IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2310 of 2008()
1. THE NEW INDIA ASSURANCE CO. LTD.,
... Petitioner
Vs
1. BALACHANDRAN NAIR (DIED),
... Respondent
2. GEETHAKUMARI, W/O.LATE BALACHANDRAN
3. CHANDRALEKHA (MINOR),
4. MADHAVI, M/O. LATE BALACHANDRAN NAIR,
5. VENUGOPALAN,
6. JOSE RAJ, S/O. MANUEL,
For Petitioner :SRI.KKM.SHERIF
For Respondent :SRI.J.HARIKUMAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :19/12/2008
O R D E R
M.N. KRISHNAN, J
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M.A.C.A.No. 2310 OF 2008
---------------------------------
Dated this the 19th day of December, 2008
JUDGMENT
This appeal is preferred against the award of the Motor
Accident Claims Tribunal, Neyyattinkara in O.P.(MV) No.1509/2002.
One Balachandran Nair sustained injuries in a road accident that
took place on 19.9.2002. He died in the year 2005 and his legal
representatives had been impleaded as per I.A. 2335/05 dated
1.8.05. On account of the accident, the said Balachandran Nair
sustained a fracture of spine L1 and he was treated in the Medical
College hospital, Thiruvananthapuram as inpatient from 19.9.2002
to 23.9.2002. The parties produced disability certificate of 8% and
the tribunal fixed monthly income at Rs. 2,000/-, then multiplied by
a multiplier of 15 and awarded a compensation of Rs. 59,300/-.
It is against that decision the Insurance Company has come up in
appeal.
2. Two points urged by the learned counsel in this court are
that on account of the bar under Section 305 of the Indian
Succession Act, cause of action will not survive for the legal
representatives and therefore the tribunal should not have allowed
M.A.C.A. 2310/2008
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the claim application. It is also contended that the tribunal went
wrong in applying the multiplier of 15, when the person did not live
for more than three years after the accident. There has been no
case that the death is on account of the injuries sustained in the
accident. So far as the first question that has been canvassed
before me regarding the non maintainability of the application by
the legal representatives of the deceased, the matter is squarely
covered by the decision of this court reported in Anuradha Varma
v. State of Kerla [1993 (2) KLT 777]. The Division Bench
considered the provisions of the Torts (Miscellaneous Provisions)
Act, 1977 section 2 and 9 and held that the right to claim damages
survives to legal representatives. The Division Bench held that
“In the light of Section 2 of the Kerala Torts
(Miscellaneous Provisions), Act 1977 even such claims
survive the death of the injured. By Section 9 of the
aforementioned Act, Section 306 of the Indian
Succession Act, 1925 so far as it relates to the rights of
action in torts, shall cease to apply to the State of
Kerala. Accordingly the legal representatives are
entitled to initiate an action for such damages or to
proceed with the claim already made by the injured.”
So in the light of this decision and the Act referred to therein the
M.A.C.A. 2310/2008
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cause of action will survive and the petition is perfectly
maintainable.
3. Now the second question is regarding the quantum of
compensation. It can be seen that the tribunal has applied
multiplier of 15. It is true for the age group 40 – 45 years, the
multiplier of 15 is to be taken. But here is a case where on the date
of the determination of the case, the claimant was not alive and he
had lived only for three years after the accident. The death is not
on account of the injuries sustained in the accident and therefore
the disability compensation even if calculated in full for period can
be three. When it is done in this case, the disability compensation
would come to Rs. 5,760/- instead of Rs. 28,800/-, thereby
reduction of Rs. 23,040/-. So the compensation will get reduced to
Rs. 36,260/-. I had considered the other heads as well and I find
that a middle aged man after the sustainment of the injuries had
died, though not on account of the injuries sustained, but it is
certain it has affected him badly and therefore I consider it proper
to enhance the compensation for pain and suffering by Rs. 3,000/-
and to the loss of earning capacity another Rs. 6,000/-, making it
Rs. 9,000/-. When this is added to the compensation of
M.A.C.A. 2310/2008
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Rs. 36,260/-, the entitlement will be Rs. 45,260/-. Therefore the
award is modified accordingly.
In the result, the M.A.C.A is disposed of re-fixing the
compensation at Rs. 45,260/- with 7.5% interest from 9.12.2002 till
realisation and the liability and the percentage entitlement of each
of the claimant has to be as ordered by the tribunal.
The M.A.C.A is disposed of accordingly.
M.N. KRISHNAN,JUDGE
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