IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED v GOPIDAS & OTHERS

``` MACA NO. 932 OF 2018 ``` 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA,`** # **`1945`** ## **`MACA NO. 932 OF 2018`** ``` AGAINST THE AWARD DATED 11.07.201`7 IN OP(MV)NO.877/2011 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANT/5TH RESPONDENT:`** ``` IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED MUMBAI NOW REPRESENTED BY ITS LEGAL MANAGER, IFFCO BHAVAN, THOTTAKKAT ROAD, KOCHI-11. ``` ``` BY ADV SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS / PETITIONERS AND RESPONDENTS 1 TO 3 & 4 TO 8:`** - `1 GOPIDAS, S/O. PRABHAKARAN, PUTHENPURACKAL, WARD-14, MARARIKULAM SOUTH PANCHAYAT, PIN - 688 549.` - `2 SOBHA GOPIDAS WO. GOPIDAS PUTHENPURACKAL, WARD-14, MARARIKULAM SOUTH PANCHAYAT, PIN - 688 549.` - `3 DHANYA WO. PREMKUMAR, VAISYAMPARAMBU, WARD-8, MARARIKULAM SOUTH, PANCHAYAT, PIN - 688 549.` - `4 THE MANAGING DIRECTOR, KSRTC LIMITED, THIRUVANANTHAPURAM - 695 001.` - `5 AJEESH SO. SUBHRAN VADAICKA VEETTIL NEAR VEERANCHIRA TEMPLE, KODASSERY PANCHAYAT, CHAYIPPUM KUZHI P.O., CHALAKUDY, PIN - 680 721.` - `6 UNNIKRISHNAN SO. SANKARAN KALATHIL VEETTIL NALLALAM KARA, KOZHIKODE CORPORATION DIVISION NO.6, NALLALAM P.O., PIN - 673 027.` - `7 THE NEW INDIA ASSURANCE COMPANY LIMITED DO-II, THIRUVANANTHAPURAM - 695 001.` - `8 MS. ASHOK LEYLAND LIMITED SARDAR PATEL ROAD, GUINDY, CHENNAI. SRI.A.N.SANTHOSH – R1 TO R3 SRI.ALEX ANTONY SEBASTIAN P.A.-R4 SMT.M. HEMALATHA - R7` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 932 OF 2018 ``` 2 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No.932 of 2018 th Dated this the 6 day of December, 2023 JUDGMENT th The appellant was the 5 respondent in OP(MV)No.8772/2011 on the files of the Motor Accidents Claims Tribunal, Alappuzha. 2. The said claim petition was submitted by the respondents 1 to 3 herein seeking compensation for the death of one Vishnu, who died due to the injuries sustained in a motor accident that occurred on 07.02.2011. The deceased Vishnu was riding his motor cycle, through Alapuzha-Cherthala National Highway and when it reached Pathirappally, a KSRTC bus bearing Registration No.KL-07/AKTemp.2241, driven by the second respondent in the claim petition, the fifth respondent herein, hit behind the said motorcycle. As a result of the same, the deceased was thrown to the road and thereupon ``` MACA NO. 932 OF 2018 ``` **==> picture [87 x 9] intentionally omitted <==** another KSRTC Super Express bus bearing Registration No.KL15/7119, driven by the third respondent in the claim petition, the 6th respondent herein, ran over the deceased. Consequent to the injuries sustained, he died on the spot. He was 24 years old at the time of the accident, and he was working as a waiter at Enkey’s Tourist Home at Pathirappally with a monthly income of Rs.6000/-. The appellant herein was the insurer of the KSRTC Air Bus, whereas the KSRTC Super Express Bus th was insured with the seventh respondent herein. The 8 respondent was the manufacturer of the said bus. 3. The first respondent in the claim, the KSRTC filed a written statement, disputing the negligence on their part. They also disputed the quantum of compensation as well. According th to them, both the said vehicles were insured with the 4 and th 5 respondents in the claim petition. The seventh respondent th herein, the 4 respondent in the claim petition, submitted a written statement admitting the coverage of policy in respect of ``` MACA NO. 932 OF 2018 ``` 4 the Super Express bus, but they disputed the liability on various grounds. The negligence, as well as the quantum of compensation, were also disputed by them. The appellant herein filed a written statement, contending that, even though they have issued a policy to the Air Bus, it was only a cover th note intended to provide coverage to the 8 respondent hereinthe manufacturer of the bus, to enable them to transit the bus to the KSRTC. Therefore, they denied the coverage of policy in respect of the same, as the accident occurred on 07.02.2011, whereas the policy was issued on 15.11.2010. They also disputed the quantum of compensation. 4. The evidence in this case consists of oral testimony of PW1 and as documentary evidence of Exts.A1 to A9 were marked from the side of the claimants and from the side of the respondents in the claim petition Ext.B1 copy of the policy certificate was marked. 5. After the trial, the Tribunal came to the conclusion ``` MACA NO. 932 OF 2018 ``` **==> picture [87 x 9] intentionally omitted <==** that, the accident occurred due to the negligence on the part of the both drivers of the KSRTC and being the insurers of the said vehicles, the appellant and the seventh respondent were held liable to pay the compensation in equal proportion. The quantum of compensation was fixed as Rs.11,62,500/- (Rupees eleven lakhs sixty two thousand and five hundred only) and the said amount was directed to be deposited by the said insurance company along with interest @ 9% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellant herein/5th respondent in the claim petition challenging the award passed by the Tribunal. 