MACA NO. 471 OF 2012 and CO NO. 152 OF 2022

1 **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **WEDNESDAY, THE 3[rd] DAY OF JANUARY 2024 / 13TH POUSHA, 1945** **MACA NO. 471 OF 2012** **AGAINST THE ORDER/JUDGMENT OPMV 607/2008 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, MANJERI** ## **APPELLANTS/PETITIONERS:** 1 K.MOIDEENKUTTY, AGED 54 YEARS. 2 AYSHABEE, AGED 49 YEARS. 3 SAKEENA, AGED 26 YEARS, (ALL ARE RESIDING AT PALAMTHARA HOUSE, P.O.MAMBURAM, THIRURANGADY VIA, MALAPPURAM DISTRICT). BY ADV SRI.P.SAMSUDIN ## **RESPONDENTS/RESPONDENTS:** 1 VIJAYAN KAKKODAN S/O.SANKARAN.K., KAKKODAN HOUSE, MAMBURAM, TIRURANGADI, MALAPPURAM DISTRICT (DRIVER) PIN-676 505. 2 MOHAMMEDKUTTY S/O.KUNHEEDU HAJI, KADENGAL HOUSE, AREETHODE, MAMPAD, A.R.NAGAR, MALAPPURAM DISTRICT (R.C.OWNER) PIN-676 542. 3 NEW INDIA ASSURANCE COMPANY LIMITED U.P.HILL, MALAPPURAM DISTRICT (INSURER) PIN-676 501. BY ADVS. K.P.SUDHEER VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2024, ALONG WITH CO.152/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **WEDNESDAY, THE 3[RD] DAY OF JANUARY 2024 / 13TH POUSHA, 1945** **CO NO. 152 OF 2022** **AGAINST THE ORDER/JUDGMENT MACA 471/2012 OF HIGH COURT OF** ## **KERALA** ## **CROSS OBJECTORS/1ST & 2nd RESPONDENTS IN MACA/1ST & 2 nd** **RESPONDNETS IN OP(MV):** 1 VIJAYAN KAKKODAN AGED 48 YEARS S/O. SANKARAN K, KAKKODAN HOUSE, MAMBURAM, THIRURANGADI, MALAPPURAM DISTRICT, PIN - 676311 2 MOHAMMEDKUTTY AGED 65 YEARS KUNHEEDU HAJI, KADENGAL HOUSE, AREETHODE, MAMPAD, AR NAGAR, MALAPPURAM DISTRICT, PIN - 676305 BY ADV K.P.SUDHEER ## **RESPONDENTS/APPELLANTS & 3rd RESPONDENT IN MACA/CLAIMANTS &** ## **3 rd RESPONDENT IN OP MV:** 1 K. MOIDEENKUTTY,AGED 64 YEARS, PALAMTHARA HOUSE, P.O. MAMBURAM, THIRURANGADI (VIA), MALAPPURAM DISTRIC, PIN - 676311 2 AYISHABEE,AGED 59 YEARS, PALAMTHARA HOUSE, P.O. MAMBURAM, THIRURANGADI (VIA), MALAPPURAM DISTRICT, PIN - 676311 3 SAKEENA,AGED 36 YEARS, PALAMTHARA HOUSE, P.O. MAMBURAM, THIRURANGADI (VIA), MALAPPURAM DISTRICT, PIN - 676311 3 ## **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** 4 THE NEW INDIA ASSURANCE CO LTD, U.P. HILL, MALAPPURAM DISTRICT, PIN - 676 505, REPRESENTED THROUGH ITS BRANCH MANAGER, PIN - 676505 BY ADVS. P.SAMSUDIN VPK.PANICKER THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 03.01.2024, ALONG WITH MACA.471/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 4 **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** ## **JUDGMENT** This appeal is submitted by the petitioners in O.P. (M.V.) No.607/2008 on the files of the Motor Accidents Claims Tribunal, Manjeri and the Cross Objection was submitted by the 1[st] and 2[nd] respondents in the said claim petition. The said claim petition was submitted by the appellants seeking compensation for the death of one Basheer, who died due to the injuries sustained in a motor accident that occurred on 02.01.2008. 2. According to the appellants, the accident occurred when the deceased was travelling in a goods autorickshaw loaded with bamboo and wood as an agent of those goods which were being transported to the copra field of one Alavi Haji; it capsized when it reached Areecode junction. Due to the injuries sustained, the deceased died while he was undergoing treatment at Medical College Hospital, Kozhikode. The deceased was employed in copra business, with a monthly income of Rs.5,000/-. He was 30 years old at the time of the accident, and the claimants are the parents and the wife of the deceased. The claim petition was submitted in such circumstances. 5 ## **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** 3. The 1st and the 2nd respondents, the owner and the driver of the vehicle, were set ex parte. The 3rd respondent insurance company submitted a written statement admitting the existence of an insurance policy for the said vehicle. However, it was contended by them that, at the relevant time, the deceased was travelling in the goods autorickshaw by sharing the seat with the driver and therefore, his risk was not covered as per the terms and conditions of the policy, and no additional premium was also collected to cover such risk. Therefore, they sought exoneration from the liability. 