MACA No.1250 of 2014 (National Insurance Co. Ltd. v. Avarankutty P. et al.)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** **MACA.No.1250 OF 2014** **AGAINST THE AWARD IN OPMV 1126/2011 DATED 03.01.2014 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/3RD RESPONDENT:** **THE NATIONAL INSURANCE CO.LTD.,** **KOLKATA, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR OMANA BUILDING, M.G.ROAD, KOCHI-35.** **BY ADVS.** **SRI. GEORGE CHERIAN (SR) SMT.K.S.SANTHI** ## **RESPONDENTS/CLAIMANTS/RESPONDENTS 1 & 2:** - **1 AVARANKUTTY P S/O.ALIKUTTY, POOKKALUNGAL HOUSE, KUZHIYILTHODI, THRIKKANNUR, (P.O.) CHENAKALANGADI, (VIA) THENIPALAM, MALAPPURAM DISTRICT.** **2 RUKHIYA W/O.AVARANKUTTY.P., POOKKALUNGAL HOUSE, KUZHIYILTHODI, THRIKKANNUR, (P.O.) CHENAKALANGADI,** **(VIA) THENIPALAM, MALAPPURAM DISTRICT.** - **3 RAOOL.P.** **POOKKALUNGAL HOUSE, KUZHIYILTHODI, THRIKKANNUR, (P.O.) CHENAKALANGADI, (VIA) THENIPALAM, MALAPPURAM DISTRICT.** **4 M.HAMZA S/O.KUNHAMMAED, VAZHAMADAN PARAMBA HOUSE, (PO) KALLAY, KOZHIKODE DISTRICT.** MACA 1250/2014 & C.O.No.160/2016 -2- - **5 V.V.MOHAMED ALI S/O.POKUTTY, VADAKEVEETTIL HOUSE, NALLALAM (PO), KOZHIKODE DISTRICT.** **R4 BY ADVS. SRI.Y.JAFAR KHAN SRI.K.P.SUDHEER** **R1-3 BY ADV.SRI.C.M.MOHAMMED IQUABAL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2019, ALONG WITH CO.160/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 1250/2014 & C.O.No.160/2016 -3- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** **CO.No.160 OF 2016 IN MACA. 1250/2014** **AGAINST THE AWARD IN OPMV 1126/2011 DATED 03.01.2014 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** **CROSS OBJECTORS/RESPONDENTS 1 TO 3/CLAIMANTS:** - **1 AVARANKUTTY P., AGED 57 YEARS, S/O ALIKUTTY, POOKKALUNGAL HOUSE, KUZHIYILTHODI, THRIKKANNUR, P.O CHENAKALANGADI, VIA THENIPALAM, MALAPPURAM DISTRICT.** **2 RUKHIYA, AGED 50 YEARS, W/O AVARANKUTTY P., POOKKALUNGAL HOUSE, KUZHIYILTHODI, THRIKKANNUR P.O, CHENAKALANGADI, VIA THENIPALAM, MALAPPURAM DISTRICT.** **3 RAOOF P., AGED 36 YEARS, S/O AVARANKUTTY P., POOKKALUNGAL HOUSE, KUZHIYILTHODI, THRIKKANNUR, P.O CHENAKALANGADI, VIA THENIPALAM, MALAPPURAM DISTRICT.** **BY ADV. SRI.C.M.MOHAMMED IQUABAL** MACA 1250/2014 & C.O.No.160/2016 -4- ## **RESPONDENTS/APPELLANT AND OTHER RESPONDENTS/RESPONDENTS:** |**1**|**THE NATIONAL INSURANCE CO. LTD.**|**THE NATIONAL INSURANCE CO. LTD.**|| |---|---|---|---| ||**KOLKATA, REPRESENTED BY ITS DEPUTY MANAGER,**||| ||**REGIONAL OFFICE,**|**2ND FLOOR,**|| ||**OMANA BUILDING, M.G. ROAD, KOCHI**||**35.**| |**2**|**M. HAMZA**||| ||**S/O KUNHAMMAD,**||| ||**VAZHAMADAN PARAMBA HOUSE, P.O KALLAY,**||| ||**KOZHIKODE DISTRICT.**||| |**3**|**V.V. MOAMMED ALI,**||| ||**S/O POKUTTY, VADAKEVEETTIL HOUSE,**||| ||**NALLALAM P.O, KOZHIKODE DISTRICT.**||| ||**R1 BY ADV. SRI.K.P.SUDHEER**||| ||**R1 BY ADV. SMT.K.S.SANTHI**||| **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2019, ALONG WITH MACA.1250/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 1250/2014 & C.O.No.160/2016 5 ## **JUDGMENT** **MACA.No.1250 OF 2014:-** The appellant is the 3[rd] respondent insurer in O.P.(MV)No.1126 of 2011 on the file of the Motor Accidents Claims Tribunal, Tirur, a claim petition filed under Section 163A of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Mohammed Ali @ Nadeem, son of appellants 1 and 2 and brother of the 3[rd] appellant, in a motor accident, which occurred on 01.07.2010, while he was riding a motorcycle. At the place of accident, the motorcycle hit on a lorry bearing registration No.KL-55/1006, which was parked on the side of a road. The 4[th] respondent in this appeal is the owner, the 5[th] respondent is the driver and the appellant is the insurer of the said lorry. In the accident, the deceased sustained fatal injuries, who succumbed to the injuries while undergoing treatment at Medical College Hospital, Kozhikode. Alleging that the accident occurred due to the rash and negligent driving of lorry by its driver, claim petition was filed before the Tribunal, on 27.12.2011, under Section 163A of the Motor Vehicles Act, claiming a total compensation of Rs.5,50,000/- under various heads. MACA 1250/2014 & C.O.No.160/2016 -6- 1.1. At the time of accident, the deceased was aged 21 years. In the claim petition, it was claimed that the deceased was earning a monthly income of Rs.3,300/- as Accountant in a Computer concern. 