Divya Sajikumar and Others v. Kuldeep Mistri and Ashly K. Varghese and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945 MACA NO. 3687 OF 2019** **AGAINST THE AWARD DATED 30.03.2019 IN OP(MV) 1008/2015 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANTS/PETITIONER:** 1 DIVYA SAJIKUMAR, AGED 32 YEARS W/O.LATE SAJIKUMAR, ARAKKAL HOUSE, KEEZHILAM P.O., PARAMBIPEEDIKA. 2 SARANYA A.S., AGED 11 YEARS D/O.LATE SAJIKUMAR, REPRESENTED BY HER MOTHER DIVYA SAJIKUMAR, W/O.LATE SAJIKUMAR, ARAKKAL HOUSE, KEEZHILLAM P.O., PARAMBIPEEDIKA. 3 SIVASANKARAN NAIR A.K., AGED 67 YEARS, F/O.LATE SAJIKUMAR, ARAKKAL HOUSE, KEEZHILLAM P.O., PARAMBIPEEDIKA. 4 SANTHAKUMARI, AGED 62 YEARS M/O.LATE SAJIKUMAR, ARAKKAL HOUSE, KEEZHILLAM P.O., PARAMBIPEEDIKA. BY ADVS. C.PAULOSE SRI.V.GANGADHARAN ## **RESPONDENTS:** 1 KULDEEP MISTRI, S/O.OLESAR MISTRI, SARANGBAGBLATH P.O., LANSARBARVADI, JARGHARD, PIN 712258. 2 ASHLY K.VARGHESE, MANAGING PARTNER, M/S.ASHLY FURNISHING COMPANY, KUNNAPILLIL BUILDING, NORTH MARADY, MUVATTUPUZHA, PIN 686661 3 ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, 1ST FLOOR, JYOTHI SUPER BAZAR, THODUPUZHA - 685 584. ## **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** **==> picture [7 x 9] intentionally omitted <==** BY ADVS. SRI.JOHN JOSEPH(ROY) SRI.A.R.GEORGE SRI.R.S.MAHESH KRISHNA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2023, ALONG WITH MACA.73/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 ## **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945 MACA NO. 73 OF 2020 AGAINST THE AWARD DATED 30.03.2019 IN OP(MV) 1008/2015 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR** ## **APPELLANT/2ND RESPONDENT:** ASHLY.K.VARGHESE AGED 47 YEARS S/O. VARGHESE, MANAGING PARTNER, M/S. ASHLY FURNISHING COMPANY, KUNNAPPILLIL BUILDINGS, NORTH MARADY, MUVATTUPUZHA P.O. MUVATTUPUZHA 686 661. BY ADV JOHN JOSEPH(ROY) ## **RESPONDENTS/RESPONDENTS:** 1 KULDEEP MISTRI AGED 22 YEARS S/O. OLESAR MISTRI, SARANGBAGHLATH P.O. LANSARBARVADI, JHARGHAND 835 222. 2 ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, 1ST FLOOR, JYOTHI SUPER BAZAR, THODUPUZHA, IDUKKI DISTRICT - 685 584, REP. BY ITS MANGER, (INSURER OF OFFENDING VEHICLE NO. KL-17/J-6584). 3 DIVYA SAJIKUMAR, AGED 37 YEARS W/O. LATE SAJIKUMAR , ARACKAL HOUSE, KEEZHILLAM P.O., PARAMBIPEEDIAKA 683 541. 4 SARANYA A.S., AGED 16 YEARS, D/O. LATE SAJIKUMAR, MINOR REPRESENTED BY HER MOTHER DIVYA SAJIKUMAR, ARACKAL HOUSE, KEEZHILLAM P.O. PARAMBIPEEDIAKA 683 541. ## **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 4 5 SIVASANKARAN NAIR A.K., AGED 72 YEARS, F/O. LATE SAJIKUMAR, ARACKAL HOUSE, KEEZHILLAM P.O. PARAMBIPEEDIAKA 683 541. 6 SANTHAKUMARI, AGED 67 YEARS M/O. LATE. SAJIKUMAR, ARACKAL HOUSE, KEEZHILLAM P.O. PARAMBIPEEDIAKA 683 541. BY ADV ADV.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2023, ALONG WITH MACA.3687/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** ## 5 **JUDGMENT** ## **[MACA Nos.3687/2019, 73/2020]** These appeals arise from O.P.(M.V.) No.1008/2015 on the files of the Motor Accident Claims Tribunal, Perumbavoor. M.A.C.A. No.3687/2019 is filed by the claimants in the claim petition, whereas M.A.C.A. No.73/2020 is filed by the 2[nd] respondent/registered owner of the vehicle involved in the said claim petition. (For convenience, the parties are hereinafter referred to in this judgment based on their respective rankings in the claim petition.) 2. The facts which led to the filing of these appeals are as follows: The petitioners 1 to 4 have filed the claim petition seeking compensation for the death of one Sajikumar due to the injuries sustained in a motor accident that occurred on 11.09.2014. The accident occurred when a Mahindra autorickshaw bearing Registration No.KL 17 J 6584, driven by the 1[st] respondent, hit him while he was standing on the side of the road. Consequent to **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 6 the accident, he sustained severe injuries and was taken to Sanjoe Hospital, Perumbavoor, but he succumbed to the injuries on the way to the hospital. The said vehicle was owned by the 2[nd] respondent and was insured with the 3[rd] respondent Insurance Company. The claim petition was submitted in such circumstances. 3. The 1[st] respondent did not appear and was set ex parte. The 2[nd] respondent filed a written statement admitting the ownership of the vehicle. However, it was stated that the 1st respondent, the driver, was the brother of one of the employees in the company of the 2nd respondent, and he had stolen the key of the vehicle from the security room, driven the said vehicle, and caused the accident. According to him, there was no employeremployee relationship between respondents 1 and 2, and he never permitted the 1[st] respondent to drive the said vehicle. Therefore, it was contended that as the 1st respondent drove the vehicle without the consent of the 2[nd] respondent, he cannot be **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 7 mulcted with the liability to pay compensation. He also disputed the quantum of compensation. 