MACA No. 2613/2012: Rajan @ Rajappan & Others v. K. Zakir & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024/2ND PHALGUNA, 1945 MACA NO. 2613 OF 2012** **AGAINST THE ORDER/JUDGMENT DATED 13.09.2012 IN OPMV NO.797 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/PETITIONER:** - **1 RAJAN @ RAJAPPAN, AGED 43 YEARS, S/O.THANKAPPAN, CHARUVILA VEEDU, CHATHANNOOR, KOLLAM DISTRICT.** - **2 PRASANNAN, AGED 41 YEARS, S/O.THANKAPPAN, POYIKA MODYIL PRIYA BHAVANAM, PUNTHALA P.O., KULANADA, ALAPPUZHA DISTRICT.** - **3 SINDHU, AGED 33 YEARS, D/O.THANKAPPAN, NEDUMALA, PERUMMPETTY, KOTTANADU, MALLAPPALLY, PATHANAMTHITTA, NOW RESIDING AT SREE SHYALAM, KARUVATTAMKUZHY, KAREELAKULANGARA, KAYAMKULAM, ALAPPUZHA.** **BY ADV SRI.C.RAJENDRAN** ## **RESPONDENTS/RESPONDENTS:** - **1 K. ZAKIR, 502 PETTADATHU PURAYIDOM, MOOTHAKKARA, KOLLAM-691001.** - **2 JAGANGHEER, S/O.MUHAMMED KANNU, S.S.MANZIL VALATHUNGAL, ERAVIPURAM, NOW RESIDING AT VADAKKE VAZHAPPALLI VEEDU, NEAR ASARIUKKU, VALATHUNGAL, ERAVIPURAM-691011.** - **3 THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD., KHAISI BUILDING BEACH ROAD, KOLLAM-691001.** - **4 ANSARI, S/O.ABDUL KHADER, ARUMPURATHU VEEDU, KAYYALLACKAL, ERAVIPURAM, KOLLAM-691011.** - **5 ASHOK KUMAR, AGED 38 YEARS, S/O.SACHITHANANDAN, PEROOR VADAKKATHIL VEEDU, VALATHUNGAL P.O., ERAVIPURAM VILLAGE, KOLLAM-691011.** **BY ADVS. GEORGE CHERIAN (SR.) LATHA SUSAN CHERIAN K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.2613/2012 : 2 : ## **JUDGMENT** The appellants are the petitioners in OP(MV) No.797/2009 on the files of the Motor Accident Claims Tribunal, Kollam. 2. The said claim petition was submitted by them seeking compensation for the death of one Thankappan due to the injuries sustained to him in a motor accident that occurred on 26.08.2008. The deceased was the father of the appellants. The accident occurred when the deceased was travelling in an autorickshaw driven by the 2[nd] respondent, it hit on an electric post thereby causing serious injuries to the deceased. Even though he was taken to the District Hospital, Kollam, on the way to the hospital he passed away. The deceased was aged 59 years at the time of the accident and was a casual labourer. The claim petition was submitted in such circumstances. 3. The 1[st] respondent filed a written statement contending that, as on the date of the accident, he was not the owner of the autorickshaw. According to him, he sold the vehicle to one Ansari @ Abdul Khader. The 2[nd] respondent filed a written statement disputing the negligence on his part. He denied that he was driving M.A.C.A. No.2613/2012 : 3 : the autorikshaw at the relevant time. The 3[rd] respondent filed a written statement, contending that at the time of the accident, the 1[st] respondent was not the owner of the said vehicle. He sold the vehicle to Ansari on 08.09.2006. It was also averred in the written statement filed by R3 that Ansari Informed the Police that, he sold the vehicle to one Asok Kumar on 24.10.2007. As on the date of the accident, there was no permit for the vehicle and there was no fitness certificate also. The policy was obtained suppressing the lack of fitness certificate and permit for the vehicle. Therefore, they sought for exoneration from the liability. Subsequent to the filing of written statement by the 1[st] and 3[rd] respondents, the appellants/ petitioners impleaded additional 4[th] and 5[th] respondents. The 4[th] respondent was the person to whom the 1[st] respondent claimed to have transferred the said vehicle and the 5[th] respondent was the person to whom the 4[th] respondent has been stated to have transferred the vehicle, before the date of the accident. 4. The evidence in this case consists of the oral testimony of PW1 and Exts.A1 to A10 were marked. No evidence was adduced by the respondents. M.A.C.A. No.2613/2012 : 4 : 5. After the trial, the tribunal came to the conclusion that the vehicle at the relevant time was under the ownership of the 5[th] respondent. It was found that he was using the said vehicle without any valid fitness certificate. Therefore, the insurance company was exonerated from the liability and it was imposed upon the 5[th] respondent. The quantum of compensation was fixed as Rs.2,51,000/- and the said amount was permitted to be recovered from the 5[th] respondent with interest at the rate of 7.5% per annum from the date of petition till realisation and with a cost of Rs.3,000/-. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation and also challenging the exoneration of the insurance company. 6. The first question to be considered is the exoneration of the 3[rd] respondent/Insurance company from the liability. It is to be noted that the only ground on which the tribunal exonerated the 3[rd] respondent insurance company was that, the vehicle was being plied, without any valid fitness certificate or permit for the same. The tribunal also accepted the contention of the 3[rd] respondent that the policy was obtained fraudulently by the owner of the said vehicle. However, even going by the contentions raised by the M.A.C.A. No.2613/2012 : 5 : insurance company it is evident that, the issuance of the policy for the said vehicle is not disputed. Their case is that, the policy was taken on the basis of suppression of materials fact as to the existence of the permit and fitness certificate of the said vehicle. However, under no circumstances, the same could be treated as a valid reason for exonerating the insurance company. In view of the fact that, admittedly an insurance policy has been issued for covering the risk of the vehicle, the insurance company cannot escape from the liability, as far as the third party claim is concerned. Similarly, as far as the suppression of material facts at the instance of the insured is concerned, even though the same could be treated as