MACA No. 1779 of 2013 and MACA No. 3846 of 2016, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943 MACA NO. 1779 OF 2013** **AGAINST THE AWARD DATED 30.01.2013 IN OP(MV) 1057/2007 OF** **MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY** **APPELLANT/4TH RESPONDENT IN THE OP:** **NATIONAL INSURANCE CO. LTD., PAYYANNUR, REPRESENTED BY ITS MANAGER, NATIONAL INSURANCE CO.LTD., KOCHI REGIONAL OFFICE, OMANA BUILDINGS, PADMA JUNCTION, KOCHI-35.** **BY ADV SRI.A.R.GEORGE** ## **RESPONDENTS/CLAIMANTS & RESPONDENTS 1 TO 3 IN THE OP:** - **1 T.S. KRISHNAN KUTTY, S/O.SANKARAN NAIR, TALAKKONATH PUTHEN VEETTIL, PACHANI, THIMIRI P.O, CHAPPARAPADAVA VIA., KANNUR DISTRICT-670581.** - **2 P.N.OMANA,** - **W/O.T.S.KRISHNAN KUTTY, -DO- -DO-** - **3 T.K.SANDHYA,** - **D/O.T.S.KRISHNAN KUTTY, -DO- -DO-** - **4 T.K.SATHEESH KUMAR,** - **S/O.T.S.KRISHNAN KUTTY, -DO- -DO-** - **5 AJAYAN K.M., S/O.SUKUMARAN NAIR, KIZHAKKETHIL HOUSE, PANATHUR P.O., KANHANGAD, KASARAGOD DISTRICT-671532.** - **6 V.LATHAKUMARI, KOOVACHAL HOUSE, KOOVERI P.O., CHAPPARAPADAVA VIA., TALIPARAMBA TALUK, KANNUR DISTRICT, PIN670581.** - **7 M.M.CHACKO, S/O.MATHEW, MANKUDIYIL HOUSE, PANATHADI, KANDUPALLI, PO RANIPURAM, RAJAPURAM VIA, KASARAGOD DISTRICT-671532.** - **BY ADVS.** - **SRI.J.ABHILASH** - **SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI FOR R1 TO R4** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY** **HEARD ON 12.11.2021 ALONG WITH M.A.C.A.NO.3846/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _M.A.C.A.No.1779 of 2013 & M.A.C.A.No.3846 of 2016_ 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943 MACA NO. 3846 OF 2016** **AGAINST THE AWARD DATED 30.01.2013 IN OP(MV) 1057/2007 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANTS/PETITIONERS :** - **1 T.S.KRISHNAN KUTTY, S/O. SANKARAN NAIR, AGED 60 YEARS, TALAKKONATH PUTHEN VEETIL, PACHANI, TIMIRI P.O., CHAPPARAPADAVA VIA, KANNUR DIST-670 581.** - **2 P.N.OMANA, W/O. T.S.KRISHNAN KUTTY, AGED 55 YEARS, PAYYANIKKAL HOUSE, PACHANI, TIMIRI P.O., CHAPPARAPADAVA VIA, KANNUR DIST-670581.** - **3 T.K.SANDHYA, D/O.T.S.KRISHNANKUTTY, AGED 33 YEARS, TALAKKONATH PUTHEN VEETIL, PACHANI, TIMIRI P.O., CHAPPARAPADAVA VIA, KANNUR DIST-670581.** - **4 T.K.SATHEESH KUMAR, S/O. T.S.KRISHNANKUTTY, AGED 38 YEARS, TALAKKONATH PUTHEN VEETIL, PACHANI, TIMIRI P.O., CHAPPARAPADAVA VIA, KANNUR DIST-670581. BY ADVS.** - **SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH** ## **RESPONDENTS/RESPONDENTS :** - **1 AJAYAN K.M., S/O. SUKUMARAN NAIR, KIZHAKKETHIL HOUSE, PANATHUR P.O., KANHANGAD, KASARAGODE DIST671532.** - **2 V.LATHA KUMARI, KOOVACHAL HOUSE, KOOVERI P.O., CHAPPARAPADAVA VIA, TALIPARAMBA TALUK, KANNUR DIST-670581.** _M.A.C.A.No.1779 of 2013 & M.A.C.A.No.3846 of 2016_ 3 **3 M.M.CHACKO, S/O. MATHEW MANKUDIYIL HOUSE, PANATHADI, KANDUPPALLI, P.O.RANIPURAM, RAJAPURAM VIA, KASARGOD DIST-671532.** - **4 THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD., 1ST FLOOR, PERUMAL BUILDING, PERUMBA, PAYYANNUR P.O., KANNUR DIST-670307.** **BY SRI.A.R.GEORGE, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2021 ALONG WITH M.A.C.A.NO.1779/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _M.A.C.A.No.1779 of 2013 & M.A.C.A.No.3846 of 2016_ 4 ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A.No.1779 of 2013 and M.A.C.A.No.3846 of 2016_ ================================ _Dated this the 12[th] day of November, 2021_ ## _**J U D G M E N T**_ M.A.C.A.No.3846/2016 is an appeal at the instance of the original petitioners in the O.P(MV).No.1057/2007 on the file of the Motor Accidents Claims Tribunal, Thalassery; whereas M.A.C.A.No.1779/2013 is an appeal at the instance of the original 4th respondent, insurance company. In the appeal filed by the petitioners, quantum is disputed. In the appeal filed by the company, the specific contention is that the insurance policy was not in the name of the R.C owner. Therefore, liability could not be fastened on the company. 2. Brief facts: On 21.07.2007 at or about 8.45 p.m while the deceased was proceeding towards 7th Mile with a view to borrow money to _M.A.C.A.No.1779 of 2013 & M.A.C.A.No.3846 of 2016_ 5 meet the hospital expenditure of his mother who was admitted in Medical College, Pariyaram, a Lorry bearing registration No.KL.13J/6463 driven by the 1st respondent came from Taliparamba side hit on the backside of the deceased and the lorry run over his head and chest, causing crush injuries and he succumbed to the injuries on the spot. Soon after the accident the deceased was carried to Medical College Hospital, Pariyaram and he was declared dead by the doctor. The accident occurred solely due to the rash and negligent driving on the part of R1, the driver of the offending lorry. R1 had taken the lorry through the road margin in a high speed without caring the pedestrians and that paved the way to the incident. The petitioners, who are the dependents of the deceased, are in distress after his demise. The deceased was a bachelor and he used to spend his entire income for the petitioners. Due to his demise, the petitioners lost their company and love and affection. The deceased was very active and enthusiastic person and he was an expert rubber tapper earning Rs.300/- per day and the petitioners claimed total _M.A.C.A.No.1779 of 2013 & M.A.C.A.No.3846 of 2016_ 6 compensation of R.12,00,000- from the respondents. 