Ashly V. Thomas @ Mrs. Ashly Sunil vs Aneesh A.G. @ Aneesh; The United India Insurance Company Limited; Sherin K. Cherian

MACA No.3045 of 2015 1 ## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 1[ST] DAY OF JULY 2021 / 10TH ASHADHA, 1943 ## MACA NO. 3045 OF 2015 AGAINST THE JUDGMENT IN OP(MV) No. 654/2013 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-1 , KOTTAYAM ## APPELLANTS/PETITIONERS: 1 ASHLY V.THOMAS @ MRS. ASHLY SUNIL W/O.LATE SUNIL K.GEORGE @ SUNIL, AGED 37 YEARS. 2 AMAL GEO SUNIL (MINOR) S/O.LATE SUNIL K.GEORGE @ SUNIL, AGED 13 YEARS. 3 EMEY ANNA SUNIL MINOR D/O.LATE SUNIL K.GEORGE @ SUNIL, AGED 9 YEARS. 4 ULAHANNAN GEORGE S/O.ULAHANNAN AGED 65 YEARS. 5 MRS. ANNAMMA GEORGE W/O.GEORGE AGED 64 YEARS. (MINOR APPELLANTS 2 AND 3 REPRESENTED HEREIN BY THEIR GUARDIAN MOTHER THE 1ST APPELLANT), ALL ARE RESIDING AT KANNANTHURUTHIL HOUSE, PARIYARAM P.O, KOTTAYAM DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU ## RESPONDENTS/RESPONDENTS: 1 ANEESH A.G. @ ANEESH S/O.GEORGE, RESIDING AT ATTACHIRA HOUSE, KADAMURI BHAGOM, PARIYARAM P.O, KOTTAYAM - 686 021. - 2 THE UNITED INDIA INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, GEETHA TRADE CENTRE, MACA No.3045 of 2015 2 NAGAMPADOM,KOTTAYAM - 686 001. 3 SHERIN K. CHERIAN RESIDING AT KOLAMKODU HOUSE, ERAVINALLOOR P.O.,KOTTAYAM - 686 011. FOR R2 BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.3045 of 2015 3 ## JUDGMENT This is an appeal submitted by the claimants in OP(MV)No.654 of 2013, on the file of the Additional Motor Accidents Claims Tribunal-I, Kottayam. The claim petition was filed by them for compensation for the death of one Sunil in a motor accident occurred on 29.8.2012. The deceased is the husband of the 1[st] appellant, father of appellants 2 and 3, and the son of respondents 4 and 5. According to the appellants, the accident occurred when the scooter ridden by the deceased along with a pillion rider, was hit by another scooter coming from the opposite side. It was contended that, the accident occurred due to the negligence of the rider of the other scooter which was owned by the 1[st] respondent and insured with the 2[nd] respondent. The 3[rd] respondent was impleaded as according to the claimants, the vehicle stood registered in his name at the time of the accident. The claim petition was filed in the above circumstances. 2. The 1[st] respondent had chosen not to contest the matter. The 2[nd] respondent Insurance Company filed a written statement admitting the coverage of policy, but raised a contention that the rider/1[st] respondent was not MACA No.3045 of 2015 4 having a valid license at the time of the accident. On that ground they sought for exoneration from the liability. The 3[rd] respondent filed a written statement contending that as on the date of accident, he was not the owner. According to him, he sold the vehicle to the 1[st] respondent on 19.07.2012 and the accident occurred on 29.8.2012. He contends that he cannot be mulcted with any liability. 3. The evidence in this case consists of Exts.A1 to A13 from the side of the appellants/petitioners and from the side of respondents Exts.B1 and B2 were marked. 4. After the trial, the Tribunal came to a finding that the accident occurred due to the rash and negligent driving of the 1[st] respondent. With regard to the liability of the 3[rd] respondent, the Tribunal came to the finding that as the vehicle stood transferred prior to the date of accident, he is not liable to pay any compensation and hence he was exonerated from the liability. Similarly, the 2[nd] respondent Insurance Company was also exonerated from the liability on the ground that, the 1[st] respondent was riding the scooter without any valid driving license. The quantum of compensation was fixed as Rs.14,77,000/- and the 1[st] respondent was directed to deposit the said amount MACA No.3045 of 2015 5 along with interest at the rate of 9% per annum. 5. Being aggrieved by the said award, this appeal is filed by appellants/claimants. Heard the learned counsel for appellants and the learned counsel for the 2[nd] respondent. 6. Learned Counsel for the appellants attacks the findings of the Tribunal in exonerating the Insurance Company and also on the question of the quantum of compensation. Regarding the exoneration of the 2[nd] respondent, he contents that, existence of valid policy is admitted by the 2[nd] respondent Insurance Company and their contention was confined to lack of driving license for the 1[st] respondent/rider. In such circumstances, the Insurance Company could not have been exonerated, and instead, they should have been directed to deposit the amount awarded, with a right to recover the same from the insured. Regarding the quantum, the main contention put forward by the learned counsel for the appellants is that, the monthly income of the deceased taken by the Tribunal is on lower side. 7. It is true that, there is no dispute as to the existence of policy for the scooter and also as to its MACA No.3045 of 2015 6 coverage for the claim. The only contention of the 2[nd] respondent is that, there were violation of policy conditions, as the 1[st] respondent was riding the vehicle