High Court of KeralaSingle Judge2023-02-03Partly allowed; remand for insurance liability ...

MACA No. 2009 of 2009 (Devan Ramachandran, J.)

Case / Petition Number:MACA No. 2009 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2023-02-03
Court Decision / Holding: MACA No. 2009/2009 allowed in part; the Original Petition is remanded to the Tribunal for reconsideration of the Insurance Company’s liability to indemnify the appellants for the compensation ordered by the Court, on condition that the enhanced amount be deposited within one month. Cross Objection No. 3/2010 is allowed, enhancing compensation to Rs. 3,08,500 plus 7% interest from the date of claim. If deposit is made, claimants may receive it from the Tribunal; if not, the Tribunal award stands and may be recovered from the appellants. Bench upholds ultimate reliefs contingent on deposit and possible indemnity by the insurer if found liable.
Final Disposition: Partly allowed; remand for insurance liability reconsideration with deposit condition; enhanced compensation granted to cross objectors; potential insurer liability to be determined on remand; deposit within one month from the judgment date.”} } } } } } } } {} }

Parties to the Case

Appellants / Petitioners

P.V. Nidhish S/o P V Chandran
KTC Automobiles represented by its Managing Director

Respondents

Haneefa
Fathima.K.C.
Nisantkumar P.S.
The New India Assurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• Smt. Smini Jose

Counsels for Respondents

• Smt. Jinu Antony
• Smt. Sreekala A.

Case Synopsis & Summary

This is a Kerala High Court judgment in a cross-appeal arising from an MACT (Motor Accidents Claims Tribunal, Manjeri) award in OP(MV) No. 1536/2003 for the death of a 12-year-old boy in a road accident involving a car owned by the appellants. The Tribunal awarded Rs. 1,65,500 to the claimants (the parents, who filed a cross-objection) and exonerated the insurer on the ground that the vehicle was not insured under the policy. The appellants challenged the exoneration, arguing that the relevant trade certificates and police records indicate the vehicle was covered under Ext. B1 policy via Ext. A6, while Ext. A4 suggests a Hyundai Santro registration; thus the insurer should be liable. The cross objectors contended that compensation under heads like Funeral Expenses, Loss of Estate, and Loss of Dependency was too low and sought higher sums, citing Pranay Sethi (and subsequent judgments) to support enhanced compensation, including Loss of Consortium for the parents. After hearing counsel for the appellants, cross objectors, and the insurer, the learned Judge found merit in the cross objections, enhanced the compensation to Rs. 3,08,500, and remanded the matter to the Tribunal to reconsider insurance liability, conditioned on depositing the enhanced amount within one month. The court also adopted higher notional income guidelines for a child and applied Pranay Sethi’s framework for head of Funeral Expenses and Loss of Estate, with the possibility of indemnity by the insurer if liable.

Provisions of Law Cited

Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that Ext A4 Trade Certificate would show the vehicle (Hyundai Santro) was within insurance coverage under Ext B1; Ext A6 would cover all Light Motor Vehicles, including Hyundai Accent. Ext A1 (FIR), Ext A5 (Charge Sheet) and Ext A3 (release note) relied on by the Tribunal to conclude non-coverage under Ext B1 were misread; the Trade Certificate entries are fact-specific and require re-evaluation by the Tribunal to determine true coverage and insurer liability. They urged remand for correct adjudication of insurance indemnity alongside enhanced compensation if liability is found.

Contentions of Respondents

The respondents supported the Tribunal’s conclusion that Ext A4 did not align with Ext B1 coverage, maintaining exoneration of the insurer. They argued that police records and the Trade Certificate do not conclusively establish policy coverage for the offending Hyundai Accent and urged denial of any liability on the insurer. On cross- objections, they defended the Tribunal’s compensation framework, resisting higher sums and maintaining the Rs. 1,65,500 award unless reduced or otherwise modified by due process.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Pranay Sethi	2017(4) KLT 6621	Positive	Used as the guiding authority to enhance funeral expenses and loss of estate; supports notional enhancement of head components and is applied to the cross-claimants' entitlement.
Kurvan Ansari Alias Kurvan Ali v. Shyam Kishore Murmu	[(2022) SCC 317]	Positive	Adopted the notional income of Rs.25,000 per annum for a child for dependency calculations, aligning with the Supreme Court’s guidance.

