Ajmilath and Others v. V.K. Rajan and The New Indian Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944** ## **MACA NO. 3336 OF 2015** ## **AGAINST THE AWARD DATED 27.04.2009 IN OPMV 2354/2004 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONERS:** - **1 AJMILATH,AGED 29 YEARS W/O.ABDUL LATHEEF(LATE).** - **2 ABDULLA, AGED 80 YEARS S/O IMBICHIKOYA.** - **3 PATHUMMA, AGED 55 YEARS W/O.ABDULLA,(ALL ARE RESIDING AT CHENANGARA HOUSE, P.O.PARAANNOOR,VIA NARIKUNNI,KOZHIKODE).** **BY ADV SMT.K.V.RESHMI** ## **RESPONDENT/RESPONDENTS:** **1 V.K.RAJAN, AGE NOT KNOWN, VARARAN KANDIYIL(H), P.O.ERAVANNUR, NARIKKUNI,KOZHIKODE-673585.** **2 THE NEW INDIAN ASSURANCE CO.LTD SHAFEER COMPLEX,6/975 D,OPP:YMCA, KANNUR ROAD, KOZHIKODE-673001, REPRESENTED BY ITS MANAGER.** **BY ADVS. R1 BY SMT.M.MANJU SRI.P.JACOB MATHEW SRI. P.JACOB MATHEW SRI. R.SUDHISH R BY SRI.MATHEW JACOB** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD** **ON 27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 3336 OF 2015** ..2.. ## **JUDGMENT** The appellants herein are the claimants in O.P. (MV)No.2354/2004 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. The parties in this appeal are referred to as per their status in the claim petition. 2. On 05.10.2004, while the deceased Abdul Latheef was riding a motor cycle bearing Registration No. KL11/H 4268, an autorickshaw bearing Registration No. KL11/M 5953 owned by the 1[st] respondent hit against the motor cycle and Abdul Latheef sustained grievous injuries. He was taken to the Medical College Hospital, Kozhikode where he succumbed to the injuries on the same day. The petitioners filed the original petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act' for short) claiming an amount of Rs.6,00,000/- as compensation for the death of the **MACA NO. 3336 OF 2015** ..3.. deceased. Before the Tribunal, the owner of the autorickshaw and the insurer were as arrayed respondents 1 and 2 respectively. 3. The 1[st] respondent filed a written statement denying the liability stating that he had transferred the autorickshaw to another person on the basis of an agreement executed on 04.09.2004 and that the vehicle was covered with a valid policy of insurance. 4. The 2[nd] respondent filed a written statement admitting insurance coverage of the autorickshaw, but contended that the driver of the autorickshaw was not holding driving licence and the insurance company is not liable to indemnify the 1[st] respondent. It was also contended that the accident happened solely due to the negligence of the deceased and that the amount claimed as compensation is excessive and exorbitant. 5. No oral evidence was adduced before the Tribunal. Exts. A1 to A4 and B1 to B4 documents were marked on **MACA NO. 3336 OF 2015** ..4.. the side of the petitioners and the respondents respectively. 6. The Tribunal found that the accident happened due to the negligence of the deceased, the rider of the motor cycle as well as the driver of the autorickshaw. The Tribunal observed that the driving licence of the deceased is seen created and there is no evidence to hold that he was wearing helmet. While fixing negligence, the Tribunal observed as follows: “The Charge, if any laid against the autorickshaw driver, it will not be binding on this court as it is usual that the police will charge sheet the driver of the bigger vehicle, particularly when the motor cyclist is dead. In such an accident the investigating officer will not make any further investigation to see whether the deceased was wearing helmet or whether he was holding driving license etc. They would simply lay charge against the driver of the bigger vehicle. However it is found that the autorickshaw driver was also charge sheeted u/s 3(1) of the Act. Therefore the court is unable to fix negligence either on the deceased or **MACA NO. 3336 OF 2015** ..5.. on the driver of the autorickshaw. As the collision of the two vehicle is admitted I am constrained to hold that the accident was occurred due to the negligence of both the drivers. Accordingly respondent No.1 would be liable to pay 50% of the compensation.” 