Gouthaman Nair and Shibu v Ajithakumari, VrinthA, Vithya and Branch Manager, The New India Assurance Co-Operative Ltd

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 23RD DAY OF MAY 2017 / 2ND JYAISHTA, 1939** **MACA.No. 503 of 2015** **AGAINST THE AWARD IN OP(MV)785/2006 of M.A.C.T.,NEYYATTINKARA DATED 12-12-2014** ## **APPELLANTS/RESPONDENT 1 & ADDL.R3** ## **1 GOUTHAMAN NAIR** **S/O GOVINDA PILLAI, AGED 60 YEARS, CHITRA BHAVAN, ARAYANCODE, OTTASEKAHARAMANGALAM, THIRUVANANTHAPURAM** **2 SHIBU, S/O. THANKARAJAN, KULIRMA MYLACHAL, ARAYANCODE, OTTASEKAHARAMANGALAM,** **THIRUVANATHAPURAM** **BY ADVS.SRI.SUMAN CHAKRAVARTHY** **SMT.K.R.RIJA** ## **RESPONDENTS/APPLICANTS & RESPONDENT 2:** ## **1. AJITHAKUMARI** **W/O LATE GOPALAN, AGED 36 YEARS, VRINTHA BHAVANAM, CHULLIYOOR, MARAYAMUTTOM, NEYYATTINKARA 695 121** ## **2. VRINTHA, D/O ANITHAKUMARI,** **VRINTHA BHAVANAM, CHULLIYOOR, MARAYAMUTTOM, NEYYATTINKARA 695 121** ## **3. VITHYA** **D/O. ANITHAKUMARI, VRINTHA BHAVANAM, CHULLIYOOR, MARAYAMUTTOM, NEYYATTINKARA 695 121** ## **4. THE BRANCH MANAGER,** **THE NEW INDIA ASSURANCE CO-OPERATIVE LTD, IIND FLOOR, SWADESHABHIMANI COMPLEX, NEAR BUS STAND, NEYYATTINKARA 695 121** **R4 BY ADV. SRI.M.JACOB MURICKAN** **R1-R3 BY ADV. SRI.S.MOHAMMED AL RAFI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ami/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.503 of 2015 **-----------------------------------------------** Dated this the 23[rd] day of May, 2017 ## **J U D G M E N T** ## Ravikumar, J. This appeal is directed against the judgment and award dated 12.12.2014 passed by the Motor Accidents Claims Tribunal, Neyyattinkara, in OP(MV)No.785/06. The appellants herein were respectively respondent Nos.1 and 3 in the said claim petition filed under Section 166 of the Motor Vehicles Act, 1994, by respondents 1 to 3 herein. The appellants are respectively the owner and driver of the lorry involved in the accident in question. The 4[th] respondent herein, who is the insurer of the alleged offending vehicle was the 2[nd] respondent therein. The motor vehicle accident that led to the filing of the aforesaid original petition had occurred on 2.2.2006 at about 4 p.m. Respondents 1 to 3 herein/the claimants were the legal heirs of the victim of the accident. The deceased Gopalan was travelling in the lorry bearing registration No.KBR-3078 from Anavoor to Sasthampara. When it reached near Kottakkal M.A.C.A.No.503 of 2015 :-2-: Sasthampara, going by the case of the claimants, the 2[nd] appellant herein/the 3[rd] respondent therein, applied brake abruptly and turned the lorry towards right and consequently, the deceased Gopalan was thrown off the lorry. Having sustained mortal injuries, he was taken to the Government Hospital, Neyyattinkara, and from where he was referred to Medical College Hospital, Thiruvananthapuram. While undergoing treatment there, he succumbed to the injuries, on 10.2.2006. It is alleged in the claim petition that he was a loading worker by profession and that he was then, accompanying the goods loaded in the lorry. The deceased was aged 41 years at the time of the accident and according to the claimants, he was earning 5,000/-₹ per month. On the side of the claimants, the 2[nd] claimant/2[nd] respondent herein, was examined as PW1 and one Vijayaraj was examined as PW2. No oral evidence was adduced by the respondents therein. The documentary evidence on the side of the claimants consisted of Exts.A1 to A5 and Exts.B1 to B6 were marked on the side of the respondents therein. The Tribunal, on evaluation of the evidence on record and appreciating the rival contentions, passed the impugned judgment and awarded a compensation of 8,67,000/- with interest @ 9% per annum from₹ M.A.C.A.No.503 of 2015 :-3-: the date of petition till realisation. The 2[nd] respondent therein/ the 4[th] respondent herein, the insurer of the offending vehicle was granted the liberty to recover the amount awarded together with interest thereon from respondents 1 and 3/the appellants herein, after satisfying the award. It is aggrieved by the award to the extent it permitted the insurer to recover the amount from them that this appeal has been preferred. 