M.A.C.A. No. 3038 of 2016

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 21[ST] DAY OF MAY 2024 / 31ST VAISAKHA, 1946 ``` ## `MACA NO.3038 OF 2016` ``` AGAINST THE AWARD DATED 22.06.2016 IN OP(MV) NO.670 OF 2009 OF ADDITIONAL MOTOR ACCIDENTS ``` ``` CLAIMS TRIBUNAL-III, PATHANAMTHITTA ``` ## `APPELLANT/3RD RESPONDENT:` ``` THE BRANCH MANAGER, I.C.I.C.I LOMBARD GENERAL INSURANCE CO. LTD. PATHANAMTHITTA.P.O,REPRESENTED BY ITS LEGAL MANAGER,ICICI LOMBARD GENERAL INSURANCE CO,KANNANKERY ESTATE,3RD FLOOR,SHANMUGHAM ROAD,MARINE DRIVE,KOCHI-682031. ``` ``` BY ADV. SRI.LATHEESH SEBASTIAN ``` ## `RESPONDENTS/PETITIONERS & RESPONDENTS 1 AND 2:` - `1 SAJI K.JOY, S/O.K.E.JOYKUTTY,AGED 50 YEARS, CHANGAYIL HOUSE,AIRAVON.P.O,KONNI,PATHANAMTHITTA DISTRICT-689690.` - `2 SHEEJA SAJI, W/O.SAJI K.JOY,AGED 46 YEARS, CHANGAYIL HOUSE,AIRAVON.P.O,KONNI,PATHANAMTHITTA DISTRICT-689690.` - `3 HIBA MARIAM SAJI, AGED 9 YEARS, D/O.SAJI.K.JOY,CHANGAYIL HOUSE,AIRAVON.P.O,KONNI,PATHANAMTHITTA DISTRICT,MINOR,REPRESENTED BY FATHER AND NATURAL GUARDIAN,SAJI.K.JOY, DO... DO... DO... PIN-689690.` ``` 4KHALID.B., S/O.BABAKANNU RAWTHER, THOTTUMKARA VEEDU,KUMMANNOOR.P.O,K0NNI,PATHANAMTHITTA-689691. ``` - `*5 JIJUMON.T.SAMUEL (DELETED) THENGUVILA PUTHEN VEEDU,POOVANKUZHY,KOODAL.P.O,PATHANAMTHITTA-689693. *RESPONDENT NO.5 IS DELETED FROM PARTY ARRAY AS PER ORDER DATED 19/02/2020 IN IA-1/19 IN MACA-3038/16)` ``` R1 AND R2 BY ADVS.SRI.U.M.HASSAN SMT.S.LEKHA SRI.NAGARAJ NARAYANAN SRI.PRATHAP PILLAI SMT.P.PARVATHY SRI.RAFEEK. V.K. SRI.SAIJO HASSAN SRI.VISHNU BHUVANENDRAN ``` ``` R4 BY ADV.SRI.SHANAVAS KHAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2024, THE COURT ON ``` ``` 21.05.2024 DELIVERED THE FOLLOWING: ``` M.A.C.A. No. 3038 of 2016 ## -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 3038 of 2016 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st ] day of May, 2024 ## **JUDGMENT** The insurer of an autorickshaw bearing Registration No.KL03-F-6483 is the appellant herein challenging the quantum of compensation stood awarded by the Tribunal in favour of the petitioners who are legal representatives of a minor named Alan Eapen Saji, who succumbed to the injuries sustained in a motor accident by an award passed on 22.06.2016 in O.P.(MV) No.670/2009 by Additional Motor Accidents Claims Tribunal-III, Pathanamthitta (for short ‘the Tribunal’). 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 and 3 in accordance with their status in the Original Petition. 3. Averments of the petitioners are to the following effect: M.A.C.A. No. 3038 of 2016 -:3:- On 11.04.2009 at about 8:40 a.m. while a minor boy was travelling in an autorickshaw bearing Registration No.KL-03-G/527 through Konni-attachakkal public road, another autorickshaw bearing Registration No.KL-03-F-6483 hit the same at Konnithazhammuri and thereby he sustained serious injuries. He was rushed to Jacob Memorial Hospital, Konni and therefrom to Pushpagiri Medical College Hospital, Konni but he succumbed to the injuries on 13.04.2009. Alleging negligence on the driver of the autorickshaw bearing Registration No.KL-03-F-6483 and claiming a sum of `15,00,000/- as compensation, the above Original Petition was filed. The driver, the owner and the insurer of the offending vehicle were arrayed respectively as respondents 1 to 3 in the Original Petition. 4. Respondents 1 and 2 did not contest the Original Petition. 3[rd] respondent after entering appearance filed a written statement admitting issuance of a valid policy for the autorickshaw bearing Registration No.KL-03-F-6483, covering the date of the motor accident. It was contended that the 1[st] respondent was not having a driving licence and by permitting M.A.C.A. No. 3038 of 2016 -:4:- him to drive the vehicle, the insured has violated the policy conditions. Challenge was also raised against the quantum claimed as compensation, being excessive. 