High Court of KeralaSingle Judge2018-10-03Appeal allowed; No costs; Insurer to pay within...

George and Philomina v C.A. Shihab and The New India Insurance Co. Ltd.

Case / Petition Number:MACA. No.1540 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2018-10-03
Court Decision / Holding: The appeal is allowed. No costs as awarded by this Court. The entire compensation would be the liability of the 1st respondent, subject to any orders in the appeal from the award dated 29.02.2016. The Insurance Company shall pay the amounts within two months from the date of receipt of a certified copy of this judgment with liberty to recover the same from the 3rd respondent, subject to an appeal as aforesaid. The interest shall be as directed by the Tribunal.
Final Disposition: Appeal allowed; No costs; Insurer to pay within two months; liability on the first respondent with liberty to recover from the third respondent; matters related to ex parte order partially addressed.

Parties to the Case

Appellants / Petitioners

George S/o Antony
Philomina W/o George

Respondents

C.A. Shihab
The New India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• SRI.P.V.BABY
• SRI.A.N.SANTHOSH

Counsels for Respondents

• SRI.P.M.MOHAMMED SHIRAZ
• SRI.P.JACOB MATHEW, SC
• DR.K.P.PRADEEP
• SRI.K.N.VIKRAMATHITHYAN PILLAI
• SRI.P.JAYASANKAR

Case Synopsis & Summary

George and Philomina, parents of an 18-year-old who died in a road accident involving a motorbike and a KSRTC bus, approach the Kerala High Court after an award by the Motor Accidents Claims Tribunal in OP(MV) No.975/2003 (dated 04-08-2011). The Tribunal initially found negligence on the bike driver and, on a later challenge by the bike owner, partly set aside the ex parte award to the extent of liability on the owner, retaining the finding of driver negligence. The insurance company contended that the bike rider was negligent; a discrepancy arose because the FIR named the KSRTC driver as accused, while the final police report named the bike driver, and the criminal charge could not proceed since it had been abated. The appellants challenge the Tribunal’s 30% negligence on the pillion rider, arguing that the pillion rider could not be deemed negligent merely for riding with an unlicensed driver. They also seek higher compensation, including future prospects (40%), and filial consortium for the parents, drawing on Magma and Pranay Sethi principles. The High Court relies on Pranay Sethi for future prospects and Magma for filial consortium, sets aside the pillion rider’s 30% liability, increases compensation, and ultimately allows the appeal, directing the insurer to pay within two months with liberty to recover from the insured, and denying costs.

Legal Doctrines & Maxims

Future prospects (40% addition) as per Pranay Sethi
Filial/ loss of consortium for parents as per Magma General Insurance Co. Ltd. v. Nanu Ram
No compensation for pain and suffering where there was no hospitalisation (as per Magma)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the Tribunal erred in saddling 30% negligence on the pillion rider merely because the rider was on a bike driven by a person who did not hold a license. They argue that there is no evidence the pillion rider knew of the driver’s lack of licence. They press for enhanced compensation under Pranay Sethi (40% future prospects) and apply the Magma principle to grant filial consortium to the parents, as well as higher funeral expenses; they challenge the ex parte order and seek merits-based adjudication on the merits of liability and quantum.