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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 DEVAN RAMACHANDRAN FRIDAY, THE 3[RD] DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944 MACA NO. 2009 OF 2009** **AGAINST THE AWARD IN OPMV 1536/2003 DATED 23.04.2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/RESPONDENTS 2 & 4:** - **1 P.V.NIDHISH S/O P V CHANDRAN, KTC AUTOMOBILES, YMCA ROAD, KOZHIKODE DISTRICT.** - **2 KTC AUTOOBILES REPRESENTED BY ITS MANAGING DIRECTOR,, YMCA ROAD, KOZHIKODE.** **BY ADV SRI.DEVAPRASANTH.P.J.** ## **RESPONDENTS/PETITIONERS 1 & 2/RESPONDENTS 1 & 3:** - **1 HANEEFA, AGED 40 YEARS S/O.MAMMUTTY NELLIKKUNNAN, ARAVANKARA,, POOKKOTTUR P.O., MALAPPURAM DISTRICT.** - **2 FATHIMA.K.C. W/O.HANEEFA ARAVANKARA, POOKKOTTUR P.O., MALAPPURAM DISTRICT.** - **3 NISANTHKUMAR.P.S. S/O.NARAYANAN NAIR.P.S., ANTHI NIVAS,, PERUVAYAL P.O., KOZHIKODE DISTRICT.** - **4 THE NEW INDIA ASSURANCE COMPANY LIMITED, SHAFEER COMPLEX, OPP.YMCA,, KANNUR ROAD, CALICUT.** **BY ADVS. SRI.BABU S. NAIR ROY THOMAS (PATHANAMTHITTA) SMT.A.SREEKALA** **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2023, ALONG WITH CO.3/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2009 OF 2009** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 3[RD] DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944** **CO NO. 3 OF 2010** **AGAINST THE AWARD IN OP(MV) NO.1536/2003 DATED 23.04.2009 BY THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,MANJERI** ## **APPELLANT/PETITIONERS:** - **1 HANEEFA, S/O MAMMUTTY NELLIKKUNNAN ARAVANKARA, POOKKOTTUR.P.O., MALAPPURAM DISTRICT.** - **2 FATHIMA.K.C. W/O. HANEEFA ARAVANKARA,POOKKOTTUR.P.O., MALAPPURAM DISTRICT.** **BY ADV SRI.BABU S. NAIR** ## **RESPONDENTS/RESPONDENTS:** - **1 NISANTHKUMAR P.S. S/O. NARAYANN NAIR.P.S., ANTHI NIVAS,, PERUVAYAL.P.O., KOZHIKODE DISTRICT.** - **2 P.V.NIDHISH S/O. P.V.CHANDRAN KTC AUTOMOBILES, YMCA ROAD, KOZHIKODE DISTRICT.** - **3 THE NEW INDIA ASSURANCE CO. LTD. SHAFEER COMPLEX, OPP. YMCA, KANNUR ROAD, CALICUT.** - **4 KTC AUTOMOBILES REPRESENTED BY ITS MANAGING DIRECTOR, YMCA ROAD, KOZHIKODE DISTRICT.** **BY ADVS. SRI.DEVAPRASANTH.P.J. SMT.A.SREEKALA** **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2023, ALONG WITH MACA.2009/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2009 OF 2009** **3** ## **JUDGMENT** The afore appeal is filed by the owners of the vehicle involved in the accident, which killed an young boy of 12 years by name Master Sajid; while, the Cross Objection is filed by his parents. 2. Since the factual circumstances involved in this case are without dispute, I do not require to indite it in detail, except to say that late Master Sajid was knocked down by a Car owned by the appellants and covered by a Trade License issued by the jurisdictional Regional Transport Authority. The child succumbed to the injuries and his parents, namely the Cross Objectors, filed O.P(MV) No. 1536/2003 before the Motor Accidents Claims Tribunal, Manjeri ('Tribunal' for short) seeking an amount of Rs.2,00,000/-, but was awarded only Rs.1,65,500/-. While doing so, the Tribunal exonerated the Insurance Company holding that the offending vehicle was not enjoying the protection of a valid Insurance Policy. 3. The appellants in the appeal impugn that portion of the Award of the Tribunal, exonerating the Insurance Company; while, the Cross Objectors seek that the amounts **MACA NO. 2009 OF 2009** **4** granted be enhanced. 4. I have heard Smt.Smini Jose, appearing for the appellants; Smt.Jinu Antony, appearing for the Cross Objectors; and Smt. Sreekala A. – learned Standing Counsel appearing for the Insurance Company. 