3. The 4th respondent filed written statement and admitted the policy while disputing the liability. 4. Heard both sides. First of all, the quantum of compensation to be addressed. It is submitted by the learned counsel for the appellants that the deceased, who was aged 25 years at the time of accident, was doing the work of rubber tapping and was earning Rs.9,000/- per month. But the Tribunal fixed it at Rs.5,000/-. According to the learned counsel for the appellants, Exts.A5 toA8 documents produced on the side of the appellants would substantiate the fact that the deceased was doing the job of rubber tapping and he was getting Rs.9,000/- per month. In order to prove Ext.A6, PW2 also was examined. 5. It is submitted by the learned counsel for the insurance company that the monthly income required to be refixed following the ratio in [2011 (13) SCC 236], _**Ramachandrappa v. Manager, Royal Sundaram Alliance**_ and [AIR 2014 SC 1052 : _M.A.C.A.No.1779 of 2013 & M.A.C.A.No.3846 of 2016_ 7 (2014) 2 SCC 735], _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd.,**_ and nothing more is liable to be granted. 6. On reading the documents produced along with the evidence of PW1 and PW2, I am of the view that Rs.7,000/- can be fixed as the monthly income in this case. 40% is to be added towards future prospects as per the ratio in [(2017) 16 SCC 680], _**National Insurance Company Limited v. Pranay Sethi & Ors.**_ Thus monthly income would be : 7000 + 2800 (7000 X 40% )= Rs.9,800/-. Hence the loss of dependency is : 9800 X 12 X 18 X ½ = 10,58,400/-, out of which Rs.5,07,000/- was granted by the Tribunal. Hence **Rs.5,51,400/- more** is granted under the head . **loss of dependency** 7. It is seen that towards **loss of estate** , only Rs.5,000/- is granted and **Rs.10,000/- more** is granted following the ratio in _**Pranay Sethi**_ 's case ( _supra_ ). Similarly, Rs.10,000/- alone is granted under the head **funeral expenses,** following the ratio in _**Pranay Sethi**_ 's case ( _supra_ ), **Rs.5,000/- more** is granted. _M.A.C.A.No.1779 of 2013 & M.A.C.A.No.3846 of 2016_ 8 8. It is pointed out by the learned counsel for the insurance company that Rs.10,000/- under the head pain and sufferings and Rs.60,000/- under the head loss of love and affection were granted by the Tribunal and the same are impermissible following the ratio in [AIR 2020 SC 3076], _**United**_ _**India Insurance Co. Ltd. v. Satinder Kaur.**_ This submission is correct. Therefore, **Rs.70,000/-** is **reduced** . 9. Coming to the challenge raised by the insurance company disputing the liability on the ground that insurance certificate was issued not in favour of the R.C owner at the time of the accident, I am of the view that since the company admitted the policy which was valid at the time of the accident and the same would run with the vehicle, there is no reason either to grant exoneration from liability or recovery right for the reason that the company was not informed about the transfer of the vehicle in favour of R3 and hence the said contention stands repelled and thus M.A.C.A.No.1779 of 2013 deserves dismissal. 10. In the result, M.A.C.A.No.1779/2013 at the instance _M.A.C.A.No.1779 of 2013 & M.A.C.A.No.3846 of 2016_ 9 of the insurance company stands dismissed. M.A.C.A.No.3846/2016 stands allowed in part. It is held that the appellants/petitioners are entitled to get Rs.4,96,400/(Rupees Four lakh ninety six thousand four hundred only) as enhanced compensation and the award impugned is modified as above with the same rate of interest granted by the Tribunal from the date of petition till the date of deposit or realisation excluding the period of 1033 days in filing this appeal as ordered in the order dated 22.09.2021 in C.M.Appl.No.1/2016 (C.M.Appl.No.4459 of 2016) in M.A.C.A.No.3846 of 2016. The insurance company is directed to deposit the same in the name of the appellants in the ratio fixed by the Tribunal within two months from today and the appellants are at liberty to release the same, on deposit. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_