MACA No. 327 of 2006 (A) & MACA No. 2319 of 2007, O.P(MV) 263/1999, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **WEDNESDAY, THE 14TH DAY OF MARCH 2012/24TH PHALGUNA 1933** **MACA.No. 327 of 2006 (A)** **-------------------------------------OPMV.263/1999 of M.A.C.T., PALAKKAD** **APPELLANTS/PETITIONERS IN O.P(MV):---------------------------------------------------------** **1. THANKAMANI, W/O.LATE PONNUCHAMI, AGED 44 YEARS, RESIDING AT PULIYAMTHONI, KIZHAKKEKALAM, MUTHALAMADA.P.O, CHITTUR TALUK, PALAKKAD DISTRICT.** **2. VASANTHA, D/O.LATE PONNUCHAMMI, AGED 26 YEARS, RESIDING AT PULIYAMTHONI, KIZHAKKEKALAM, MUTHALAMADA.P.O, CHITTUR TALUK, PALAKKAD DISTRICT.** **3. SIVADASAN, S/O.LATE PONNUCHAMI, AGED 24 YEARS, RESIDING AT PULIYAMTHONI, KIZHAKKEKALAM, MUTHALAMADA.P.O, CHITTUR TALUK, PALAKKAD DISTRICT.** **4. DEVADASAN, S/O.LATE PONNUCHAMI, AGED 26 YEARS, RESIDING AT PULIYAMTHONI, KIZHAKKEKALAM, MUTHALAMADA.P.O, CHITTUR TALUK, PALAKKAD DISTRICT.** **5. HARIDASAN, S/O.LATE PONNUCHAMI,** - **AGED 18 YEARS, RESIDING AT PULIYAMTHONI, KIZHAKKEKALAM, MUTHALAMADA.P.O, CHITTUR TALUK, PALAKKAD DISTRICT.** **6. VALSALA, D/O.LATE PONNUCHAMI, AGED 14 YEARS, RESIDING AT PULIYAMTHONI KIZHAKKEKALAM, MUTHALAMADA.P.O, CHITTUR TALUK, PALAKKAD DISTRICT., (MINOR REPRESENTED BY N MOTHER-1ST APPELLANT).** **MG** **(CONTD........)** **-2-** **MACA.No. 327 of 2006 (A)** ## **--------------------------------------** ## **7. KANDANKALI, W/O.PAZHANI,** **AGED 18 YEARS, RESIDING AT PULIYAMTHONI, KIZHAKKEKALAM, MUTHALAMADA.P.O, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.BINOY VASUDEVAN** **RESPONDENTS/RESPONDENTS 1 TO 4 IN O.P(MV):-** **-------------------------------------------------------------------------** **1. RAJAMANI @ RAMANKUTTY, S/O.VELLA, RESIDING AT PATHUCHIRA, POTHAMPADAM,** **MUTHALAMADA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.** **2. A.HYDERALI, S/O.ABDUL RAZACK,** - **6/81, KAMBRATHCHALLA, MUTHALAMADA VILLAGE, CHITTUR TALUK, PALAKKAD.** **3. THE NEW INDIA ASSURANCE COMPANY LTD., M.A.LINE, T.B.ROAD, PALAKKAD.** **4. C.N.SAHADEVAN, S/O.NARAYANAN, KALLAMPOTTAKALAM, KAMBILICHUNGAM, NALLEPPULLY, PALAKKAD.** **BY ADV. SRI.A.R.GANGADAS BY ADV. SRI.MATHEWS JACOB (SR.) BY ADV. SRI.P.JACOB MATHEW BY ADV. SRI.SAJEEV KUMAR K.GOPAL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2012, ALONG WITH MACA. 2319/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MG** ## **PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ** --------------------------------------------MACA No.327 of 2006 & MACA No.2319 of 2007 --------------------------------------------Dated this the 14[th] day of March, 2012 ## **JUDGMENT** ## _**Ramakrishna Pillai, J**_ Under challenge in these appeals, is the award passed by the Motor Accidents Claims Tribunal, Palakkad, in O.P(MV) No.263/99. 2. One Ponnuchami, of whom the appellants in MACA No.327/2006 are the legal heirs met with his death in a road traffic accident occurred on 13/11/1998. 3. Allegedly, the deceased was travelling by a tractor being seated on its mud guard. As a result of the over speed, the deceased was thrown down and the vehicle ran over him causing fatal injuries to which he succumbed on the way to hospital. 4. Against the claim of Rs.4,04,300/-, the learned Tribunal awarded a sum of Rs.2,34,800/-. Though the vehicle was covered by a valid policy issued by the New Indian Assurance Company Ltd, (third respondent in MACA No.327/06 and eighth respondent in MACA _**M.A.C.A Nos.327/06 & 2319/07**_ -:2:- No.2319/07), the learned Tribunal exonerated them from paying the compensation, finding that the deceased was a gratuitous passenger in the tractor. 5. MACA No.327/06 was preferred by the claimants, challenging the adequacy of compensation as well as the finding that the deceased was a gratuitous passenger thereby exonerating the insurer from their liability to pay the compensation. 6. MACA No.2319/07 is filed by the owner of the tractor involved in the accident, on the ground that even prior to the accident, he had sold the vehicle to a third party and this was not taken into by the learned Tribunal while passing the award against him to pay compensation to the claimants. 7. We have heard the learned counsel for the appellants and the learned counsel appearing for the respondents. We have also perused the impugned award. 