Contentions of Respondents

The respondents contend that the Tribunal rightly held negligence on the bike driver and that the ex parte award, though later partially set aside, did not absolve the fundamental finding of driver negligence. They rely on existing jurisprudence supporting the insurer’s position and argue that future prospects and filial consortium should be applied consistently with established law. They urge adherence to the Tribunal’s factual matrix and contend that any enhancement should reflect the evidence on record and statutory considerations; they seek to uphold the liability on the insured and ensure the insurer’s responsibility for payment within the stipulated period.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram & Others	CDJ 2018 (SC) 958	Positive	Used to justify filial consortium for parents and to limit pain and suffering in the absence of hospitalisation; supports awarding loss of consortium to parents per the Magma decision.
National Insurance Company Ltd. v. Pranay Sethi and Others	2017 (5) KHC 350	Positive	Applied for determining future prospects (40%) and applying the correct multiplier, following the Pranay Sethi framework.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940** **MACA. No.1540 of 2012** **AGAINST THE JUDGMENT IN OP(MV) NO.975/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 04-08-2011** ## **APPELLANTS:** |**1**|**GEORGE**| |---|---| ||**S/O.ANTONY, KANNACHAMURI HOUSE, PALLURUTHY P.O.,**| ||**PALLURUTHY VILLAGE,**| ||**KOCHI TALUK**| |**2**|**PHILOMINA**| ||**W/O.GEORGE,**| ||**-DO- -DO-**| ||**BY ADVS.**| ||**SRI.P.V.BABY**| ||**SRI.A.N.SANTHOSH**| ## **RESPONDENTS:** |**1**|**C.A. SHIHAB**| |---|---| ||**S/O.ABU, 21/10024,CHIRAYAMPARAMBIL, KUMBALANGI**| ||**VAZHI, PALLURUTHY P.O., COCHIN -6**| |**2**|**THE NEW INDIA INUSURANCE CO. LTD.**| ||**VALLAMATTAM ESTATE, RAVIPURAM, KOCHI-15.**| ||**BY ADVS.**| ||**SRI.P.M.MOHAMMED SHIRAZ**| ||**SRI.P.JACOB MATHEW, SC**| ||**DR.K.P.PRADEEP**| ||**SRI.K.N.VIKRAMATHITHYAN PILLAI**| ||**SRI.P.JAYASANKAR**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. No.1540 of 2012 2 ## **JUDGMENT** **Appellants are the claimants before the Tribunal. The appellants lost their 18 year old son in an accident, in which the motor bike he was riding pillion, hit a KSRTC bus. The claimants approached the Tribunal with only the owner of the motor bike and its insurer on the party array. The owner took up a contention that he had in fact rented out the bike to one another person called Muhsin. The said Muhsin had entrusted the bike to the person, who was driving the vehicle when the accident occurred. The driver of the vehicle also died in the accident. There was a claim filed by the parents of the driver of the vehicle also, with which this Court is not concerned.** **2. Before the Tribunal the Insurance Company also raised a contention that the driver of the bike was negligent. The Tribunal found negligence** MACA. No.1540 of 2012 3 **on the driver of the bike, especially since the charge was against the deceased driver of the bike. There is no charge against the KSRTC driver. This Court has examined the records and find the FIR having been registered showing the KSRTC driver as the accused. However, in the final report produced as Annexure A6, the driver of the bike is shown as the accused. Definitely, no criminal case could have been filed for reason of the charge itself having been abated.** **3. The 1[st] respondent, who is the owner of the bike, was** _**exparte**_ **before the Tribunal. Later, the 1[st] respondent approached the Tribunal and sought for setting aside the** _**exparte**_ **award. The** _**exparte**_ **award was set aside to the extent of the liability cast on the 1[st] respondent and the matter was considered afresh. On a fresh consideration, again the Tribunal reiterated negligence found on the driver of the bike.** MACA. No.1540 of 2012 4 **4. The learned Counsel appearing for the 1[st] respondent, before this Court, produced the award of the Tribunal after setting aside the** _**exparte**_ **order dated 29.12.2016. It is submitted that the Tribunal had specifically found that there was no further materials produced by the claimants to grant any enhancement of the amounts. Hence there should be an appeal filed from the later award, is the submission. However, I see from paragraph 19 of the order that it is specifically stated by the Tribunal: “Though** _**exparte**_ **order passed against R1 stands set aside the other part of the award remain as such. ...” (sic). Hence the only consideration made after setting aside the order of** _**exparte**_ **was as to whether the liability can be cast on the owner of the motor bike. In such circumstances, this Court does not find any reason to non-suit the claimants herein and find the appeal to be not maintainable.