Jini Sebastian v. Joseph Kurian & The National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 MACA.No. 1296 of 2004() ----------------------OPMV.270/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- JINI SEBASTIAN, D/O.A.SEBASTIAN, AND LALIMMA, AMBALAKALATHIL, ATHIRAMPUZHA P.O. KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENTS. --------------------------- 1. JOSEPH KURIAN, MURICKAL HOUSE, SSREEKANDAMANGALAM P.O. ATHIRAMPUZHA, KOTTAYAM. 2. THE NATIONAL INSURANCE CO.LTD., IST FLOOR, 6 WEST NASI STREET, MADURAI. ADV. SRI.RAJAN P.KALIYATH FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **R. BASANT & N.K. BALAKRISHNAN, JJ.** **------------------------------------------------M.A.C.A. No.1296 of 2004-** B **------------------------------------------------Dated this the 6[th] day of July, 2011 JUDGMENT** ## **Basant,J.** The claimant is the appellant. She was a minor on the date of the accident. She along with her mother was travelling on a motor-cycle which her father was riding at the time of accident. That accident took place on 27/1/85. She and her mother/pillion rider were thrown off the two wheeler. She was saved from the impact by her mother. But her mother suffered grievous injuries. She succumbed to those injuries while she was undergoing treatment at the hospital on the very next day. Her father expired in 1992. Only in 1995 her guardian, her uncle, was advised that a claim for compensation can be lodged. Accordingly, in 1995 - on 2/2/95 to be precise, she through her guardian and next friend, her uncle, preferred this claim for compensation. The claim for compensation was limited to Rs.4 lakhs. ## **M.A.C.A. No.1296 of 2004** -: 2 :- 2. The vehicle belonged to the 1[st] respondent. Her deceased father, who was riding the motor-cycle at the relevant time, was arrayed as the 2[nd] respondent with information that he has expired. The insurer was arrayed as the 3[rd] respondent. 3. The 1[st] respondent had entered appearance. The accident was not disputed. The insurance company appeared and resisted the claim. That the vehicle at the relevant time was insured was not disputed. The liability was disputed. 4. Parties went to trial on these contentions. Exts.A1 to A13 were marked on the side of the claimant. Exts.B1 to B3 were marked on the side of the respondent/insurer. The guardian of the claimant was examined as P.W.1. An eye witness to the occurrence was examined as P.W.2. The Manager of the insurance company was examined as R.W1. 5. The Tribunal, on an anxious consideration of all the relevant inputs, proceeded to pass the impugned order rejecting the claim for compensation. The Tribunal appears to have rejected the claim for compensation on the ground that there is no tangible material to show that the claimant is the legal heir/ daughter of the deceased. The Tribunal further appears to have ## **M.A.C.A. No.1296 of 2004** -: 3 :- felt that the claim by the claimant against her father is not justified and maintainable. The Tribunal entered a definite finding that the policy does not cover liability in respect of the pillion rider. On these grounds the Tribunal proceeded to pass the impugned award rejecting/dismissing the claim of the claimant. 6. Arguments have been advanced before us. The claimant has now attained majority. A further document has been produced as Ext.A14 along with I.A.No.1792/11. We allow the petition and receive the said document as Ext.A14 as we find the same to be crucially relevant for the resolution of the dispute. 7. On the arguments advanced at the Bar by the learned counsel for the appellant and the learned counsel for the 3[rd] respondent, following questions arise for determination: (i) Whether the claim is barred by limitation? (ii) Whether the claimant is the daughter/legal heir of the deceased? (iii) Whether the claimant is entitled to claim compensation from her father/rider, the 1[st] respondent/owner and the 3[rd] ## **M.A.C.A. No.1296 of 2004** -: 4 :- respondent/insurer of the vehicle? (iv) Whether the pillion rider is covered by the policy of insurance? 8. PointNo.(i): It is trite that there is no bar of limitation against filing a claim for compensation under Sec.166 of the Motor Vehicles Act now. On the date when the claim was lodged i.e., 2/2/95, the claimant was a minor. The period of limitation could not, at any rate, have run against her during her minority. In these circumstances, we find no merit in the contention that the claim lodged by the claimant during her minority through her guardian is barred by limitation. This point is answered against the 3[rd] respondent. 9. Point No.