6. Heard Adv.Sri.Mathews Jacob, the learned counsel appearing for the appellant, Adv.Sri.A.N.Santhosh, the learned counsel appearing for the respondents 1 to 3, Adv.Alex Antony Sebastian, the learned counsel appearing fort the fourth respondent and Smt.M.Hemalatha, the learned counsel appearing for the seventh respondent. ``` MACA NO. 932 OF 2018 ``` 6 7. The main contention raised by the learned senior counsel is to the effect that, as on the date of accident no coverage was available for the said vehicle. According to him, what was issued by the insurance company was only a cover note, which did not extend the coverage to the KSRTC. However, a perusal of a policy issued in this case would give a different impression. It is seen that the policy was issued on th 15.11.2010, in the name of M/s.Ashok Leyland Limited, the 8 respondent herein, the manufacturer of the said vehicle. The specific contention of the learned senior counsel is that, the policy was intended to cover only for a limited period for th enabling the 8 respondent for transit of the said vehicle from Chennai to the office of the KSRTC, at Kerala. But, the crucial aspect to be noticed is that the period of policy mentioned in the said certificate was for the entire year from 01.04.2010 to 31.03.2011. Of course, it is true that, the vehicle at the relevant time stood registered in the name of KSRTC. But that ``` MACA NO. 932 OF 2018 ``` 7 by itself cannot be a reason to discard the coverage of policy because of the fact that, the insurer was the M/s.Ashok Leyland Limited. This is particularly because, even if the transfer of ownership was occurred, as per the provision of Section 157 of the Motor Vehicles Act when the ownership of the vehicle is transferred, the policy issued would also automatically be transferred in the name of the transferee. 8. Even otherwise, the facts and circumstances of the case would not justify the contention raised by the learned counsel for the appellant. The Tribunal found that at the relevant time, the vehicle was in transit at the instance of the manufacturer, to the KSRTC. The specific contention of the appellant is that the policy was intended for transit of the said vehicle from the manufacturer to the KSRTC. It is already found that the vehicle was in the process of transit, and such transit took place within the period of coverage contemplated under the policy. Hence, the policy coverage cannot be denied. ``` MACA NO. 932 OF 2018 ``` **==> picture [87 x 9] intentionally omitted <==** Therefore, under no circumstances, the contention raised by the insurance company can be accepted and hence I do not find any merit in the said contention. 9. The learned senior counsel further contented that the amount awarded by the tribunal was also on the higher side. It was pointed out that, the Tribunal has awarded compensation of Rs.1,00,000/- (Rupees one lakh only) towards loss of love and affection and the amounts awarded under the head of loss of estate as well as funeral expenses are also on the higher side. It is true that, the said amounts are on the hgher side. But the crucial aspects to be noted that, this is an accident occurred in the year 2011. The monthly income of the deceased was taken by the tribunal as Rs.6,000/- (Rupees six thousand only) by the tribunal, which appears to be on the lower side. As rightly pointed out by the learned counsel for the claimants, if the method of computation of monthly income, in the light of the principles laid down by the Hon’ble Supreme ``` MACA NO. 932 OF 2018 ``` 9 Court in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236] and Syed Sadik V. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735], is applied, under no circumstances, the monthly income in respect of an accident occurred in the year 2011 can be lessor that Rs.8000/- (Rupees eight thousand only). While making this observations, I am conscious of the fact that, the claim made by the claimants as monthly income was Rs.6000/- (Rupees six thousand only). However, in Minu Rout v. Satya Pradyumna Mohapatra [2013 (3) KLT OnLine 1128 (SC)], the Hon’ble Supreme Court has pleased to take the monthly income at a rate higher than what was claimed in the claim petition. It is to be noted that, this court and the tribunal are under an obligation to ensure “just compensation” to the victim, and while doing such exercise, the fact that the monthly income of the deceased was shown at a lessor rate cannot stand in the way. This is particularly because of the fact that, ``` MACA NO. 932 OF 2018 ``` **==> picture [93 x 9] intentionally omitted <==** it was a claim for compensation for death and the person claiming a compensation may not be exactly aware of the exact monthly income received by the deceased at the relevant time. Therefore, much emphasis need not be given to the amount claimed in the claim petition. While considering the compensation for loss of dependency, by taking the monthly income as per the principles laid down in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236] and Syed Sadik V. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735], I am of the view that, the compensation for loss of dependency awarded by the tribunal was on the lower side. Therefore, the excess amount, awarded by the Tribunal under the head of loss of love and affection, funeral expenses and loss of estate, could be adjusted against the lessor amount awarded by the tribunal under the head of loss of dependency. In short, when the total amount awarded by the Tribunal is taken into consideration, I ``` MACA NO. 932 OF 2018 ``` **==> picture [93 x 9] intentionally omitted <==** do not find any unreasonableness in the amount, and hence I do not find any justification for interference in the quantum of compensation. In such circumstances, I do not find any justifiable reason to accept the contentions raised by the appellant. Accordingly, this appeal is dismissed, by confirming the award passed by the Tribunal. sd/- ZIYAD RAHMAN, A.A, JUDGE R.AV