4. The 3[rd] respondent filed a written statement admitting the coverage of policy in respect of the vehicle. However, they denied the liability mainly because the 1[st] respondent was a minor and was not competent to obtain a driving license. It was also pointed out that the Police laid charge sheet against the 1st respondent under Section 3(1), read with Section 181 of the Motor Vehicle Act, for driving the vehicle without a valid driving license. Therefore, they sought exoneration from the liability. They also disputed the quantum of compensation. 5. The evidence in this case consists of Exts.A1 to A8 from the side of the claimants. From the side of the respondents, RWs 1 to 3 were examined, and Exts.B1 to B5 were marked. After the trial, the Tribunal came to the finding that the accident occurred due to the negligence on the part of the driver of the autorickshaw, the 1[st] respondent. Even though the 3[rd] respondent, being the insurer of the said vehicle, was found liable ## **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 8 to pay compensation at the first instance, they were permitted to recover the said compensation from the respondents 1 and 2 after satisfying the award, as it was found that the 1[st] respondent drove the vehicle without any valid driving license. The quantum of compensation was fixed as Rs.13,57,250/- and the 3[rd] respondent was directed to deposit the said amount along with interest @ 8% per annum from the date of petition till realisation, subject to the right of recovery granted to them. 6. The registered owner of the vehicle has filed M.A.C.A. No.73/2020 challenging the right of recovery granted to the insurer by the Tribunal, whereas the claimants in the original petition filed M.A.C.A. No.3687/2019 seeking enhancement of compensation. 7. Heard Sri.C. Poulose, learned counsel appearing for the petitioners, Sri.John Joseph (Roy) learned counsel appearing for the 2[nd] respondent/registered owner of the said vehicle and Sri.A.R. George, learned counsel appearing for the 3[rd] respondent Insurance Company. **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 9 8. At first, the contention raised by the 2[nd] respondent as to the right of recovery is to be adjudicated. The 2[nd] respondent contends that the accident occurred when the 1st respondent had taken the vehicle from the company owned by the 2nd respondent without his knowledge and consent, and therefore, he cannot be held liable to pay the compensation. The documents he relies on to substantiate the contention are Exts.B1 to B5. Ext.B1 is the certified copy of the judgment in C.C. No.40/2015, in which the 1[st] respondent pleaded guilty to the offence registered in connection with the accident. Ext.B2 is the certified copy of the charge sheet filed against 1[st] respondent. Ext.B3 is the certified copy of the deposition of CW11 in the charge sheet before the criminal court. Ext.B4 is the copy of the complaint that the 2nd respondent claimed to have submitted before the Police on 12.09.2014, alleging that the 1[st] respondent had stolen the vehicle from the company. Ext.B5 is the copy of the complaint submitted by the 2[nd] respondent before the Superintendent of Police, Ernakulam Rural, Aluva, requesting to register a theft case against R1, on ## **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 10 05.04.2016. He also relies on the evidence of RWs 1 to 3 to substantiate his contentions. The Tribunal has considered the aforesaid evidence elaborately and arrived at the conclusion that the case put forward by the 2nd respondent is not at all believable, and the same was rejected by holding him to pay the compensation to the insurance company once they satisfy the award. 