7. The Tribunal found that, though the 1[st] respondent contended that he had transferred the autorickshaw before the accident, he has failed to prove the transfer of the vehicle. The Tribunal further found that the driver of the autorickshaw was holding Ext. B3 driving licence for light motor vehicle and autorickshaw will not come under the category of light motor vehicle and the 1[st ] respondent having entrusted the vehicle with a driver who has no licence to drive an autorickshaw, the insurer is not liable to indemnify the 1[st ] respondent. The Tribunal exonerated the insurer and made the 1[st] respondent liable for 50% of the compensation. 8. The Tribunal assessed an amount of Rs.1,45,500/as total compensation for the death of the deceased in the **MACA NO. 3336 OF 2015** ..6.. accident. The split up of the compensation awarded by the Tribunal is as follows: |Sl.No.|Heads|Amount awarded| |---|---|---| |1.|Dependency|1,32,000| |2.|Pain and sufering|5,000| |3.|Love and afection|5,000| |4.|Funeral expenses|2,500| |5.|Transportation|1,000| ||Total|1,45,500/-| As the Tribunal has fixed the contributory negligence of the deceased as 50%, an award of Rs. 72,750/- with interest at 7% per annum was passed and directed the 1[st] respondent to satisfy the award after deducting the amount paid by the insurer under Section 140 of the Act and leaving liberty to the insurer to recover the said amount from the 1[st] respondent. **MACA NO. 3336 OF 2015** ..7.. 9. Aggrieved by the findings of the Tribunal with regard to the contributory negligence, exoneration of the insurer from the liability to satisfy the award and dissatisfied with the amount awarded as compensation, the petitioners, who are the wife and parents of the deceased have preferred this appeal. 10. The Tribunal has attributed contributory negligence on the deceased on the assumption that the deceased was riding the motor cycle without obtaining driving license and without wearing helmet. The Hon'ble Supreme Court in **Sudhir Kumar Rana** _**v**_ **. Surinder Singh [2008 (3) KHC 883: 2008 ACJ 1834: 2008 (3) KLT 322: AIR 2008 SC 2405 : 2008 (12) SCC 436]** has held that, if a person drives a vehicle without a licence, that by itself cannot lead to a finding of negligence as regards the accident. The Court held thus: “9. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our **MACA NO. 3336 OF 2015** ..8.. opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two - wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.” The decision in **Sudhir Kumar Rana** (supra) was relied on by the Hon'ble Supreme Court in **Dinesh Kumar. J @ Dinesh J.** _**v**_ **. National Insurance Co. Ltd and Others [2017 KHC 6871: 2018 (1) SCC 750: 2018 ACJ 535]** and by this Court in **Mohammed Noufal.T.** _**v**_ **. Saheed and Others [2018 (1) KHC 507: 2018 (1) KLT 499: 2018 (1) KLJ 740]** , **Satheesan E.K.** _**v**_ **. Musthafa K.P. and Another [2018 (5) KHC 884: 2018 (4) KLT 337: ILR 2018 (4) Ker. 214: 2019 (1) KLJ 172]** and in **MACA NO. 3336 OF 2015** ..9.. _**v**_ **Sathy M.C. and Others . K. Venugopalan and Others** . **[2020 KHC 420: 2020 (4) KLT 471: 2021 ACJ 75]** There is no cogent evidence to prove any negligence on the part of the deceased in riding the motorcycle. 11. The Tribunal has observed that there is no evidence to show that the deceased was wearing helmet. In the absence of contra evidence, the Tribunal cannot attribute contributory negligence on the part of the deceased for non wearing of helmet. This Court, in **National Insurance Co. Ltd. and Others** _**v**_ **. Kadeeja Musliyar and Others [2021 (3) KHC 1: 2021 (3) KLT 45: ILR 2021 (2) Ker. 810: 2021 (2) KLJ 988]** , relying on the Division Bench decision in _**v**_ **. Jose P.J. and Others Niyas and Others [2016 (1) KHC 485: 2016 (1) KLJ 596:2016 (1) KLT 589: ILR 2016 (1) Ker. 883:2017 ACJ 170]** , has held that merely because there is violation of Section 129 of the Act which deals with wearing of protective headgear by a victim in an accident, there is no **MACA NO. 3336 OF 2015** ..10.. presumption that there is contributory negligence on the part of the person who was not wearing the helmet. 12. The Tribunal, on the basis of mere suspicion, conjectures and surmises, came to the conclusion that the deceased was guilty of contributory negligence. On the basis of the binding precedents cited supra, the contributory negligence found against the deceased is set aside. 