(ii): A dispute is raised as to whether the claimant is really the daughter of the deceased. P.W.1, the guardian who is the brother of the deceased, had asserted that the claimant is the daughter of his deceased sister. We find no serious challenge on that aspect. Specific denial to that effect is not seen raised by any one of the respondents in the written statement. Of course, we note that the 3[rd] respondent has raised a plea that the claimant is put to strict legal proof that “she is not ## **M.A.C.A. No.1296 of 2004** -: 5 :- ” the only legal heir . The relationship of mother and daughter between the deceased and the claimant minor is not specifically disputed in the written statement and we reckon that was crucial. The evidence of P.W.1 on that aspect is not challenged also. However, the Tribunal appears to have entertained certain doubts and those doubts stem from Ext.A4 - the relevant page of S.S.L.C. book where the name of the mother of the claimant is shown as `Gracy Sebastian'. It was explained to the court that Gracy Sebastian is the lady whom the father of the claimant had re-married after the death of the mother of the claimant. Satisfactory indications to that effect appear to be available also. It is true that no specific document was produced to establish the mother - daughter relationship between the claimant and the deceased. Ext.A12 marriage certificate was, of course, placed before court to show that the claimant's father had re-married and `Gracy' is the wife in the second marriage. The Tribunal appears to have taken objection to the fact that the claimant did not examine herself as a witness. No better documents were produced before the Tribunal in support of the assertion that the claimant was the daughter of the deceased Laliamma @ Laly ## **M.A.C.A. No.1296 of 2004** -: 6 :- Sebastian. It is precisely to dis-abuse any possibility of a doubt or suspicion on this aspect that the claimant has now produced Ext.A14. That clearly shows that the deceased had left behind her husband Mr. Sebastian and daughter Gini Sebastian - the claimant, as persons/legal heirs eligible to claim family pension. Ext.A14 shows that though the family pension was initially payable to the husband of the deceased, after his re-marriage, family pension was sanctioned to the only daughter i.e., the claimant herein. The last trace of doubt, if any, that can linger in the mind of a reasonably prudent person is removed by production of Ext.A14. We do not find any merit in the contention that the claimant has not been proved to be the daughter/legal heir of her deceased mother - Laliamma - the victim of the accident. Her maiden name was Laliamma Philip. After she got married to the father of the petitioner, she started describing herself in the documents as `Laliamm Sebastian'. We need only note that there is no dispute specifically raised on the relationship and, at any rate, after Ext.A14 no doubt whatsoever can remain in the mind of the court about the relationship between the deceased and the claimant as mother and daughter. ## **M.A.C.A. No.1296 of 2004** -: 7 :- The second point also thus answered in favour of the claimant. 10. Point No.(iii): The next contention is whether the claimant is entitled to claim compensation from the owner and insurer of the vehicle when her father himself was the rider of the motor-cycle. The evidence clearly indicates and suggests that the accident occurred on account of the negligence of the rider of the motor-cycle i.e., the father of the petitioner who at the relevant time was riding the motor-cycle. He did not suffer any injuries; but his wife suffered injuries and succumbed to the same. He did not claim any compensation also from the owner/ insurer of the vehicle in respect of the death of his wife. But the claimant, though the daughter of the deceased father who was riding the motor-cycle at the relevant time, is, in law, a different person who has a right to stake independent claim against the rider of the motor-cycle who happened to be her father. The relationship between the claimant and her father/rider cannot in any way frustrate or set at naught her claim against him as tort feasor and vicariously against the owner of the vehicle and the insurer of the vehicle for such loss that she has suffered. She is certainly entitled to the compensation ## **M.A.C.A. No.1296 of 2004** -: 8 :- notwithstanding the fact that the rider of the motorbike was her father. This point is also thus answered in favour of the claimant. ## Point No.4 11. Fourthly and lastly a contention is seen raised that the policy of insurance does not cover the pillion rider travelling in the motorbike. Significantly such a plea is not specifically raised in the written statement filed by the 3[rd] respondent. The policy document has been produced as Ext.B1. A perusal of the said document perhaps explains why such a contention was not raised in the written statement. The document describes the policy to be a comprehensive policy of insurance. The learned counsel for the 3[rd] respondent now fairly accepts that the policy being comprehensive and no specific contention to that effect having not been raised before the Tribunal, the insurer does not now want to raise any contention that the policy of insurance does not cover any liability in respect of the pillion rider. At any rate, that contention having not been specifically raised before the Tribunal, the 3[rd] respondent cannot aspire to raise that contention before us at this stage. A perusal of Ext.B1 policy ## **M.A.C.A. No.1296 of 2004** -: 9 :- does not also show any merit in the contention that the liability in respect of the pillion rider is not insured. In the total absence of any specific contention raised and in the light of the admission that it is a comprehensive policy, we are of the opinion that it is unnecessary to delve deeper into that contention. Point No.4 is also answered in favour of the appellant/claimant. 