** MACA. No.1540 of 2012 5 ## **5. The appellant first challenges the order of** **the Tribunal finding 30% negligence on their deceased son. The finding of the Tribunal is that the driver and the pillion rider being friends; the pillion rider was negligent in so far as traveling in a bike driven by a person without licence. 30% negligence was found on the pillion rider. This Court does not see any reason to sustain the said order. There can be no negligence found on the mere ground that the pillion rider had willingly mounted a bike, which was driven by a person without licence. There is no possibility of the pillion rider knowing whether the driver has a licence or not. Hence the order imposing 30% liability on the deceased pillion rider is set aside. Negligence also has to be in the driving of the vehicle and not on such abstract aspects.** **6. The further claim is for enhancement of compensation. The Tribunal found monthly income to** MACA. No.1540 of 2012 6 **be Rs.3,000/-. The claimants before the Tribunal asserted that their son was working as a mason and was earning an amount of Rs.5,000/- in a month. However, there was no evidence adduced to show the same. Considering the age of the deceased, which was 18 at the time of his death, the Tribunal fixed a monthly income of Rs.3,000/- as applicable to an unskilled worker, which this Court is convinced; is adequate. However, for future prospects, going by** _**National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (5) KHC 350]**_ **, 40% addition has to be made and half has to be reduced for own expenses and the multiplier to be applied is 18, considering the age of the accused. Hence, the monthly income for the purpose of assessing the future prospects could be taken as Rs.2,100/-.** **7. The one other contention of the learned Counsel for the appellants is based on the decision of the Hon’ble Supreme Court reported in** _**Magma**_ MACA. No.1540 of 2012 7 _**General Insurance Company Ltd. V. Nanu Ram @ Chuhru Ram & Others [CDJ 2018 (SC) 958]**_ **. It is contended that the parents, as provided therein, has to be granted loss of consortium at Rs.40,000/each. The Hon’ble Supreme Court in the aforesaid case had considered the issue of consortium to parents and had held that parents are entitled to be awarded loss of consortium under the head of filial consortium. It is also declared that the amount awarded to the parents is a compensation for life, affection, care and companionship of the deceased child. The funeral expenses has also to be increased as per** _**Pranay Sethi**_ **[supra]. There need not be any compensation for pain and suffering, since there was no hospitalisation. The compensation for love and affection would also be deleted, since loss of consortium is granted. The compensation for the accident awarded is as follows:** MACA. No.1540 of 2012 8 |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded** **by the** **Tribunal** **`**|**Total amount** **after** **enhancement in** **appeal** **`**| |---|---|---|---| |**1**|**Compensation for loss** **of dependency and** **estate** **[3000x1/2x12/16]**|**288000**|**453600** **[2100x12x18]**| |**2**|**Transportation** **Expenses**|**2000**|**2000**| |**3**|**Damages to clothes**|**500**|**500**| |**4**|**Funeral expenses**|**3000**|**15000**| |**5**|**Medical expenses**|**5000**|**-----**| |**6**|**Pain and suffering**|**5000**|**-----**| |**7**|**Loss of love and** **affection**|**10000**|**-----**| |**8**|**Loss of consortium**|**-----**|**80000**| |**9**|**Loss of estate**|**5000**|**15000**| ||**Total**|**313500**|**566100**| **9. It is made clear that the entire compensation would be the liability of the 1[st] respondent, but subject to any orders in the appeal** **said to have been filed by the 1[st] respondent from the award dated 29.02.2016. The Insurance Company** MACA. No.1540 of 2012 9 **shall pay the amounts within a period of two months from the date of receipt of a certified copy of this judgment with liberty to recover the same from the 3[rd] respondent, subject to an appeal as aforesaid. The interest shall be as directed by the Tribunal.** **The appeal is allowed. No costs as awarded by this Court.** **Sd/-** **K. VINOD CHANDRAN JUDGE** **sp/06/10/18** **//True Copy//** **P.A. To Judge**