13. The finding of the Tribunal that the driver of the autorickshaw was not having a valid licence to drive an autorickshaw, also cannot be sustained. The Tribunal found that the driver of the autorickshaw was holding driving licence for light motor vehicle and autorickshaw will not come under the category of light motor vehicle. _**v**_ . The Hon'ble Supreme Court in **Mukund Dewangan Oriental Insurance Company Limited [2017 (4) KHC 648: 2017 (14) SCC 663]** considered, _inter alia,_ the question whether a person holding a driving licence in **MACA NO. 3336 OF 2015** ..11.. respect of “light motor vehicle”, could on the strength of that licence, be entitled to drive a “transport vehicle of light motor vehicle class” having unladen weight not exceeding 7500 kgs. The Court held that a driver who is having license to drive light motor vehicle and is driving transport vehicle of that class, is not required to obtain an endorsement to drive transport vehicle. The Hon'ble Supreme Court held as follows: 60.1. “Light motor vehicle” as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994. 60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, “unladen weight” of which does not exceed 7500 kg and holder of a driving licence to drive class of “light motor vehicle” as provided in Section **MACA NO. 3336 OF 2015** ..12.. 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form. 60.3. The effect of the amendment made by virtue of Act 54 of 1994 w.e.f. 14-11-1994 while substituting clauses (e) to (h) of Section 10(2) which contained “medium goods vehicle” in Section 10(2)(e), “medium passenger motor vehicle” in Section 10(2)(f), “heavy goods vehicle” in Section 10(2)(g) and “heavy passenger motor vehicle” in Section 10(2)(h) with expression “transport vehicle” as substituted in Section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of Section 10(2)(d) and Section 2(41) of the Act i.e. light motor vehicle. 60.4. The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the **MACA NO. 3336 OF 2015** ..13.. procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.” This Court is aware that the decision in **Mukund Dewangan** (supra) has been referred to a larger Bench in _**v**_ **. M/s. Bajaj Alliance General Insurance Co. Ltd. Rambha Devi & Ors [2022 KHC 6267]** , but the decision holds good as on today. In this context, it is apposite to refer to paragraph 47 of the decision of the Division Bench of this Court in **Branch Manager, The New India Assurance Company Ltd.** _**v**_ **. Vinod C.S. and Another [2016 KHC 528: 2016 (3) KHC SN 20: 2016 (2) KLJ 818: 2016 (3)KLT 817: AIR 2016 NOC 767: 2017 ACJ 2750]** , which reads thus: **MACA NO. 3336 OF 2015** ..14.. “47. Merely for the reason that the decision rendered by the earlier Bench came to be doubted by the subsequent Co-ordinate Bench, by passing an order of reference to place it before a Larger Bench, it cannot be said that the same will amount to stay of the earlier verdict, nor does it mean that the earlier verdict will be inoperative. The law declared by the Apex Court is the law of the land by virtue of Art.141 of the Constitution of India. Unless and until it is varied, the earlier decision remains intact and the reference made by the subsequent Co-ordinate Bench cannot have any adverse consequence in so far as the declaration of the law is concerned.” In the light of the decision of the Apex Court **Mukund Dewangan** (supra), the insurance company cannot be exonerated from the liability to indemnify the insured for the reason that the driver of the autorickshaw was not having a valid license to drive an autorickshaw. Accordingly, the findings of the Tribunal fastening the liability on the 1[st] respondent/owner is hereby set aside and the liability is fastened on the insurance company to **MACA NO. 3336 OF 2015** ..15.. indemnify the 1[st] respondent. 14. With regard to the quantum of compensation, the deceased was aged 25 years at the time of the accident and was a coolie. The petitioners claimed that the deceased was earning Rs. 7,000/- per month. The Tribunal has taken the monthly income of the deceased as Rs.1,500/-. In **Ramachandrappa** _**v**_ **. Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236: AIR 2011 SC 2951]** , the Hon'ble Supreme Court has taken the notional income of a manual worker in the year 2004 as Rs.4,500/-. Therefore, taking guidance from the said decision, I re-fix the notional monthly income of the deceased as on the date of accident (05.10.2004) as Rs.4,500/-. Following the dictum in _**v.