4. To support the contentions, from the side of the appellants, PWs 1 to 3 were examined, and Exts.A1 to A3 were marked. From the side of the respondents, Ext.B1 to B3 were marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the autorickshaw. However, it was found that the deceased was a gratuitous passenger in the goods vehicle and therefore, the 3rd respondent insurance company was exonerated from the liability. The quantum of compensation was fixed as Rs.4,36,000/- and the said amount was to be recovered from the 1st and 2nd 6 ## **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** respondents, with interest at the rate of 9% per annum from the date of petition till realisation and with proportionate cost. This appeal is submitted by the appellants/claimants challenging the findings of the Tribunal exonerating the 3rd respondent /insurance company and also seeking enhancement of compensation. 5. The 1st and 2nd respondents in the claim petition have filed Cross Objection No.152/2022 challenging the finding of the Tribunal exonerating the insurance company. 6. Heard, Sri. P.Samsudin, the learned counsel appearing for the appellants, Sri.K.P. Sudheer, the learned counsel appearing for the Cross Objectors/respondents 1 and 2 and Sri.V.P.K Panicker, the learned counsel appearing for the 3[rd] respondent/the insurer of the said vehicle. 7. The first question to be considered relates to the contention regarding the exoneration of the 3rd respondent /insurance company from liability. The learned counsels for the appellants and respondents 1 and 2 contend that the finding of the Tribunal in this regard was erroneous as the same was passed overlooking the valuable evidence in the form of PWs 1 and 2 coupled with Ext.A3 copy of the inquest report. 7 ## **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** 8. The learned counsel for the insurance company, on the other hand, opposes the said contention by highlighting that, in the site mahazar, which is marked as Ext.B3, the presence of any goods in the said vehicle was not mentioned and therefore, the deceased could not be treated as representative of the owner of the goods carried in the said vehicle. Therefore, the learned counsel seeks for dismissal of the appeal as well as the cross objection. 9. I have carefully gone through the records. It is discernible from the observations made in the award that the Tribunal disbelieved the evidence of PW1 and PW2 and placed reliance upon Ext.B3 site mahazar to arrive at the conclusion that the vehicle was not loaded with woods and bamboos at the relevant time. In these circumstances, the Tribunal found that the deceased was not travelling in the said vehicle in the capacity of the representative of the owner of the goods carried in the said vehicle. However, the crucial aspect to be noticed in this regard is the evidence of PW1 and PW2 as well as the contents of the Ext.A3 inquest report. Ext. A3 inquest report is apparently prepared immediately after the death of the deceased. In 8 ## **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** paragraphs 9 and 10 of the Ext.A3 inquest report, statements of one Mujeeb and Vijayan are recorded. In the statements of both the said persons, it was categorically mentioned that at the relevant time, the deceased was travelling in the said autorickshaw, with certain woods carried in the said autorickshaw, which was being transported to the house of one Alavi Haji. According to them, the accident occurred at that point of time. Since the said statements were made by the said persons immediately after the accident and the death of the deceased, the chances of an afterthought are very low. 10. The aforesaid statements are fortified by the evidence of PW1 and PW2 as well. The PW1 was Alavi Haji, the employer of the deceased, and as per the statements contained in the inquest report, the woods were being transported to his house. In his deposition, he clearly mentioned the transportation of the woods in the said vehicle, and according to him, he purchased the said woods. He also stated that after the accident, the said woods were lying at the place of occurrence and he had removed the same from the said place. PW2 is the brother of the deceased. In his deposition, he stated that he was a bus conductor and at the relevant 9 **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** time, he was travelling in a bus which followed the vehicle in which the deceased travelled. According to him, he witnessed the incident, and the vehicle was loaded with woods at the relevant time. He also stated that immediately after the accident, he had taken the victim to the hospital. 