5. Before the Tribunal, Exts.A1 to A10 were marked in evidence by the petitioners and Exts.B1 and B2, by the 3[rd] respondent. The Tribunal found on the basis of the evidence that the motor accident was caused due to the rash and negligent driving by the 1[st] respondent. Petitioners being the legal representatives were found entitled to get compensation for the death of the minor boy in the motor accident. A sum of `17,12,000/- was arrived at as the compensation payable, with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of deposit and proportionate costs. 6. According to the learned counsel for the 3[rd] respondent, the compensation stood awarded by the Tribunal is excessive and therefore interference is required. According to him, the Tribunal went wrong in fixing `5,000/- as the monthly income of the deceased notionally and adding 50% to that in M.A.C.A. No. 3038 of 2016 -:5:- consideration of loss of future prospects. According to him, the Tribunal failed to deduct any amount in consideration of the personal expenses the deceased would have met with, had he been alive. According to him, the Tribunal went wrong in awarding `13,50,000/- as compensation towards loss of dependency and `3,00,000/- towards loss of love and affection. 1[st] respondent was contended as not possessing a badge for driving the offending vehicle which is a transport vehicle and therefore the 3[rd] respondent is not liable to indemnify the insured. He seeks for grant of recovery right to the 3[rd] respondent from the insured. ## 7. In **Ramachandran V. Unnikrishnan [2006 (2) KLT** **SN 15 CN 20]** , it was held by this Court that mere absence of a badge to drive a commercial vehicle is not sufficient, but it must be proved that the motor accident was occurred for that reason and then alone, the insurance company can get exoneration from the liability for violation of policy conditions. In the case on hand, apart from raising a contention regarding lack of badge, steps were not taken by the 3[rd] respondent to prove that the M.A.C.A. No. 3038 of 2016 -:6:- motor accident was resulted from driving of the autorickshaw without authorisation. Therefore, contention of the learned counsel in that regard being devoid of merits, is discarded. 8. The learned counsel for the petitioners relied on **Mekala V. Malathi M. and Another [(2014) 11 SCC 178]** and **Kajal V. Jagdish Chand and Others [(2020) 4 SCC 413]** to fortify his argument that the monthly income fixed by the Tribunal notionally as `5,000/-, is a just and reasonable sum and therefore interference is not required. In the cases referred to, the compensation payable towards personal injuries sustained by the victim are considered. It was held by the Apex Court in the cases referred to that the fixation of monthly income in one case cannot be adopted to another, since it is dependent on various factors in each case. 9. In the case on hand, the deceased was aged 9 years. The learned counsel for the petitioners canvassed on the basis of Exts.A8 to 10 that the deceased has passed scholarship examination conducted by PCM Pvt.Ltd. Apart from the above, the petitioners failed to produce any documents to establish the M.A.C.A. No. 3038 of 2016 -:7:- brilliance of the deceased either academically or in co-curricular activities. 