9. I have carefully gone through the records and considered the rival contentions raised by the parties in this regard. However, I do not find any convincing case from the contentions put forward by the learned counsel for the 2[nd] respondent. This is particularly because, the case of the 2nd respondent is mainly based on Ext.B4 complaint claimed to have been submitted by him before the police on 12.09.2014 wherein he had stated that the 1[st] respondent had taken the vehicle from his company, without his knowledge. The crucial aspect to be noticed is that the accident in this case occurred on 11.09.2014, and the complaint was submitted on 12.09.2014, the next day. ## **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 11 Even though it was claimed to be submitted on 12.09.2014, there is absolutely no evidence to show that such a complaint was submitted before the police. No receipt evidencing the submission of the same was produced before the Court. Moreover, when RW3, the investigating officer of the crime registered in connection with the incident, was examined, he stated that he was not aware of the submission of any complaint. 10. Another crucial aspect to be noticed is that, even though such a complaint was claimed to have been submitted, no further steps have been taken by him to get a crime registered against the 1[st] respondent for committing the theft of the vehicle. Of course, Ext.B5 complaint was submitted by him on 05.04.2016, which was after more than one and half years of the incident. The relevance of the said date is that, the said complaint was submitted after he received the notice of the original petition from the Tribunal. Thus, it could also be an afterthought to get rid of the liability. ## **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 12 11. It is to be noted in this regard is that, Ext.B5 complaint was submitted before the Superintendent of Police, stating that the police station concerned had not taken any action, even though a statement (not complaint) was furnished by him before the police stating that the 1[st] respondent had stolen the vehicle from his possession. However, in that complaint also, there is no specific reference to the Ext.B4 complaint he claimed to have submitted on 12.09.2014. 12. Another aspect to be noticed in this regard, in Ext.B4 and B5 complaints, it was stated that the said vehicle was kept in his company by his driver, Reji John, and the key of the same was kept in the security room of the company. It was also mentioned that, the 1[st] respondent, the brother of one of the employees of the 2nd respondent, had stolen the said key and thereafter started the vehicle, drove it and ultimately resulted in the accident. The, 2[nd] respondent was examined as RW1 before the Tribunal and the case he advanced was that the 1st respondent broke open the gate of said company, and the vehicle was taken. However, in **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 13 Ext. B4 and B5 complaints, there is no averment with respect to the breaking open of the gate of the company, but instead, the allegation is to the effect that the 1[st] respondent had stolen the key kept in the security room and drove the said vehicle. The learned counsel also relied on the statement given before the police under Section 161 of Cr. P.C, by the 2[nd] respondent and in the said statement also, he stated about the incident in which the 1[st] respondent had taken the key and used the said vehicle without his knowledge. Conspicuously, there also, the breaking open of the gate of the company was not mentioned. Thus, it is evident that Ext.B4, one of the basic documents the 2nd respondent relies on to establish his case, is not at all believable as there is absolutely nothing on record to show that such a complaint was submitted before the authorities. As far as Ext.B5 is concerned, the same was submitted on 05.04.2016, after one and half years, that too after receiving the notice in the original petition submitted before the Tribunal. More importantly, even thereafter, no steps have been taken by the 2[nd] respondent to get ## **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 14 a crime registered against the 1[st] respondent for committing theft of the said vehicle and using the same without his knowledge. When all the aforesaid aspects are taken into consideration, the case advanced by the 2[nd] respondent based on the aforesaid evidence appears to be not convincing at all. Therefore, I do not find any justifiable ground to interfere with the finding of the Tribunal in this regard. 13. The next question to be considered relates to the quantum of compensation. The incident in this case occurred on 11.09.2014, and the deceased was aged 42 years. According to the claimants, he was conducting a provisional store, and the monthly income claimed was Rs.20,000/-. To substantiate the said monthly income, Ext.A8 rent agreement was relied on which would indicate that the deceased was conducting a provisional store on a rented premises. The Tribunal took the monthly income as Rs.7,500/- and calculated the compensation. 