5. Smt.Smini Jose, appearing for the appellants, argued that Exts.A4 and A6 - Trade Certificates would show that only the vehicles under the trade name “Hyundai Santro” are covered by the former; while, the offending vehicle, which is a “Hyundai Accent” is covered by the latter. She argued that, in such perspective, the offending vehicle was covered by a valid Insurance Policy, since Ext.B1 luculently show that it takes in Trade Plate No.KL-11 TC 3/98 D, which is the one covered by Ext.A6. She contended that, however, the learned Tribunal went by the documents maintained by the Police, including Ext.A1 - FIR and Ext.A5 Charge Sheet, wherein, it has been incorrectly recorded that the offending vehicle was covered by Ext.A4 - Trade Plate, which is not covered by Ext.B1 policy. She thus prayed that the Award of the Tribunal, to the extent to which it exonerates the Insurance Company, be set aside. **MACA NO. 2009 OF 2009** **5** 6. In response, Smt.Sreekala A. – learned Standing Counsel for the Insurance Company, submitted that the appellants did not have any contra case against Exts.A1 - FIR and A5 - Charge Sheet and therefore, that they cannot now impel the afore contentions before this Court. She asserted that the Tribunal was completely without error in having adopted the entries in these two documents, to hold that the vehicle involved was covered by Ext.A4 - Trade Certificate, which is not one insured under Ext.B1 Policy. She thus prayed that this appeal be dismissed. 7. Coming to the Cross Objections, Smt.Jinu Antony, learned counsel for the Cross Objectors, submitted that the Tribunal erred in granting exiguous compensation under the heads 'Funeral Expenses', 'Loss to Estate' and 'Loss of Dependency'; and that it was alleged on its part to have denied compensation under the head 'Loss of Consortium' to the parents. She thus prayed that the Award, to such extent, be modified and her client be granted the eligible compensation. 8. Smt.Smini Jose and Smt. Sreekala A, appearing for the respondents in the Cross Objections, responded asserting that the compensation awarded by the Tribunal is just and **MACA NO. 2009 OF 2009** **6** commensurate; and thus prayed that it be dismissed. 9. The afore rival submissions of the parties being so recorded, I will first proceed to decide the merits of the appeal, and then that of the Cross Objections. 10. As seen above, the appellants claim that the offending vehicle was covered by Ext.A6 - Trade Certificate and hence within the ambit of Ext.B1 - Insurance Policy. However, the Tribunal, relying upon the entries in Ext.A1 - FIR and Ext.A5 - Charge Sheet, as also Ext.A3 - copy of Kychit under which the vehicle was released from the Police Station, has entered its opinion that the offending vehicle was covered by Ext.A4 - Trade certificate, which does not find mention in Ext.B1 - Insurance Policy. 11. As far as the Trade Certificate of the offending vehicle is concerned, this is a pure matter of fact, because it will solely depend upon the entries in the Trade Certificates issued by the jurisdictional Regional Transport Officer. Prima facie, going by Ext.A4 - Trade Certificate, it covers only a particular class of vehicle, under the brand name “Hyundai Santro”; while Ext.A6 - Trade Certificate appears to cover all 'Light Motor Vehicles'. If this be so and the offending vehicle is not 'Hyundai Santro', it is rather doubtful as to how Ext.A4 **MACA NO. 2009 OF 2009** **7** Trade Certificate would apply to it, as has been found by the Tribunal. However, I do not propose to speak on this in detail because, am of the view that this matter will require to be reconsidered by the Tribunal but, subject to certain conditions, as I will presently propose. 