at the relevant time without a valid driving license. The Tribunal found that there was no valid driving license for the 1[st] respondent. In such circumstances, instead of exonerating the 2[nd] respondent from the liability, the proper course that should have been adopted by the Tribunal was to direct the Insurance Company to satisfy the award first and to recover the amount from the 1[st] respondent. Position of law in this regard is settled and violation of policy conditions would not enable the insurer to get rid of the primary liability to pay the compensation against a third party claim. In this case, the claim was made by a third party as far as the 2[nd] respondent is concerned. Hence the finding of the Tribunal in this regard is not sustainable. In such circumstances, this court is of the view that, the award is liable to be modified with a direction to the 2[nd] respondent to satisfy the award initially and to get the said amount recovered from the 1[st] respondent. 8. At this juncture, the learned counsel for the Insurance Company points out that, as per the award, the MACA No.3045 of 2015 7 3[rd] respondent was exonerated from liability on the ground that as on the date of the accident, the vehicle stood transferred in favour of the 1[st] respondent and the said finding is not sustainable. According to him, even though, the registration of the vehicle was transferred in favour of the 1[st] respondent, the Insurance policy was not transferred in the name of the 1[st] respondent within the time stipulated in the policy as well as under Section 157(2) of the Motor Vehicles Act. Section 157(2) of the Motor Vehicles Act clearly casts an obligation on the transferee of the vehicle to intimate the Insurance Company regarding such transfer within 14 days. In this case, no such application has been submitted by none of the parties and therefore the Insurance Company cannot be held responsible for the same. 9. Section 157 of the Motor Vehicles Act reads as follows: “ _157. Transfer of certificate of insurance.- (1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the_ MACA No.3045 of 2015 8 _motor vehicle is transferred with effect from the date of its transfer._ _[Explanation.- For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance]_ _(2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance.”_ 10. As per Section 157(1) of the Motor Vehicles Act, when a person transfers his vehicle to another, even in the absence of any further proceedings, the insurance policy is deemed to have been transferred in favour of the transferee. This court is of the view that the deemed transfer as contemplated under Section 157 (1) is unconditional and not subjected to any other provision. It is true that, Sub-section (2) of Section 157 of the Act contemplates for an application for transfer of the policy, but nowhere in the said provision it is mentioned that in the absence of such application, the deemed transfer contemplated under sub-section (1) of Section 157 would be vitiated. The stipulation contained in sub-section (2) of Section 157 is only directory in MACA No.3045 of 2015 9 nature and the operation of sub-section (1) of Section 157 cannot be regulated by the said provision. This question was considered by a Division Bench of Orissa High Court in Oriental Insurance Co. Ltd. v. Dinabandhu Pradhan (AIR 1994 Ori.177). Paragraph 10 of the said judgment is extracted hereunder: _“It is clear that the purpose of enacting sub-section (2) of Section 157 is to make the insurer aware of the transfer so that it can make changes in its records, and necessary changes can be made in the certificate of insurance and policy. It cannot be said that in the absence of application, the effect of the deemed transfer in terms of S.157(1) is wiped out. It is seen that fourteen days’ time has been granted for applying to the insurer. In a given case, an accident may occur between the date of transfer and the last date for making the application. In that case, insurer’s liability to indemnify the transferee exists, even though in the records of the insurer, transferor is the insured. In another case, for reasons beyond the control of the parties, intimation may be given after the prescribed period. According to us, that does not clothe the insurer with the power of refusal to take notice of the transfer, keeping in view the indicated object of making necessary changes by the insurer. This construction would effectuate the purpose and intendment of the statute, and at the same time would not nullify the other provision.”_ 11. This Court is fully in agreement with the view taken in the said judgment. Under no circumstances, non compliance of Section 157(2) can be treated as something which makes the deemed transfer under Section 157(1) invalid. Even in the absence of actual transfer of policy, the same shall stand transferred in the name of transferee MACA No.3045 of 2015 10 and the Insurance Company shall continue to be liable to all the liabilities in respect of third party claims. Therefore, the contention of the learned counsel for the 2[nd] respondent is to be rejected. 