14. After considering the relevant materials, I find that some modification is required as far as the quantum of **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 15 compensation is concerned. The monthly income of Rs.7,500/appears to be on the lower side. Of course, it is true that even though Ext.A8 would indicate that the deceased was conducting a provisional store, there is absolutely nothing to establish the income which he derived from his business. When the method of computation evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236] and **Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd.** [2014 (2) SCC 735] is taken into consideration, it can be seen that in respect of an ordinary employee even in the absence of evidence, the monthly income can be fixed as Rs.4,500/- for the year 2004. The usual method for determining the monthly income for the subsequent years is to add Rs 500/each year. When the said method is adopted, the monthly income of an ordinary employee for the year 2014 can be taken as Rs 9,500/-. Here in this case, even though there is no evidence as to the monthly income, as observed above, Ext.A8 would show that, ## **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 16 he was conducting a business of his own and therefore, a higher monthly income than received by an ordinary employee can be taken. In the facts and circumstances of the case, I deem it appropriate to fix the same as Rs.11,000/- . Since the deceased was aged 42 years at the time of the accident, an addition of 25% has to be made towards future prospects, and the multiplier applicable is '14'. While reassessing the compensation with the above criteria, the amount to be awarded under the head of loss of dependency would come to Rs.17,32,500/[11000+25%x12x14x3/4]. The Tribunal has already granted an amount of Rs.11,81,250/-; thus, the balance amount would come to Rs.5,51,250/-. 15. When moving on to the other heads, it can be seen that the Tribunal has awarded the compensation for funeral expenses and loss of estate in tune with the principles laid down in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] and therefore, no modification in that regard is required. However, it is evident from the award that the Tribunal **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 17 awarded compensation of Rs. 80,000/- only toward loss of consortium to the appellants, whereas the appellants, being the wife, child and parents of the deceased, were entitled to compensation under this head at the rate of Rs.40,000/- each for all the appellants, thereby making it to Rs.1,60,000/-. However, a further sum of Rs.50,000/- was granted by the Tribunal towards the loss of love and affection. It is a well settled position of law in the light of the **New India Assurance Company Ltd. v. Somwati & Ors.** [(2020) 9 SCC 644] and **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780] that, when compensation is awarded for loss of consortium, no separate compensation needs to be granted for loss of love and affection. Therefore, Rs.50,000/- awarded towards love and affection is adjusted to the amount of Rs.1,60,000/- fixed by this Court towards loss of consortium, thereby making the additional compensation under the said head Rs.30,000/-. Thus the total additional compensation receivable by the appellant is fixed as Rs.5,81,250/- [551250+30000]. **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 18 In the light of the aforesaid observations and findings, M.A.C.A No.73/2020 submitted by the 2[nd] respondent in the claim petition is hereby dismissed, confirming the right of recovery granted to the 3[rd] respondent/insurance company. M.A.C.A No. 3687/2019, submitted by the petitioners in the claim petition, is allowed by modifying the award dated 30.03.2019 in O.P.(M.V) No. 1008/2015 passed by the Motor Accidents Claims Tribunal, Perumbavoor, by awarding an additional compensation of Rs 5,81,250/- (Rupees five lakhs fifty one thousand two hundred and fifty only) and the 3[rd] respondent insurance company shall deposit the same along with interest at the rate as ordered by the Tribunal from the date of petition till realisation. It is further clarified that, since the right of recovery granted to the 3[rd] respondent is upheld by this Court, the 3rd respondent shall be allowed to recover the additional compensation from the 1[st] and 2[nd] respondent after it is satisfied. Sd/- **ZIYAD RAHMAN A.A. JUDGE** scs/rpk ## **MACA NO. 3687 OF 2019 & MACA NO. 73 OF 2020** 19 ## **APPENDIX OF MACA 3687/2019** PETITIONER ANNEXURES Annexure A TRUE COPY OF THE TRACK CONSIGNMENT SHEET DATED 12-72022