**_ **National Insurance Company Ltd. Pranay Sethi [2017 (5) KHC 350: 2017 (16) SCC 680: 2017 (4) KLT 662: ILR 2017 (4) Ker. 513:]** , 40% of the income has to be added towards future prospects. Accordingly, **MACA NO. 3336 OF 2015** ..16.. the monthly income of the deceased with 40% addition towards future prospects would come to Rs.6,300/(Rs.4,500 + 1,800). Since there are 3 dependents, a deduction of 1/3[rd] has to be made towards personal and living expenses of the deceased. After deducting one-third of the income towards personal expenses, the income to be taken for assessment of loss of dependency is Rs. 4200/-. The date of birth of the petitioner as per Ext. A4 driving licence is 10.01.1979. His age as on the date of accident is 25 and the multiplier to be adopted is '18'. Hence, the compensation for loss of dependency is refixed as Rs.9,07,200/- (4200×12×18). Since the Tribunal has awarded an amount of Rs.1,32,000/- as compensation under the head loss of dependency, the petitioners are entitled for an enhanced amount of **Rs.7,75,200/-** (Rs.9,07,200-1,32,000) under the said head. 15. Towards compensation for pain and suffering, the Tribunal has awarded an amount of Rs.5,000/-. In the **MACA NO. 3336 OF 2015** ..17.. light of the decision of the Hon'ble Supreme Court in **United India Insurance Co.Ltd.** _**v.**_ **Satinder Kaur [AIR** **2020 SC 3076]** , the petitioners are not entitled for compensation under the said head and Rs.5,000/- is to be deducted from the total compensation. 16. No amount has been awarded under the head 'compensation for loss of consortium'. Following the ratio in **Pranay Sethi** (supra), the petitioners are entitled for an amount of Rs.40,000/- each and accordingly, they are entitled for **Rs.1,20,000/-** (40,000×3) towards compensation under the above head. 17. Towards compensation for loss of love and affection, an amount of Rs.5,000/- has been awarded. The Hon'ble Supreme Court has held in **Satinder Kaur** (supra) that, when compensation is awarded for loss of consortium, there is no justification in awarding compensation towards loss of love and affection as a separate head. Accordingly, **Rs.5,000/-** awarded under **MACA NO. 3336 OF 2015** ..18.. the said head has to be deducted from the total compensation. 18. Towards funeral expenses, the petitioners were awarded an amount of Rs.2,500/-. Going by the decision in **Pranay Sethi** (supra), Rs.15,000/- can be awarded as compensation under the said head and the petitioners are entitled for an enhanced amount of **Rs.12,500/-** (Rs.15,000-2,500). 19. Towards loss of estate, no amount has been awarded by the Tribunal. Going by the decision in **Pranay Sethi** (supra), **Rs.15,000/-** can be awarded as compensation under the said head. It is awarded. 20. The Tribunal has awarded an amount of **Rs.1,000/-** towards compensation for transport to hospital and I find that the said amount is just and reasonable. 21. Accordingly, the compensation awarded by the Tribunal is re-worked as follows: **MACA NO. 3336 OF 2015** ..19.. |**Sl.**<br>**No.**|**Heads of claim**|**Amount**<br>**awarded by**<br>**Tribunal**|**Amount**<br>**modifed and**<br>**fxed by this**<br>**Court**|**Diference in**<br>**the amount**<br>**awarded**| |---|---|---|---|---| |1.|Dependency|1,32,000|9,07,200|+7,75,200/-| |2.|Pain<br>and<br>sufering|5,000|--|- 5,000| |3.|Love<br>and<br>afection|5,000|--|-5,000| |4.|Loss<br>of<br>consortium|--|1,20,000|+1,20,000| |5.|Funeral<br>expenses|2,500|15,000|+12,500| |6.|Loss of estate|--|15,000|+15,000| |7.|Transportation|1,000|1,000|--| ||Total|1,45,500/-|10,58,200/-|9,12,700/-| 22. In the result, the petitioners are entitled for an enhanced amount of **Rs.9,12,700/-** (Rs.10,58,2001,45,500). Since the finding of the Tribunal regarding the contributory negligence is set aside, the petitioners are **MACA NO. 3336 OF 2015** ..20.. entitled for an amount of **Rs.9,85,450/-** (72,750+9,12,700) as total compensation. The 2[nd] respondent insurance company is liable to satisfy the award and shall deposit the same with 7% interest per annum from 04.12.2004 till the date of deposit with proportionate costs, within a period of two months from the date of receipt of a copy of this judgment, after deducting the liabilities, if any, of the petitioners/ appellants towards tax, balance court fee and legal benefit fund. While calculating interest, the petitioners will not be entitled for interest for a period of 2311 days, as per the order dated 09.09.2021 in C.M. Application No.1/ 2015 in this appeal. The appeal is allowed to the said extent. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB/30/07/2022