11. In the claim petition submitted by the appellants, it was specifically mentioned that at the relevant time, the deceased was travelling in the said vehicle as the representative of the owner of the woods carried in the said vehicle. However, there is some discrepancy with respect to the nature of the goods carried in the said vehicle. In the claim petition, it is mentioned that the goods carried in the said vehicle were bamboo and other woods to the copra field of Sri.Alavi Haji. However, when the said Alavi Haji was examined as PW1, he stated that no bamboos were carried in the said vehicle. However, I am of the view, that cannot be treated as a major discrepancy, which necessitates discarding the said evidence as such. This is particularly because the evidence of PW1 is supported by the contents of the inquest report, which was prepared immediately after the accident. Even though in Ext.B3, site mahazar, the existence of any goods in the vehicle was not 10 ## **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** mentioned, that by itself cannot be a reason to arrive at the conclusion that no goods were carried in the said vehicle. This is particularly because, in his deposition, PW1 clearly stated that he had removed the said woods from the said vehicle. It is also to be noted that the Ext.B3 site mahazar was prepared at 16.30 p.m on 02.01.2008, whereas the accident occurred at 10.30 a.m. Therefore, the probability that the woods carried in the said vehicle were already removed by the time when the site mahazar was prepared cannot be ruled out, and the deposition of PW1 indicates the said aspect. 12. From the careful reading of the deposition of PW1 and PW2, I do not find any reason to discard the said evidence, particularly in view of the fact that the same was fortified by the contents of the Ext.A3 inquest report. In such circumstances, I have no hesitation to hold that the deceased was travelling in the said vehicle, as the representative of the woods carried in the said vehicle at the relevant time. Therefore, it would come within the statutory coverage within the stipulation contained under Section 147 of the Motor Vehicles Act. 11 ## **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** 13. The learned counsel for the insurance company further submitted that even if it is assumed that he was travelling in the said vehicle as the owner of the said wood, the coverage of the policy cannot be extended to the risk of the deceased as the deceased was travelling in the said vehicle by sharing the seat of the driver. It was pointed out that when there was no facility to carry an additional passenger in the said vehicle, the coverage of the policy could not be extended to such a passenger. However, the crucial aspect to be noticed in this regard is that there is absolutely no material indicating the seating capacity of the vehicle involved in the accident. None of the documents produced before the Tribunal mentions the seating capacity of the vehicle. In the Ext.B1 policy certificate issued by the 3[rd] respondent /insurance company also, there is no mention of the seating capacity. Moreover, in the written statement submitted by the 3rd respondent, the relevant pleading with respect to the coverage of policy reads as follows: "Admittedly, the deceased Basheer was travelling in the goods vehicle, sharing the seat of the driver. The risk of such a traveller is 12 ## **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** not covered by the policy nor is any additional premium collected to cover the risk." 14. A careful reading of the said averments would indicate that there was no mention of the seating capacity of the vehicle involved in the said accident. Of course, it was mentioned that the deceased at the relevant time was sharing the seat of the driver, but in the absence of any document to show that there was no facility in the said vehicle to accommodate an additional driver, the said pleading cannot be treated as sufficient for the purpose of determining the said question. Even though the learned counsel for the 3rd respondent contended that it was for the registered owner of the said vehicle to prove its seating capacity by producing necessary documents in this regard, I am not inclined to accept the said contention because of the fact that there is no specific pleading with specific reference to the seating capacity of the vehicle made by the 3rd respondent in their written statement as well. Thus, in the absence of any materials showing the seating capacity, I am of the view that the contention raised by the insurance company in this regard cannot be accepted. In such circumstances, the irresistible conclusion possible is that the 13 ## **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** finding of the Tribunal exonerating the insurance company from the liability is only to be interfered with, and accordingly, it is set aside. 