8. For the convenience of discussion, the parties can be referred to as they are arrayed in the original petition. ## _**M.A.C.A Nos.327/06 & 2319/07**_ -:3:- 9. According to the claimants, the deceased Ponnuchami was travelling by the tractor, involved in the accident after unloading sand from the trailer attached to the tractor, tt was alleged that due to the recklessness of the driver, the deceased was thrown down and the vehicle ran over him resulting in his death. The insurance company while admitting the policy, contended that the policy did not extend to gratuitous passengers carried in the vehicle. So they denied the liability of paying the compensation. 10. During the course of argument, the learned senior counsel appearing for the insurance company invited our attention to the contents of the copy of the policy, which was made available to us for perusal. The entries in the policy would reveal that it was an Act only Policy and that the vehicle insured was a goods carrying vehicle (a tractor with trailer). There need not be any hesitation to hold that the vehicle involved in the accident was a goods carrier, in the light of the contents of the policy. 11. Our attention was also invited to Ext.A1 F.I.R in Crime No.91/1998 of the Kollamkode Police. A copy of the same was made available to us for perusal. The F.I.R was lodged by one Kunju who had _**M.A.C.A Nos.327/06 & 2319/07**_ -:4:- occasion to witness the incident. What was stated in the F. I. Statement is that the deceased Ponnuchami was sitting on the mud guard of the tractor at the ill fated time. It is also revealed from the F.I.Statement that no goods were being carried out in the trailer at the time of the accident. 12. The argument advanced by the learned counsel for the claimants was that the deceased was returning after unloading the sand at a particular destination. However, it is relevant to note that there is absolutely no evidence on record to show that the deceased was under a contract of employment with the owner of the sand that was carried in the vehicle or that he was the authorised representative of that person. 13. In the decision reported in _**New India Assurance Company ltd.**_ _**v. Asha Rani and Others (2003 (1) KLT 165 (SC))**_ , wherein the earlier decision of the Apex Court in **New India Assurance Company Ltd. v. India Assurance Company v. Satpal Singh, (2000 (1) KLT 95 (SC))** was overruled, it was observed that:- “In view of the changes in the relevant provision in the 1988 Act, vis-a-vis, the 1939 Act we are of the opinion that the meaning of the words “any person” must also be attributed having regard to the context in which they have been used, i.e. “third ## _**M.A.C.A Nos.327/06 & 2319/07**_ -:5:- party”. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provision there of do not enjoin any statutory liability on the owner of the vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insured would not be liable therefore.” 14. However, the benefit of the policy issued by the insurer in respect of the goods vehicle will be extended to the owner or the authorised representatives of the goods that is being carried in the vehicle. In this case, the deceased was not the owner of the sand said to have been unloaded prior to the accident. He was also not the driver of the vehicle. He was only a passenger travelling on the mud guard of the tractor. It is evident from the Act only Policy that the registered owner has paid premium to cover third parties, the driver, and third party property damage. No premium was paid for gratuitous passengers. 15. Hence, the finding of the learned Tribunal that the insurance company could not have been made liable to pay compensation to the claimants, is only to be upheld in view of the decision of the Apex Court in _**Asha Rani's case (cited supra),**_ as there is nothing on record to show _**M.A.C.A Nos.327/06 & 2319/07**_ -:6:- that the deceased was the authorised representative of the owner of the sand said to have unloaded at the destination, which is prior to the accident. 