not the case herein, where the claim is considered and awarded under

Section 163A. Eventhough we find force in the various contentions

raised by counsel for the appellant, we do not think any interference is

called for in this case because the total compensation awarded is Rs.

2,04,500/- only. Even in the case of death of a very tender child, we

have noticed that courts have been granting compensation around Rs. 2

lakhs. Further, even going by the decision of the Supreme Court cited

by the appellant, wherein the Supreme Court says that life expectancy

of the claimant should also be reckoned while fixing the multiplier.

We find that the claimant who was 70 years of age at the time of filing

of the Claim Petition in the year 1998 is still alive which means that she

is 81 years of age now. Therefore going by the expectancy of life of

the claimant, which factually stands proved, we do not find any ground

to interfere with the multiplier applied on the facts of this case. We

therefore leave open the contentions raised by the appellant to be raised

in appropriate case for exhorbitant awards which may not be tenable

under Section 163A.

3. We do not find any logic in the MACT directing the appellant

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to deposit the entire amount after noticing that the liability is to be

shared between the two insurance companies. We therefore modify

the award directing both the insurance companies to deposit 50% of the

amount awarded with proportionate interest.

The Appeal is dismissed, but with the above observations.

(C.N.RAMACHANDRAN NAIR)
Judge.

(C. K. ABDUL REHIM)
Judge.

kk

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