12. The above discussions clearly reveal that the claimant is entitled to claim compensation for the loss suffered by her. 13. The deceased, the documents clearly show and it is not disputed, was a Lower Primary School Assistant in service. Ext.A10 salary certificate shows that her monthly total salary on the date of her death (28.01.1985) was Rs.1,065/-. She is shown to be aged 33 years on the date of the accident. Going by the second schedule to the Motor Vehicles Act, the multiplier that can be adopted is 17 and we find no reason in the facts and circumstances of this case to adopt any lesser multiplier. Coming to the multiplicand, we must alertly note that the salary certificate relates to the year 1985. She was in stable Government service. She was below the age of 35 years. In these circumstances, we are certainly of the opinion that ## **M.A.C.A. No.1296 of 2004** -: 10 :- appropriate provision has to be made for further improvement in the economic prospects. Certainly the salary was bound to increase and improve. It can be seen that actually the salary has been increased several folds by now. 14. The learned counsel for the claimant places reliance on para.24 of the decision in **Sarla Verma v. Delhi Transport Corporation** [2009 ACJ 1298 (SC)] to contend that at any rate 50% increase must be reckoned while adopting the multiplicand. We find the said request to be absolutely reasonable. We are satisfied that the monthly income for the purpose of ascertaining the compensation payable by the multiplier-multiplicand method can be reckoned as 50% more than Rs.1,065/-, the salary on the date of death of the deceased. 15. Other claims are made under the heads of transport to hospital, funeral expenses, damage to clothing and medical expenses. Though the counsel strenuously claims that these amounts must also be made payable to the claimant, we are unable to accept the said request in the light of the fact that the tort feasor, husband of the deceased, ie. the father of the claimant, must himself have incurred such expenditure and it is ## **M.A.C.A. No.1296 of 2004** -: 11 :- not necessary to direct payment of such amounts, which the claimant/appellant did not have to incur. 16. Under the head `loss of love and affection', an amount of Rs.50,000/- is claimed. We note that the claimant had lost her mother when she was aged 1 ½ years - at a time when the child most dearly needs and requires the love, affection, support and care of the mother. In the facts and circumstances of this case, we are of the opinion that against the amount of Rs.50,000/claimed as compensation under the head of loss of love and affection, an amount of Rs.40,000/- can be awarded. We take note of the further circumstance that the claimant had lost her father also shortly after the death of her mother. 17. Compensation is claimed under the head of pain and suffering also. The deceased succumbed to the injuries only on the date following the date of the accident. We are satisfied that an amount of Rs.5,000/- as claimed can be awarded under the head of pain and suffering. A further conventional amount of Rs.5,000/- can be awarded under the head of loss of estate. 18. The above discussions lead us to the conclusion that the claimant is entitled to the following amounts as ## **M.A.C.A. No.1296 of 2004** -: 12 :- compensation. i) Loss of dependency : Rs.2,17,260.00 (1065 X 150/100 X 12 X 2/3 X 17) ii) Loss of love and affection : Rs. 40,000.00 iii) Compensation for pain and suffering : Rs. 5,000.00 iv) Loss of estate : Rs. 5,000.00 -----------------Total : Rs.2,67,260.00 ======== We are satisfied that interest @ 8% per annum can also be directed to be paid from the date of the claim, ie. 02.02.1995 to the date of payment. 19. In the result: a) This appeal is allowed; b) Respondents 1 and 3 are directed to pay the said amount of Rs.2,67,260/- (Rupees Two lakhs sixty seven thousand two hundred and sixty only) to the claimant along with interest @ 8% per annum from the date of the claim, ie. 02.02.1995, to the date of payment; c) The appellant shall also be entitled to her costs throughout including a total amount of Rs.15,000/- (Rupees ## **M.A.C.A. No.1296 of 2004** -: 13 :- Fifteen thousand only); d) The 3[rd] respondent shall satisfy the award by producing a cheque for the entire amount (less the Court Fee payable) before the Tribunal within a period of 60 days from this date; e) Appropriate directions regarding release/deposit shall be issued by the Tribunal; f) Cheque for the Court Fee of Rs.3,373/- (Rupees Three thousand three hundred and seventy three only) shall also be produced by the 3[rd] respondent in the name of the Tribunal. ## **Sd/-** **(R.BASANT, JUDGE)** ## **Sd/-** **(N.K.BALAKRISHNAN, JUDGE)** rtr/ //true copy// P.S. to Judge