Ayyappan and others v. T. Narayan and others

1 M.A.C.A.No.766 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943** ## **MACA NO. 766 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 490/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** |**APPELLANT/S:**|| |---|---| |**1**|**AYYAPPAN**| |**2**|**LEELA**| |**3**|**MANJULA**| |**4**|**MANIKANDAN (ALL APPELLANTS RESIDING AT PANANGAVALAPPIL HOUSE, THARAKKAL,**| ||**EDAPPAL, MALAPPURAM DISTRICT.**| ||**BY ADV SRI.T.C.SURESH MENON**| |**RESPONDENT/S:**|| |**1**|**T.NARAYAN ,S/O.KUMARAN, THALAKKATT,HOUSE, EDAPPAL P.O., MALAPPURAM DISTRICT.679**| ||**576**| |**2**|**THE NEW INDIA INSURANCE CO.LTD..BRANCH, K.H.BUILDINGS, THAZHEPALAM, TIRUR.676**| ||**101**| |**3**|**HAMSA, S/O.SIDHIQUE, KOTTENTAKATH.**| ||**HOUSE, VELYAMKODE P.O., MALAPPURAM DISTRICT.679 579**| |**4**|**THE NEW INDIA INSURANCE CO.LTD.**| ||**BRANCH, K.H.BUILDINGS, THAZHEPALAM,, TIRUR.676 101**| |**5**|**SHAJIMON, S/O.JANAKI AMMA, PALAKKOTTIL**| ||**HOUSE, THALAKKASSERY, PALAKKAD DISTRICT.679 508**| |**6**|**THE ORIENTAL INSURANCE CO.LTD.**| ||**PRANAVAM BUILDING, MELE PATTAMBI,, PATTAMBI.679 306**| |**7**|**ABDUL BASHEER, S/O.ABDULLA,PARAPARAMBIL HOUSE, ANAKKARA P.O. 679 551 (7TH**| ||**RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 11.1.2022 IN IA**| ||**1/2021)**| ||**BY ADVS.**| ||**SRI.VPK.PANICKER -R6**| ||**SMT.T.C.SOWMIAVATHY-R2, R4**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.01.2022, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A.No.766 of 2011 ## **C.S.DIAS, J.** ---------------------------------------- ## **M.A.C.A.No.766 of 2011** ## **----------------------------------------** ## **Dated this the 11[th] day of January, 2022.** ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.490/2007 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents 1 to 6 in the appeal were the respondents before the Tribunal. The seventh respondent is deleted from the party array as per the order dated 11.1.2022 in IA No.1/2021. 2. The appellants had filed the claim petition under Sec.163A of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Mahesh (deceased), the son of the appellants 1 and 2 and brother of the appellants 3 and 4. It was their case that, on 17.12.2006, while the deceased was riding a motor cycle bearing registration No.KL-10/N 9225 along with one Vijith 3 ## M.A.C.A.No.766 of 2011 and Dileep as pillion riders, along the Edappal-Ponnani road, a bus bearing registration No.KL-10/M 541, hit an auto rickshaw bearing registration No.KL-9/D 5920 and in the impact the vehicles hit the motorcycle of the deceased. Although the deceased was taken to Edappal Hospital, he succumbed to his injuries. The first respondent was the owner and second respondent was the insurer of the bus; that the third respondent was the owner and the fourth respondent was the insurer of the motor cycle and that the fifth respondent was the owner, the sixth respondent was the insurer and the seventh respondent was the insured of the auto rickshaw. The appellants had claimed that the deceased was aged 23 years and a Mason by profession and was earning an annual income of Rs.40,000/-. Hence, the appellants claimed a compensation of Rs.4,89,500/from the respondents. 3. The legal representatives of the deceased Vijith and the other pillion rider named, Dileep had filed OP(MV) 4 ## M.A.C.A.No.766 of 2011 Nos 328 and 330 of 2007, respectively, before the same Tribunal, seeking compensation from the respondents. 4. The respondents 2 and 4 had filed separate written statements denying the assertions in the claim petitions. It was their defence that, the accident occurred due to the negligence of the deceased rider. Hence, the respondents 2 and 3 prayed that they may be exonerated of their liability. 5. The respondents five and six had filed separate written statements in the claim petitions reiterating the very same allegations as that of the respondents 2 and 4. They also contended that the accident occurred due to the negligence of the deceased. 6. The Tribunal consolidated and jointly tried the three claim petitions. 7. The petitioners in the claim petitions examined PWs 1 and 2 and marked Exts A1 to A19 in evidence. The 5 ## M.A.C.A.No.766 of 2011 respondents produced and marked Exts B1 and B2 in evidence. 8. The Tribunal, after analysing the pleadings and materials on record, dismissed the captioned claim petition holding that that the accident occurred due to the negligence of the deceased rider. 9. Aggrieved by the dismissal of the claim petition, the petitioners are in the appeal. 