15. The next aspect relates to the quantum of compensation. Even though the claimants contended that the deceased was working in the copra field of one Alavi Haji, PW1, with a monthly income of Rs.5,000/-, the Tribunal took the monthly income as Rs.3,000/- only. In the facts and circumstances of the case I find that the same is on the lower side. In support of the claim of monthly income, they have examined PW1, who deposed that he was paying an amount of Rs.5,000/- per month to the deceased. In view of the fact that the accident in this case occurred in the year 2008, the monthly income of Rs.5000/- can be treated as a reasonable amount. Therefore, I do not find any reason to discard the said claim, and accordingly, the monthly income is fixed as Rs.5,000/-. 16. As the deceased was 30 years old at the time of the accident, an addition of 40% of the monthly income has to be made towards future prospects. The deceased left behind the parents and the wife; therefore, 1/3 of the income should be 14 ## **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** deducted towards personal expenses. Thus, while reassessing the compensation with the above revised criteria, the compensation for loss of dependency would come to Rs.9,52,000/[(5,000+40%) x 12 x 17 x 2/3]. The amount already awarded by the Tribunal was Rs.4,08,000/-; thus, the additional compensation under this head would come to Rs.5,44,000/-. 17. In addition to the said amount, the appellants are entitled for compensation for loss of consortium at the rate of Rs.40,000/- each in the light of the **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780] and **Magma General Insurance Co.Ltd. v. Nanu Ram & Others** [2018 (3) KLT Online 3095 (SC)] . The Tribunal has already awarded an amount of Rs.10,000/- under this head and granted a further sum of Rs.10,000/- towards loss of love and affection. It was held in **Satwinder Kaur** (supra), that when compensation for loss of consortium is awarded, no further amounts needs to be granted towards loss of love and affection. Therefore, the said amount can be adjusted towards the additional amount granted by this Court towards loss of consortium. In the result the additional compensation for loss of consortium would 15 **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** come to Rs.1,00,000/-. The amount awarded by the Tribunal towards loss of estate was only Rs.5,000/-. Since the amount to be awarded under this head in the light of **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], is Rs.15,000/-, a further sum of Rs.10,000/- is awarded under the said head. 18. Similarly, the amount awarded towards funeral expenses was only 3,000/- and in the light of **Pranay Sethi** (supra) a further sum of Rs.12,000/- is awarded under the said head. Thus, the total additional compensation is determined as Rs.6,66,000/- and, the total compensation receivable by the appellants is re fixed as Rs.11,02,000/- (6,66,0000 + 4,36,000). In the light of the aforesaid observations and findings, this appeal and the cross objections are disposed of with the following orders: i) The award dated 24.10.2011 passed by the Motor Accidents Claims Tribunal, Manjeri in O.P.(M.V) No.607/2008 is hereby set aside to the extent it exonerated the 3[rd] respondent/Insurance company from the liability. It is held that, the deceased was travelling in the said vehicle as the 16 ## **MACA NO. 471 OF 2012 and CO NO. 152 OF 2022** representative of the owner of the goods and therefore, covered by the policy issued by the 3[rd] respondent. Therefore, the 3[rd] respondent is liable to pay the compensation. ii) The quantum of compensation is refixed as Rs.11,02,000/- (Rupees eleven lakhs and two thousand only) and the said amount shall be deposited by the 3[rd] respondent/insurance company with interest at the rate of 8% per annum from the date of petition till realisation with proportionate cost. The said deposit shall be made within a period of three months from the date of receipt of copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk