Anjali v. Ragesh, Prajeesh, HDFC ERGO General Insurance Co. Ltd., Soman (deceased) and Nandini (LRs) – Review Petition in RP 516 of 2021 against MACA 1716/2014, High Court of Kerala

RP NO. 516 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 5[TH] DAY OF JANUARY 2022 / 15TH POUSHA, 1943** **RP NO. 516 OF 2021** **AGAINST THE ORDER/JUDGMENT IN MACA 1716/2014 OF HIGH COURT OF** ## **KERALA** ## **REVIEW PETITIONER/APPELLANT/3RD PETITIONER:** * ANJALI, AGED 34 YEARS W/O.LATE NIDHEESH, KARIPAL HOUSE, P.O.KOTTOOLI, KOZHIKODE - 673 016. LR'S RECORDED BY ADV E.NARAYANAN ## **RESPONDENTS/RESPONDENTS/RESPONDENTS AND PETITIONERS 1 AND 2:** - 1 RAGESH, AGE NOT KNOWN, S/O.NARAYANAN, S/O.NARAYANAN, THAZHERAMATHKANDI HOUSE, AYANCHERRY, VADAKARA, KOZHIKODE, PI - 673 544. - 2 PRAJEESH, AGE NOT KNOWN, S/O.NARAYANAN, RAMATHKANDY HOUSE, AYANCHERRY, VADAKARA, KOZHIKODE, PIN:673 544. - 3 HDFC ERGO GENERAL INSURANCE CO.LTD. YMCA ROAD, CHAIRSMAC, GROUND FLOOR, 6/845, KOZHIKODE 673 001 REPRESENTED BY THE MANAGER. 4 * SOMAN, AGED 71 YEARS (DECEASED) S/O.GOPALAN, VAYAPPURATH HOUSE, PUTHIYANGADI, EDAKKAVU P.O., KOZHIKODE DIST. - 673 021. RP NO. 516 OF 2021 2 5 * NANDINI, AGED 55 YEARS, W/O.SOMAN, KANIYAMKANDI THAZHAM PARAMBA, VAYAPPURATH HOUSE, PUTHIYANGADI, EDAKKADU P.O., KOZHIKODE DIST. - 673 021. LR'S RECORDED LEGAL REPRESENTATIVES RECORDED THE REVIEW PETITIONER AND 5TH RESPONDENT ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 4TH RESPONDENT VIDE ORDER DATED 22.12.2021 IN IA 5/2021 IN RP 516/2021 IN MACA 1716/2014. BY ADV M.MANJU THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 05.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RP NO. 516 OF 2021 3 ## **ORDER** The review petition is filed regarding the nonconsideration of the apportionment of the compensation amount between the review petitioner and the respondents 4 and 5. 2. The review petitioner was the appellant in the appeal and the 3[rd] petitioner in OP(MV) No.325/2012 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikkode. The respondents 1 to 3 in the review petition were the respondents 1 to 3 in the appeal and the respondents before the Tribunal. The respondents 4 and 5 in the review petition were the respondents 4 and 5 in the appeal and the petitioners 1 and 2 before the Tribunal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 3. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Nidheesh, son of the petitioners 1 and 2 and the husband of the 3[rd] petitioner. It was 4 RP NO. 516 OF 2021 their case that, while the deceased was traveling in a car belonging to the 1[st] respondent and insured with the 3[rd] respondent, due to the negligence of the 2[nd] respondent the deceased was thrown out of the car and lost his life. The Tribunal, allowed the claim petition in part, by permitting the petitioners to realise from the 3[rd] respondent an amount of Rs.6,38,000/- with interest and cost. The Tribunal further directed the compensation amount to be apportioned between the petitioners in the ratio 2:1:1. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal and aggrieved by the apportionment of the compensation, the 3[rd] petitioner filed MACA No.1716/2014 before this Court. 5. This Court by the impugned judgment allowed the appeal by directing the 3[rd] respondent to pay an additional amount of Rs.6,60,400/- with interest and cost. However, this Court failed to consider the question whether the apportionment of compensation determined by the Tribunal RP NO. 516 OF 2021 5 was correct and also did not decide on how the enhanced compensation has to be apportioned. 6. Aggrieved by the non-consideration of the question of apportionment of the compensation between the petitioners, the 3[rd] petitioner/appellant has filed this review petition. 7. Heard Sri.E. Narayanan, the learned counsel appearing for the review petitioner/appellant/3[rd] petitioner, Sri. R. Sudhish, the learned counsel appearing for the respondents 1 and 2 and Sri. K.B. Ramanand, the learned counsel appearing for the 3[rd] respondent/insurer. 8. Although notice was issued to the respondents 4 and 5 in the review petition, the notice to the 4[th] respondent was returned with the endorsement that the '4[th] respondent is no more'. Accordingly, the review petitioner got the 5[th] respondent recorded as the sole legal representative of the deceased 4[th] respondent. Even though notice was served on the 5[th] respondent, there is no appearance for her. 9. The sole question that now arises for consideration in 6 RP NO. 516 OF 2021 this review petition is regarding the apportionment of compensation between the review petitioner and the 5[th] respondent. 10. The review petitioner is the widow and the respondents 4 and 5 were the parents of Nidheesh. Indisputably, the 4[th] respondent – father of the deceased is now 'no more'. Therefore, only the petitioner and the 5[th] respondent are the legal representatives of the deceased Nidheesh. The Tribunal had in the impugned award directed the compensation amount to be apportioned between the petitioner and the respondents 4 and 5 in ratio of 1:2:1. 11. This Court in **Glanis vs. Lazar Manjila** [2020 (4) KLT 222] has categorically held that the entitlement of a widow for compensation consequent to the death of her husband will not diminish even after her re-marriage. 12. Taking into consideration the admitted fact that the 4[th] respondent-father of the deceased is now no more and that the petitioner and the 5[th] respondent are the sole legal RP NO. 516 OF 2021 7 representatives of the deceased Nidheesh, in supersession of the impugned judgment in MACA No.1716/2014, I direct the Tribunal to disburse the compensation amount, as per the impugned award and the enhanced compensation as per the impugned judgment in the appeal, in the ratio of 1:1 between the review petitioner the 5[th] respondent and in accordance with law. All the other findings of this Court in MACA No.1716/2014 are kept intact and not interfered with. This order shall be read in conjunction and in continuation with the judgment in MACA No.1716/2014. With the above observation, this review petition is disposed of. The parties shall bear their respective costs. Sd/- **C.S.DIAS, JUDGE** rkc/05.01.2022 8 RP NO. 516 OF 2021 ## **APPENDIX OF RP 516/2021** PETITIONER'S ANNEXURES Annexure A1 THE RETURNED APPLICATION SUBMITTED BY THE REVIEW PETITIONER BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE IN OPMV 325/2012.