10. Heard Sri.T.C Suresh Menon, the learned counsel appearing for the appellants/petitioners, Sri.V.P.K Panicker, the learned counsel appearing for the sixth respondent and Smt.T.C Sowmiavathy, the learned counsel appearing for the respondents 2 and 4. 11. The questions that arise for consideration in the appeal are: (i) whether the dismissal of the claim petition is sustainable in law, and (ii) whether the petitioners are entitled for compensation under Sec.163A of the Motor 6 M.A.C.A.No.766 of 2011 Vehicles Act, 1988. ## **Question No.(i)** 12. The specific case of the appellants in the claim petition was that while the deceased was riding the motor cycle, due to the collision between the motor cycle, bus and auto rickshaw, the deceased sustained fatal injuries and lost his life. 13. The Tribunal, on the basis of the materials on record, arrived at the conclusion that the accident occurred due to the negligence of the deceased rider. Accordingly, the claim petition was dismissed. 14. In **United India Insurance Co.Ltd v. Sunil Kumar – [2017 (4) KLT 1093(SC)** ], the Hon'ble Supreme Court has categorically held that in a claim petition filed under Sec.163A of the Act, the question of negligence cannot be looked into. Therefore, what needs to be looked into in a claim petition filed under Sec.163A is only the averments in the claim petition and the materials 7 M.A.C.A.No.766 of 2011 on record. 15. As the case of the appellants was that the accident occurred due to the negligence of the drivers of the three vehicles and the respondents 2, 4 and 6, being the insurers of the bus, motor cycle and auto rickshaw, respectively, it is the above insurers who are to indemnify the liabilities of the owners of the respective vehicles, and pay the compensation amount to the appellants. The Tribunal could not have gone into the question of negligence and attributed the same on the deceased rider in view of the law laid down in **Sunil Kumar** (supra). Hence, I set aside the finding of the Tribunal, that the deceased rider of the motor cycle was negligent and, I hold that the appellants are entitled to compensation. In the light of the law laid down by the Hon'ble Supreme Court in **Khenyei vs New India Assurance Co. Ltd [(2015) 9 SCC 273]** and as the insurers of all the three vehicles are on the party array, and they have admitted 8 ## M.A.C.A.No.766 of 2011 that the three vehicles had valid insurance policies, I hold that the respondents 2,4 and 6 are jointly and severally liable to pay the compensation amount to the appellants in equal shares. Hence, I answer question No.(i) in favour of the appellants. ## **Question No.(ii)** 16. The appellants had averred that the deceased was a Mason by profession and earning an annual income of Rs.40,000/-. 17. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 18. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2006, I have no hesitation to fix the notional annual income of the deceased at Rs.40,000/- as claimed in the 9 M.A.C.A.No.766 of 2011 claim petition. 19. It is on record that the deceased was aged 23 years at the time of the accident. 20. As per the Second Schedule to the Motor Vehicles Act, 1988, prior to the 2018 amendment, the total compensation payable to the dependents of the deceased in the age group of 20 to 25 years with an annual income of Rs.40,000/- is Rs.7,20,000/-. Out of the said amount, onethird of the compensation has to be deducted towards the personal living expenses of the deceased. Therefore, a consolidated compensation of Rs.4,80,000/- has to be paid to the appellants, as per the structured formula in the Second Schedule of the Act. Likewise, an amount of Rs.2,000/- has to be paid towards funeral expenses and Rs.2,500/- has to be paid towards loss of estate. Thus, the appellants are entitled to a total amount of Rs.4,84,500/as per the Second Schedule of the Act. 21. In the above legal and factual matrix, I hold that 10 M.A.C.A.No.766 of 2011 the appellants/petitioners are entitled to a compensation of **Rs.4,84,500/-** with interest at the rate of 7% per annum on the said amount from the date of claim petition till the date of realization with proportionate cost. Hence, I direct the respondents 2, 4 and 6 to deposit the compensation amount with interest and proportionate cost before the Tribunal, following the principles in **Khenyei** (supra), within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the same to the appellants in the ratio of 30:30:20:20 and in accordance with law. Sd/- sks/10.1.2022. **C.S.DIAS, JUDGE**