10. In the case on hand, compensation was sought for death of a minor boy aged 9 years. The Apex Court has held in **Heshan Gopal and another v. Lala and others [(2014) 1 SCC 244]** that in so far as the children of age group 10-15 are concerned, contribution of the deceased to the family can be taken as `24,000/- per annum. Therefore, this Court finds it reasonable to fix `24,000/- as the annual income of the deceased in the case on hand. The fixation of the monthly income as `5,000/- is thus liable to be reversed. The victim of the motor accident was at his age of 9 years and therefore he undoubtedly has suffered loss of future prospects, in view of his untimely death in the motor accident. In view of **National Insurance** **Company Limited V. Pranay Sethi and Ors. [2017** **(4) KLT 662 (SC)]** , the victim being aged below 40 years, 40% is liable to be added towards future prospects. Accordingly `33,600/-( [(`24,000/- + (`24,000x40/100)] is arrived at. M.A.C.A. No. 3038 of 2016 -:8:- When compensation for loss of dependency is calculated on the basis of the modified factors, `5,04,000/- ( `33,600/- x15) is arrived at. It is noticed from the impugned award that the Tribunal failed to award compensation towards loss of consortium, though the petitioners include parents of the deceased. Though an appeal was not filed by the petitioners, the entitlement of the parents for getting compensation towards loss of consortium being settled by the Constitution Bench of the Apex Court as `40,000/- in **Pranay Sethi** supra, this Court is inclined to award `80,000/- (`40,000/- x2) in favour of the petitioners. Similarly, the Tribunal also failed to award compensation in accordance with the direction issued by the Constitution Bench of the Apex Court in **Pranay Sethi** supra. The Tribunal has awarded an excess sum of `25,000/- towards funeral expenses and `10,000/- only towards loss of estate. In the above context, this Court is inclined to award `15,000/- each as compensation also under the respective heads. Deceased was survived by a sibling, who was his sister. In view of the factum that the sibling lost her sole companion in the motor accident, M.A.C.A. No. 3038 of 2016 -:9:- this Court is also inclined to award `20,000/- as compensation towards loss of love and affection. For `25,000/- and `3,00,000/- stood awarded by the Tribunal towards pain and sufferings and loss of love and affection, petitioners 1 and 2 are disentitled to. Therefore it is discarded. `2,000/- stood awarded by the Tribunal towards transportation expenses is maintained. The compensation payable to the petitioners is modified accordingly. 11. Thus the petitioners will get `6,36,000/- (Rupees Six Lakhs thirty six thousand only) ( `80,000/- + `15,000/- + `15,000/- + `20,000/- +`2,000/- `5,04,000/-) instead of `17,12,000/- stood awarded by the Tribunal. Though it was contended that the 1[st] respondent was not holding a badge for driving the vehicle, he has produced and marked Ext.B1 in evidence, which would show that a badge was possessed by him and it was valid from 23.04.2009 till 22.04.2012. The motor accident being occurred on 11.04.2009, the 1[st] respondent can be taken as holding a valid badge on the strength of Ext.B1. Admittedly the offending vehicle was insured with a valid policy M.A.C.A. No. 3038 of 2016 -:10:- issued by the 3[rd] respondent. Therefore, the 3[rd] respondent is liable to indemnify the insured as far as the compensation payable is concerned. 12. In the result, the appeal is allowed. The petitioners are entitled to get `6,36,000/- as compensation and that amount will carry interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent shall deposit the said amount in favour of the petitioners with interest at the rate of 8% alongwith proportionate costs. The disbursal of the amount shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. MACA stands allowed in part accordingly. Sd/- **MARY JOSEPH,** **JUDGE.** MJL