2. We have heard the learned counsel for the appellants, the learned counsel appearing for respondents 1 and 3 herein, viz., the claimants, as also the learned counsel for the 4[th] respondent-insurer. Twin contentions have been raised by the appellants herein to assail the award. It is contended that the amount awarded is exorbitant considering the absence of evidence of income. In that regard, it is also contended that the Tribunal had gone wrong in notionally fixing the income of the deceased as Rs.4,500/-. The other contention is that having found the deceased as not a gratuitous passenger in the vehicle in question, the Tribunal ought not to have granted liberty to the 2[nd] respondent-insurer to recover the amount awarded together with interest from them after satisfying the award. It is the case of the appellants that the materials on record would reveal that the M.A.C.A.No.503 of 2015 :-4-: deceased Gopalan was accompanying the offending vehicle carrying granites as a loading/unloading worker. It is further contended by the learned counsel for the appellants that it is the improper and perverse appreciation of evidence on record that culminated in the impugned award granting exorbitant quantum of compensation and giving liberty to the 4[th] respondent herein to effect recovery of the amount awarded together with interest, after satisfying the award. The learned counsel appearing for respondents 1 to 3 herein, viz., the claimants, submitted that the impugned judgment calls for no interference. The learned counsel appearing for the 4[th] respondent submitted that it is the proper appreciation of the evidence on record that culminated in the impugned judgment. It is also submitted by the learned counsel that, going by the original pleadings in the claim petition, the deceased Gopalan was travelling on the platform of the offending vehicle and in fact, as per the same, he was sitting on the granites loaded on the offending vehicle. It is also the submission that boarding on a goods vehicle is statutorily prohibited as can be seen from Section 123 of the Motor Vehicles Act. The learned counsel further contended that though an amendment was brought to the pleadings, more particularly, in M.A.C.A.No.503 of 2015 :-5-: respect of the statement in the claim petition that the deceased was travelling on the platform of the lorry, the evidence let in through PWs.1 and 2 did not virtually support the amended version. It is also contended by the learned counsel for the 4[th] respondent that a scanning of the deposition of PW2 would reveal that he was not actually an occurrence witness. He would admit the fact that he was not questioned by the police or he had not stated before the police that he had witnessed the incident. That apart, it is contended that PW1, who is none other than the daughter of the deceased had deposed before the Tribunal that she had not witnessed the accident. 3. The Tribunal had arrived at a conclusion that the appellants herein, who are respectively the owner and driver of the vehicle, violated the statutory provisions. That apart, it is found that no evidence whatsoever was let in by the claimants to show that the deceased was the employee of the owner of the vehicle. So also, no evidence was let in, to establish that he was accompanying the load as an authorised representative of the owner of the goods. In such circumstances, on appreciating the evidence on record, the Tribunal had arrived at the conclusion that the deceased was a gratuitous passenger in the vehicle. As a M.A.C.A.No.503 of 2015 :-6-: necessary sequel to the said conclusion, the Tribunal had granted the insurer of the vehicle the right to recover the amount awarded after satisfying the award. 4. We will firstly consider the question whether the contention of the appellants that the amount awarded is excessive, could be sustained. Evidently, the contention of the claimants/respondents 1 to 3 herein, before the Tribunal was that the deceased was a loading worker and that he was earning ₹5,000/- per month. The appellants did not dispute the fact that the deceased was a loading and unloading worker. It is also evident from the discussion in the impugned judgment that despite the failure on the part of the claimants to adduce cogent evidence that the deceased was a loading worker, virtually the Tribunal accepted the contention that he was a loading worker by profession. The Tribunal took note of the fact that in the FIS as also in Ext.A2 charge sheet, the profession of the deceased was mentioned as a loading and unloading worker. In this context, it is to be noted that the alleged incident itself occurred when he was accompanying in a lorry carrying granites. As noticed earlier, the appellants too did not dispute the said fact. The case of the insurer was that the deceased was travelling on the platform and M.A.C.A.No.503 of 2015 :-7-: in fact, he was sitting on the granites. As regards the averments