12. When coming to the quantum of compensation, following aspects are revealed from the perusal of records; The deceased was working as supervisor in M/s Asha Timbers, Ettumanoor and was earning an amount of Rs.10,000/- per month. He produced Ext.A10 Employment and Salary Certificate to substantiate the same. However, the Tribunal has not taken the same in to consideration, as the employer who issued the certificate was not examined. As there was no other evidence available, the Tribunal fixed the monthly income of the appellant as Rs.6,000/-. Since the deceased was aged 39, an addition of 50% of the monthly was made towards future prospects. Taking into account the number of dependents 1/4th of the income was deducted as personal expenses and 15 was taken as multiplier. 13. Considering the date of accident, the monthly income taken by the Tribunal is on lower side. By applying the principles laid down by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance MACA No.3045 of 2015 11 Insurance Company Limited [(2011)13 SCC 236] and Syed Sadiq v. Divisional Manager, United Indian Insurance Company Limited [(2014)2 SCC 735], the monthly income in cases where there is no proof of actual income, the same can be fixed as Rs.4,500/- in the year 2004. Based on the principles in the said judgments, this court is consistently fixing the base monthly income as Rs 4500/in respect of the accidents in the year 2004 and adding Rs 500/- each per year, for the accidents occurred during subsequent years. While applying the said principles in this case, the monthly income of the deceased can be reasonably fixed as Rs.8,500/-as the accident in this case occurred on 29.8.2012. Since the deceased was aged 39 years, proper addition to be made towards future prospects is 40% instead of 50% and the deduction to be made towards personal expenses is 1/4th. While computing the compensation for loss dependency, by applying the above criteria, it would come to Rs.16,06,500/- [Rs. (8500+3400)x12x15x3/4], instead of Rs.12,15,000/- awarded by the Tribunal under this head. When going to the other heads of compensation, it can be seen that, the amount awarded under the heads of funeral expenses and loss of estate are in excess by Rs.10,000/- each (Rs 25,000/- each is awarded) and the said amounts are to be re-worked by MACA No.3045 of 2015 12 fixing it as Rs 15,000/- each. It is also noticed that, the Tribunal awarded an amount of Rs.1,00,000/- to the 1[st] appellant towards loss of consortium and a further amount of Rs.75,000/- to the 2[nd] and 3[rd] appellants towards loss of love and affection. Similarly, a further sum of Rs.25,000/- is seen granted to the 4[th] and 5[th] appellants under the head of love and affection as well. As per principles laid down by the Hon’ble Supreme Court in ## National Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT 662], the compensation payable under the loss of consortium to the wife is Rs.40,000/-. So, Rs 1,00,000/- awarded under the head of loss of consortium to the 1[st] appellant is excessive and it is to be revised as Rs.40,000/-. It is also held by the Hon’ble Supreme Court in New India Assurance Company Limited v. Somwati and Others [(2020)9 SCC 644] and United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and Others (AIR 2020 SC 3076 that the children and parents of the deceased are entitled for loss of parental consortium and filial consortium respectively. The amounts payable under these heads are Rs.40,000/- each. It is also held in Somwati's case (Supra) and Satinder Kaur @ Satwinder Kaur (supra) that, when compensation is awarded under the head of loss of consortium, separate compensation need not be MACA No.3045 of 2015 13 awarded under the head of loss of love and affection. In the light of the above, the amount awarded under the head of loss of consortium to the appellants have to be fixed as Rs.40,000/- each, thus making the total compensation under the head of loss consortium to all the appellants as Rs 2,00,000/- (40000 X 5). Since no separate amount is to be awarded under the head of loss of love and affection, the amounts awarded by the Tribunal under this head ie. Rs.75,000 and 25,000 are to be deleted. Amount awarded under the other heads are not interfered with. 14. In the above circumstances, the award passed in OP(MV) No. 654/2013 by the Additional Motor Accidents Claims Tribunal-I, Kottayam, is modified by re-fixing the quantum of compensation as Rs.18,48,300/- (Rupees Eighteen Lakhs Fortyeight thousand and three hundred only) (Rs.10000+15000+1800+1606500+200000+15000) instead of Rs.14,77,000/-. The 2[nd] respondent being the Insurer shall deposit the said amount along with interest and proportionate costs as ordered by the Tribunal within a period of three months from the date of receipt of copy of this judgment. It is made clear that, the 2[nd] respondent shall be at liberty to recover the said compensation from the 1[st] respondent, after such deposit, by executing the MACA No.3045 of 2015 14 award, before the Tribunal. The manner in which the amounts are to be deposited, and the disbursements thereof, shall be in the very same proportions as ordered by the Tribunal. _Sd/-_ ZIYAD RAHMAN A.A. JUDGE pkk