12. Coming to the Cross Objections, I find force in the submission of Smt.Jinu Antony, that the compensation awarded by the Tribunal under various heads are exiguous. In **National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 6621],** the Hon'ble Supreme Court has authorised the grant of Rs.15,000/- each under the heads 'Funeral Expenses' and 'Loss of Estate' and I am certain that the impugned Award deserves to be modified accordingly. As far as 'Loss of Dependency' is concerned, the Tribunal has adopted Rs.15,000/- to be the annual income of the deceased; but this Court, as also the Hon'ble Supreme Court, in various judgments including **Kurvan Ansari Alias Kurvan** **Ali v. Shyam Kishore Murmu [(2022) SCC 317]** has adopted the notional income of Rs.25,000/- per annum for a child, who was involved in an accident in the year 2004. I am certain that same stand can be adopted safely in this case also. **MACA NO. 2009 OF 2009** **8** 13. Further, going by **Pranay Sethi** (Supra) again, the parents are certainly entitled to compensation, under the head 'Loss of Consortium'; of Rs.40,000/- each. 14. In such view, the total compensation eligible to the Cross Objectors would stand revised to Rs.3,08,500/-. The Cross Objectors would be eligible to recover this amount from the respondents, along with interest at the rate of 7% per annum, as fixed by the Tribunal, from the date of claim, till its realization. 15. The compensation being so enhanced, I am certain that a remand of the matter to the Tribunal for the question as to whether the Insurance Company is responsible to indemnify the appellants in MACA No. 2009/2009 can be allowed, only if they deposit the entire amount, as ordered above, within a time frame. I record that this has not been opposed by their learned counsel; but who prayed that, in the event the Tribunal is to find that the Insurance Company to be liable, then, they may be directed to pay this amount to them without any delay. Resultantly; (a) MACA No. 2009/2009 is allowed in part and the Original Petition is remanded to the Tribunal for **MACA NO. 2009 OF 2009** **9** reconsideration of the question whether the Insurance Company is liable to indemnify the appellants therein for the compensation ordered by this Court in favour of the claimants; however on condition that they deposit the said compensation, in terms of (b) below, within a period of one month from the date of reciept of a copy of this judgment. (b) Cross Objection No.3/2010 is allowed, enhancing the compensation to Rs.3,08,500/-, from Rs.1,65,500/- as ordered by the Tribunal, along with interest at the rate of 7% per annum from the date of claim, until its realization. (c) On the appellants in MACA No.2009/2009 depositing the amount as ordered in (a) afore, the claimants will be at liberty to receive it from the Tribunal, on an appropriate application. (d) Alternatively, if the appellants in MACA No.2009/2009 do not deposit the amount, as per (a) above, then the Award of the Tribunal, as modified by this Court, would stand upheld; and the claimants would be at full liberty to recover it from the said appellants, in terms of law. (e) Needless to say, if the appellants in MACA No. 2009/2009 are to deposit the amount as ordered in (a) above, and should the Tribunal eventually finds that the **MACA NO. 2009 OF 2009** **10** Insurance Company is liable to indemnify them, they will be at full liberty to recover the same from the said Company as per law. **Sd/-DEVAN RAMACHANDRAN, JUDGE** lsn **MACA NO. 2009 OF 2009** **11** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **ANNEXURE I. COPY OF THE PARTICULARS OF TRADE CERTIFICATE NO.KL 11 TC 03/1998 ISSUED BY RTO KOZHIKODE DATED 31.03.2009** **ANNEXURE II COPY OF THE AFFIDAVIT FILED BY THE DIVISIONAL MANAGER OF R4 DATED 18.04.2009.** **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.A TO JUDGE** **LSN**