in the claim petition, it is to be noted that going by the original version, the deceased was travelling on board of the said vehicle. True that an amendment was brought in subsequently and the words 'travelling on' were deleted and the words 'accompanied in' were incorporated by way of amendment. None of the respondents before the Tribunal had virtually challenged the finding of the Tribunal that the deceased was a loading worker. In such circumstances, also taking note of the fact that the accident occurred while the deceased was travelling in a loaded lorry, we do not find any reason to interfere with the finding of the Tribunal that the deceased was not a gratuitous passenger. Taking into account the fact that the accident had occurred in the year 2006 and at the time of the accident, the deceased was only 41 years, we do not find any reason to hold that the monthly income fixed by the Tribunal for calculation purpose is excessive. It warrants no interference. 5. The multiplier was correctly identified by the Tribunal, taking into account the age of the deceased, as '14'. Evidently, taking into account the number of dependents, deduction from the income of the deceased was also effected correctly, in tune M.A.C.A.No.503 of 2015 :-8-: with the decision of the Honourable Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802]** . In the light of the decision of the Honourable Apex Court in **Rajesh v. Rajbir Singh [2013(3) KLT 89(SC)]** the sums of compensation granted under the heads 'loss of consortium' and 'funeral expenses' cannot be said to be excessive and in fact, the amounts under those heads were granted in tune with the said decision. While considering the contention of the appellants that the award invites interference on the ground of exorbitancy of the quantum of compensation, certain other facts also would assume relevance. A perusal of the quantum of compensation granted under the head 'loss of love and affection' would reveal that as against the claim of 1,50,000/-, only an amount of 30,000/- was₹ ₹ granted. It is to be noted that claimants 2 and 3 were minors at the time of death of their father. They were respectively aged 12 years and 7 years. Taking note of such a circumstance, i.e., minority of the children at the time of death of their father in a motor vehicle accident, in Rajesh's case cited supra, the Honourable Apex Court had granted an amount of 1 lakh₹ towards loss of love and affection. On a careful scrutiny of the impugned award and considering the sum of compensation M.A.C.A.No.503 of 2015 :-9-: granted under different heads, we are at a loss to understand the basis for the contention that the Tribunal had granted exorbitant compensation. In short, we do not find any reason to uphold the contention that the Tribunal granted exorbitant compensation. 6. Now, what survives for consideration is whether the Tribunal is justified in mulcting liability virtually on respondents 1 and 2 before the Tribunal, viz., the appellants herein. As noticed hereinbefore, the Tribunal had granted liberty to the insurer of the vehicle to recover the amount paid to satisfy the award after satisfying the award. A scanning of the impugned judgment would reveal that the Tribunal had done so, relying on two crucial aspects. After appreciating the evidence on record, evidently, the Tribunal had come to the conclusion that the deceased was travelling on the top of the loaded goods, virtually he was on the platform of the lorry. The Tribunal virtually found that the deceased, instead of sitting in the driver's cabin, was sitting on the platform of the lorry, virtually on a granite loaded on the vehicle. The learned counsel appearing for the appellants contended that the said finding of the Tribunal is against the weight of evidence. It is submitted by the learned counsel that the oral testimony of PWs.1 and 2 would reveal that the deceased M.A.C.A.No.503 of 2015 :-10-: was inside the cabin of the offending vehicle. As noticed hereinbefore, in the claim petition what was originally stated by the claimants was that the deceased was 'travelling on' the lorry and true that it was subsequently got amended and in place of the words 'travelling on', the words 'accompanied in' were incorporated. At the same time, the evidence of PW1 would reveal that she had admitted the fact that she had not witnessed the accident in question. She would further submit that her mother had given a statement to the police to the effect that her father was actually travelling on the lorry and not inside the cabin. The evidence of PW2 would undoubtedly reveal that he was not an occurrence witness. True that he claimed that he had witnessed the incident, but at the same time he would admit that he did not divulge the said fact to anyone and he was never been questioned by the police. In short, it is nobody's case that he was an occurrence witness cited in the charge sheet. Even if it is taken that the finding of the Tribunal that the insurer is not liable to indemnify the owner of the vehicle i.e., the 1[st] respondent/1[st] appellant, in the light of the aforesaid contentions, we are of the view that it has to be sustained on another ground. 