16. Coming to the question of compensation, we notice that the deceased was aged 42 years at the time of the accident. He left behind his widow aged 38 years and children aged 19 years, 18 years, 15 years, 12 years and twins aged 10 years. Admittedly, the deceased was a coolie. Though the claimants alleged that that he was earning a sum of Rs.3,000/-, the learned Tribunal fixed the notional income of the deceased at Rs.1,800/-, which according to the learned counsel for the claimants is too low. 17. As the accident was of the year 1998, and as the deceased was aged 42 years, we fix the notional income of the deceased at Rs.2,500/per month on the presumption that he might have earned atleast at that rate, by engaging himself in any job. The correct multiplier that has to be adopted as per the principle laid down by the Supreme Court in _**Sarala Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ is 14. One fifth of the amount has to be deducted in consideration to the ## _**M.A.C.A Nos.327/06 & 2319/07**_ -:7:- expenses which the deceased would have incurred, had he been alive. When the compensation for loss of dependency is recalculated as above, it will come to Rs.3,36,000/-. The learned Tribunal has awarded only a sum of Rs.2,16,000/- as compensation for loss of dependency. Hence, the claimants become entitled to get an additional sum of Rs.1,20,000/- as compensation for loss of dependency. 18. The learned Tribunal has awarded a sum of Rs.2,000/- towards funeral expenses, which according to the learned counsel for the claimants is too low. We award an additional sum of Rs.3,000/- towards funeral expenses. Towards compensation for pain and suffering, only a sum of Rs.5,000/- was awarded by the learned Tribunal. We award to the claimants an additional sum of Rs.5,000/- as compensation for pain and suffering. Towards compensation for love and affection only a sum of Rs.15,000/- was awarded. So, we award an additional sum of Rs.10,000/as compensation towards love and affection. Towards loss of estate only a sum of Rs.2,500/- was awarded by the learned Tribunal. We are of the view that the said amount is inadequate. Hence, we award to the claimants an additional sum of Rs.2,500/- as compensation towards loss of estate. ## _**M.A.C.A Nos.327/06 & 2319/07**_ -:8:- 19. Thus in total, the claimants become eligible for **Rs.1,40,500/-** , over and above what was awarded by the learned Tribunal. 20. The registered owner, who filed MACA No.2319/2007 contended that though he was the owner of the tractor involved in the accident, he had sold the vehicle on 19/01/1996 to one Jnanasekharan, who in turn had transferred the vehicle to one Hydrali, who is the seventh respondent. As the appellant failed to prove that the vehicle has been transferred prior to the accident, he was burdened with responsibility of paying the compensation to the claimants. 21. It was submitted by the learned counsel appearing for the registered owner that the transfer has been endorsed in the R.C. Particulars. A copy of the extract of the R.C. Particulars was produced before this Court. As the registered owner could not establish that the vehicle has been transferred prior to the accident, we are of the definite view that the matter has to be remanded back to the Motor Accidents Claims Tribunal for the limited purpose of affording the registered owner, an opportunity to establish that the vehicle has been transferred prior to the accident. ## _**M.A.C.A Nos.327/06 & 2319/07**_ -:9:- In the result both the appeals are allowed as follows: 1) The compensation awarded by the learned Tribunal is modified and an additional sum of Rs.1,40,500/- is awarded to the claimants, who are the appellants in MACA No.327/2006, over and above what was awarded by the learned Tribunal. The additional amount awarded will carry interest at the same rate specified by the learned Tribunal in its award. 2) The finding of the learned Tribunal exonerating the insurance company from paying the compensation is upheld. 3) The case is remanded back to the learned Tribunal for the limited purpose of answering whether the appellant in MACA No.2319/07, who is the registered owner, is liable to pay compensation after affording him an opportunity to substantiate his case before the Tribunal by adducing further evidence if any, in support of his contention. 4) The learned Tribunal shall pass final award answering the aforesaid question. _**M.A.C.A Nos.327/06 & 2319/07**_ -:10:- 5) The document produced by the appellant in the MACA No.2319/07 shall be returned to him, so that he can produce the same before the Motor Accidents Claims Tribunal. The learned Tribunal shall complete the exercise within a period of two months from the date of appearance of the parties. The appellants shall appear before the Tribunal on 25/04/2012. sd/- **PIUS C. KURIAKOSE JUDGE** sd/- **A. V. RAMAKRISHNA PILLAI JUDGE** //TRUE COPY// P.A TO JUDGE krj