a valid ground, but the same cannot be taken as a defense as against the claim put forward by a third party. Since there was a valid insurance policy in existence at the time of the accident, the insurance company is bound by the terms and conditions of the policy and therefore, even if the policy was obtained by suppression of material fact that can have impact only upon the inter se liability between the insurer and the insured. Under no circumstances, the said aspect can have any impact on the interest of the third party, a victim of a motor accident, for whose benefit the policy has been M.A.C.A. No.2613/2012 : 6 : issued. Therefore, the proper course that should have been adopted by the tribunal was to direct the insurance company to pay the compensation at the first instance, and then permit the insurance company to recover the said compensation from the owner of the said vehicle. Here without resorting to the same, the insurance company was exonerated from the liability which cannot be treated as a justifiable finding. Accordingly, the said finding is set aside by holding that the primary liability to pay the compensation shall be upon the 3[rd] respondent/insurance company and they shall be entitled to recover the said compensation from the 5[th] respondent once they satisfy the award. 7. The next aspect relates to the quantum of compensation. The deceased claimed to be a casual employee aged 59 years. The tribunal accepted the monthly income as Rs.3,000/-. However, considering the fact that the accident occurred in the year 2008, the monthly income of Rs.3,000/appears to be inadequate. Of course it is true that, there is no evidence to show the monthly income of the deceased. However, when the method of computation of monthly income evolved from the principles laid down by the Hon’ble Supreme Court in M.A.C.A. No.2613/2012 : 7 : **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735]** is taken into consideration, the monthly income for an ordinary worker, for an accident occurred in the year 2008, could be reasonably fixed as Rs.6,500/- (by fixing the basic monthly income as Rs.4,500/- for the year 2004 and by making an addition of Rs.500/- each per year for determining the monthly income of subsequent years). In the absence of any better evidence, the said monthly income can be accepted for assessing the compensation for loss of dependency in this case. 8. It is discernible from the records that, all the appellants, who are the son and daughter of the deceased are grown up and capable of looking after themselves. Therefore, the proper deduction towards personal expenses would be 1/3. Since the age of the deceased was 59, the multiplier applicable was 9. Since the deceased comes within the age group of 50 to 60 years, an addition of 10% is to be made towards future prospects. Thus while reassessing with the above revised criteria, the amount would come to Rs.5,14,800/-[(6500+10%)x12x9x2/3]. The amount already M.A.C.A. No.2613/2012 : 8 : awarded by the tribunal is Rs.2,16,000/- and thus the additional amount comes to Rs.2,98,000/-. 9. The amount awarded by the tribunal towards loss of estate was only Rs.5000/- and in the light of **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** a further sum of Rs.10,000/- is awarded. The amount awarded by the tribunal towards funeral expenses was only Rs.10,000/- and in the light of **Pranay Sethi,** a further sum of Rs.5,000/- is awarded. 10. The next head which requires consideration is the loss of consortium. All the appellants being the children of the deceased are entitled to compensation for loss of consortium at the rate of Rs.40,000/- each thereby making out a total sum of Rs.1,20,000/-. However, the tribunal awarded an amount of Rs.10,000/- towards the loss of love and affection. In **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and others** [2020 (3) KHC 760], it was held that, when compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection. Therefore, Rs.10,000/- awarded towards loss of love and affection is adjusted towards the amount fixed by this Court under the head of loss of consortium. Accordingly, the M.A.C.A. No.2613/2012 : 9 : additional compensation under the head of loss of consortium is determined as Rs.1,10,000/-. Thus the total additional compensation is fixed as Rs.4,23,800/- (298800+10000+ 5000+110000). In the result, the award passed by the Motor Accident Claims Tribunal, Kollam on 13.09.2012 in OP(MV) No.797/2009 is modified to the extent as follows: (i) The finding of the tribunal exonerating the 3[rd] respondent from the liability is set aside. (ii) The 3[rd] respondent is held liable to pay the compensation at the first instance and after satisfaction of the award, the 3[rd] respondent shall be entitled to recover the said compensation from the 5[th] respondent. (iii) The total amount of compensation receivable by the appellant is fixed as Rs.6,74,800/- (Rupees six lakhs seventy four thousand and eight hundred only) (251000+423800) and the 3[rd] respondent shall deposit the said amount along with interest at the rate as ordered by the tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. After such deposit, it shall be open for the 3[rd] respondent M.A.C.A. No.2613/2012 : 10 : to recover the said compensation from the additional 5[th] respondent. However, it is clarified that, as this Court vide order dated 14.12.2021, ordered that the appellants would be disentitled for interest for the period from 14.11.2012 till 14.12.2021, the 3[rd] respondent shall be at liberty to exclude the said period while computing the interest on the compensation payable by them. It is further ordered that the claimants shall furnish the details of the PAN card, Aadhar card and bank details to enable the 3[rd] respondent to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd/