M.A.C.A. No. 236 of 2017

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ## `MACA NO. 236 OF 2017` ``` AGAINST THE AWARD DATED 15.04.2016 IN OP(MV) NO.873 OF 2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY ``` ## `APPELLANT/2ND RESPONDENT IN THE OP:` ``` THE ORIENTAL INSURANCE CO. LTD. THALIPARAMBA, REPRESENTED BY ITS AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI-18 ``` ``` BY ADV SRI.A.R.GEORGE ``` ## `RESPONDENTS/CLAIMANTS & 1ST RESPONDENT IN THE OP:` ``` 1RAKHEEBA.P., W/O.MAMMAD KUNHI, POYYIL PUTHIYA PURAYIL, P.O.PERUVALATHUPARAMBA, IRIKKUR, KANNUR- 670593. 2RISHAN.P.(MINOR), S/O.MAMMAD KUNHI, POYYIL PUTHIYA PURAYIL, P.O.PERUVALATHUPARAMBA, IRIKKUR, KANNUR 670593. 3RANIYA (MINOR), D/O.MAMMAD KUNHI, POYYIL PUTHIYA PURAYIL, P.O.PERUVALATHUPARAMBA, IRIKKUR, KANNUR-670593. 4OV ASSAINAR,F/O.MAMMAD KUNHI, KEEPPATTU, PUTHIYAPURAYIL HOUSE, GOPALAN PEEDIKA, P.O.KAYARALAM, KANNUR -670602. 5MARIYAM, M/O.MAMMAD KUNHI, KEEPPATTU, PUTHIYAPURAYIL HOUSE, GOPALAN PEEDIKA, P.O.KAYARALAM, KANNUR-670602. 6T.M.ABDULLA,S/O.HAREES, MULUKUMPURATH HOUSE, P.O.MULLAKKODI, MAYYIL, TALIPARAMBA, KANNUR DISTRICT-670602. ``` ``` (RESPONDENTS 2 & 3 MINORS REPRESENTED BY THEIR MOTHER AND NEXT FRIEND RAKHEEBA P-THE FIRST RESPONDENT) ``` ``` BY ADV SRI.C.K.SREEJITH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2024, ``` ``` THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.236 of 2017 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 08[th] day of February, 2024** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Thalassery (for short ‘the Tribunal’) on 15.04.2016 in OP (MV)No.873/2012. Appellant is the 2[nd] respondent before the Tribunal, who is none other than the insurer of the offending vehicle. Challenge was raised against the impugned award mainly for two reasons. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 and 2 in accordance with their status before the Tribunal. 3. The reason firstly was that the driver of the offending vehicle which is a Jeep bearing Registration No.KL13A/2572 was not holding a badge to drive the same at the relevant time of the motor accident and therefore there is violation of a policy condition by the insured. The argument secondly advanced was that the compensation stood awarded ``` M.A.C.A.No.236 of 2017 ``` ``` 3 ``` by the Tribunal under various heads are excessive and interference is required to modify those. 4. The facts of the case relevant for disposal of the appeal are summarised hereinbelow. At about 10:30 a.m. on 14.08.2012, while Mr.Mammad Kunhi was travelling in a motorcycle, a Jeep bearing Registration No.KL-13A/2572 driven by the 1[st] respondent in a rash and negligent manner and in overspeed dashed against it and thereby he sustained serious injuries. He was rushed to Koyili Hospital, Kannur for treatment but he succumbed to the injuries while undergoing treatment there. The motor accident was allegedly occurred due to the rash and negligent driving of the jeep bearing Registration No.KL-13A/2572 by it’s driver, who was also it’s owner and arrayed as the 1[st] respondent in the Original Petition. Admittedly the vehicle was insured with the 2[nd] respondent at the relevant point of time. 5. All respondents were served with notice. 1[st] respondent did not turn up to contest the Original Petition and therefore, was declared as ex parte. 2[nd] respondent filed ``` M.A.C.A.No.236 of 2017 ``` ``` 4 ``` written statement admitting insurance coverage for the offending jeep bearing Registration No.KL-13A/2572 as on date of the motor accident. Liability was denied on the ground that the motor accident was occurred solely due to the negligence of Mr.Mammad Kunhi, the victim of the motor accident. Compensation claimed was also disputed for it’s exorbitance. 6. Before the Tribunal, both parties adduced evidence. Exts.A1 to A10 were marked on the side of the petitioners and Exts.B1 to B3 on the side of the 2[nd] respondent. On appreciation of the above evidence the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the jeep bearing Registration No.KL-13A/2572 by it’s driver, who was arrayed as the 1[st] respondent. The Tribunal also found that, on account of the death of Mr.Mammad Kunhi, his wife, children and parents who are the petitioners before the Tribunal, are entitled to get compensation from the respondents. The Tribunal arrived at the quantum of compensation payable as `47,04,200/- and directed the 2[nd] respondent to pay the same alongwith interest ``` M.A.C.A.No.236 of 2017 ``` ``` 5 ``` at the rate of 7% per annum from the date of filing of the Original Petition till the date of realisation. Costs of proceedings was also allowed by the Tribunal in favour of the petitioners. Aggrieved by the quantum of compensation stood awarded by the Tribunal and also the failure of the Tribunal to grant right of recovery of the compensation in favour of the 2[nd] respondent, since the 1[st] respondent has driven the vehicle without a badge, the appeal on hand is filed. 