7. For a proper appreciation of the contention regarding M.A.C.A.No.503 of 2015 :-11-: the status of the deceased at the time of the accident qua the lorry, it is only apropos to refer to Section 147 of the Motor Vehicles Act, 1988, which reads as follows : “ **147. Requirements of policies and limits of liability** .--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -- (a) is issued by a person who is an authorized insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-- (i) against any liability which may be incurred by him in respect of the death of or bodily[ 1] [injury to any person, including owner of the goods or his authorized representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a good carriage, being carried in the vehicle, or (ii) to cover any contractual liability.” In the light of the evidence on record, the appellant cannot rely on the provisions under Section 147 of the M.V.Act to claim that M.A.C.A.No.503 of 2015 :-12-: in respect of the accident in question, the 4[th] respondent should have held liable to indemnify him. If the deceased was an authorised representative of the owner of the goods, such a statement ought to have been specifically made in the claim petition. We have gone through the pleadings in the claim petition. On a perusal of the evidence on record, it is evident that no such averment was made anywhere in the claim petition. In other words, there is absolute absence of any contention in the claim petition to the effect that the deceased had accompanied the goods carried in the lorry as an authorised representative of the owner of the goods. Then the question is whether there is any averment in the claim petition to the effect that he was there in the vehicle as an employee of the owner of the lorry, the offending vehicle. It is to be said that there is absolute absence of such an averment as well. The specific case of PW1, who is none other than the daughter of the deceased, is that her father was employed as a lorry worker and she gave the name of her father's employer as one Gopan. She would also depose before the Tribunal that the owner of the offending vehicle is one Gouthaman Nair, the 1[st] appellant. In such circumstances, it can be seen that there is absolute absence of any averments and M.A.C.A.No.503 of 2015 :-13-: therefore, absolute absence of any evidence to conclude that the deceased was an employee of the owner of the offending vehicle. When there is absolute absence of any averments and also evidence either to the effect that the deceased had accompanied the vehicle as an authorised representative of the owner of the goods or that he was accompanying the goods loaded in the lorry in his capacity as the employee of the owner of the vehicle, it cannot be said that the Tribunal had gone wrong in fastening the liability on the appellants and in granting liberty to the 4[th] respondent-insurer to recover the amount paid to satisfy the award. Even if it is taken that he was travelling in the vehicle as a head load worker, even then, the order of the Tribunal granting liberty to the insurer to pay and recover, cannot be interfered with in the light of the decision of a Division Bench of this Court in **New India Assurance Company Limited v. Alekutty Antony (2009(4) KLT 130)** . This Court held that a head load worker travelling in the goods vehicle outside the cabin and on the platform could not be treated as a representative of the owner of goods and in such circumstances, the Insurance company could not be held liable. In view of the discussions made as above, we do not find any M.A.C.A.No.503 of 2015 :-14-: reason to interfere with any of the findings of the Tribunal. In such circumstances, this appeal is liable to fail and accordingly, it is dismissed. There will be no order as to costs. All pending interlocutory applications are closed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** ami/24.5.17 //True copy// P.A.to Judge