7. The learned counsel conceded that at the relevant time when challenges were raised in the appeal on hand nonpossession of badge was treated as a breach of condition and it on being established by the insurer, recovery right ought to have been ordered by the Tribunal in it’s favour. According to him, a three Judges Bench of the Apex Court in **Mukund Dewangan v. Oriental Insurance Company limited [2017** **(4) KHC 648]** has settled the position of law that a transport vehicle and Omnibus, the gross vehicle weight of which does not exceed 7500 kilograms would be a Light Motor Vehicle and a holder of a driving licence to drive a Light Motor Vehicle as ``` M.A.C.A.No.236 of 2017 ``` ``` 6 ``` provided in Section 10(2) (d) of the Motor Vehicles Act, 1988 (for short ‘the MV Act) is competent to drive a transport vehicle or Omnibus. In the case on hand the vehicle involved being a Jeep coming within the purview of Light Motor Vehicle, the driver does not require a badge to drive it. Therefore, even if the driver drives the vehicle without badge, violation of a policy condition would not be attracted and the insurer cannot claim right of recovery of the compensation amount from the insured, after it being deposited in favour of the petitioner. The learned counsel thus conceded that the challenge raised in that regard is not pressed. 8. 2[nd] challenge was regarding the quantum of compensation stood awarded by the Tribunal. According to the learned counsel, he has no dispute with regard to `20,000/adopted by the Tribunal as monthly income of the deceased. The employment of the deceased as an overseer in a Government Department stands proved by Ext.A9 and therefore, this Court is inclined to maintain the monthly income fixed by the Tribunal. It is pointed out that 50% is added by ``` M.A.C.A.No.236 of 2017 ``` ``` 7 ``` the Tribunal to the monthly income in consideration of loss of future prospects, 16 adopted as the multiplier, 10% deducted therefrom in consideration of the Income Tax payable, and 1/5[th] deducted in consideration of the expenditure the deceased would have spent for his livelihood, had he been alive. According to him, the Tribunal went wrong in deducting 1/5[th] instead of 1/3[rd] in consideration of the personal expenditure of the deceased. 9. The learned counsel pointed out further that excess sums than that was payable was awarded by the Tribunal as compensation towards funeral expenses and loss of estate. According to him, the entitlement of the petitioners was only for `15,000/- each under the above heads. It is pointed out by the learned counsel further that petitioners are disentitled to get `25,000/- and `3,00,000/- stood awarded by the Tribunal respectively towards pain and suffering and loss of love and affection. It is pointed out furthermore that `1,00,000/stood awarded by the Tribunal towards loss of consortium is less than what they are entitled to get legally. ``` M.A.C.A.No.236 of 2017 ``` ``` 8 ``` 10. It is contended by the learned counsel that petitioners 4 and 5 are not entitled to get compensation towards loss of consortium, since they are residing separately. Compensation for loss of consortium is payable to them, being parents of the deceased and also for the loss of love and care caused to them, on account of the untimely death of their son. It is not something to be denied to them for the reason that they are staying away from him at the relevant time of his death in the motor accident. Therefore, the argument advanced by the learned counsel in that regard is repelled and this Court awards `40,000/- each to the petitioners. Thus, `2,00,000/- ( `40,000/- x 5) is payable towards loss of consortium. 11. `15,000/- each is awarded as compensation towards loss of estate and funeral expenses. As rightly pointed out petitioners being legal representatives of the deceased victim of a motor accident, are not entitled to get `25,000/- and `3,00,000/- stood awarded by the Tribunal towards pain and ``` M.A.C.A.No.236 of 2017 ``` ``` 9 ``` sufferings and loss of love and affection. Therefore those are discarded. 12. When compensation for loss of dependency is calculated afresh, `34,56,000/[(`20,000/- - 10% of `20,000/-) + 50% of `18,000/-] x 12 x 16 x 2/3] is arrived at. Interest rate fixed by the Tribunal being low, is refixed as 7.5%. 13. In the above manner of calculation, having due regard to the contentions raised, petitioners will get only `36,93,000/- (`34,56,000/- + `15,000/- + `15,000/- + `2,00,000/- + `5,000/- + `2,000/-) (Rupees thirty six lakhs ninety three thousand only) instead of `47,04,200/- stood awarded by the Tribunal and that amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. Petitioners are also entitled to get proportionate costs. 2[nd] respondent shall pay modified compensation with interest and costs, within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the amount shall ``` M.A.C.A.No.236 of 2017 ``` ``` 10 ``` be in accordance with the directions issued by the Tribunal in the impugned award as well as the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. 14. It is submitted by the learned counsel that 60% of the award amount has already been deposited. On being convinced of, the Tribunal shall adjust the same in the sum payable. Appeal is allowed accordingly. Sd/- **MARY JOSEPH JUDGE** MJL