1.2. Before the Tribunal, the owner and driver of the offending vehicle remained absent and they were set ex parte. The insurer filed written statement admitting insurance coverage of the offending vehicle; however, denying negligence alleged against its driver. The insurer contended that the accident occurred due to the negligence of the deceased, who was riding the motorcycle. It was also contended that the monthly income of the deceased is more than Rs.3,300/-, as he was an Accountant in a Computer concern. 1.3. Before the Tribunal, Exts.A1 to A13 were marked on the side of the claimants and one Sundaran was examined as PW1. A copy of the charge sheet was marked as Ext.B1. After considering the pleadings and materials on record, the Tribunal arrived at a finding that the deceased sustained injuries in a motor accident, who later succumbed to the injuries. Therefore, the claimants, who are the parents and brother of the deceased, are entitled for MACA 1250/2014 & C.O.No.160/2016 -7- compensation under Section 163A of the Motor Vehicles Act. 1.4. The Tribunal fixed the monthly income of the deceased as Rs.3,300/- and awarded a sum of Rs.4,32,000/- as dependency compensation as per the 2[nd] Schedule to the Motor Vehicles Act, after deducting 1/3[rd] of the monthly income towards the personal expenses of the deceased and applying the multiplier of '17' applicable to his age group. The Tribunal awarded a further sum of Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate. Since insurance coverage of the offending vehicle was not in dispute, the appellant insurer was directed to satisfy the award of Rs.4,36,500/-, together with interest at the rate of 9% per annum from the date of petition, i.e., 27.12.2011, till realisation. 1.5. Challenging the award passed by the Tribunal, the appellant insurer is before this Court in this appeal, by contending that since the accident occurred due to the negligence of the deceased, the Tribunal ought to have held that the claimants are not entitled for compensation. 1.6. On 06.06.2014, when this matter came up for admission, MACA 1250/2014 & C.O.No.160/2016 -8- this Court admitted the matter on file and issued notice by speed post to the respondent. This Court has also granted an interim stay of execution of the award in O.P.(MV)No.1126 of 2011 for a period of three months. 1.7. Today when the case is taken up for consideration, the learned Standing Counsel for the appellant insurer seeks permission to withdraw this appeal, in view of the law laid down by the Apex court in **United India Insurance Company v. Sunil Kumar [AIR 2017 SC 5710]** and **Shivaji v. Divisional Manager, United India Insurance Company Ltd. [AIR 2018 SC 3705]** , wherein it was held that, in proceedings under Section 163A of the Motor Vehicles Act, 1988, the insurer cannot raise any defence of negligence on the part of the victim to counter the claim for compensation. 1.8. In such circumstances, recording the above submission of the learned counsel for the appellant insurer, this appeal is dismissed as withdrawn. **- Cross Objection No.160 of 2016:** The claimants in O.P. (MV)No.1126 of 2011 on the file of the Motor Accident Claims MACA 1250/2014 & C.O.No.160/2016 -9- Tribunal, Tirur who are respondents 1 to 3 in M.A.C.A.No.1250 of 2014 filed by the 1[st] respondent insurer, have filed this cross objection, after the receipt of notice in M.A.C.A.No.1250 of 2014, with a delay of 862 days, claiming enhanced compensation. 2.1. In this cross objection, it is contended that the Tribunal went wrong in deducting 1/3[rd] of the monthly income of the deceased towards his personal expenses. The Tribunal went wrong in applying the multiplier of '17', while calculating dependency compensation, instead of applying the multiplier of '18'. The compensation awarded by the Tribunal under the head funeral expenses and loss of estate are on the lower side. 2.2. The delay of 862 days in filing this cross objection is yet to be condoned. The reason stated in C.M.Application No.4687 of 2016 for condoning the delay of 862 days in filing this cross objection reads thus; “2. It is submitted that the above appeal is preferred against the award dated 3.1.14 in O.P.(MV)No.1126/2011 on the file of the MACT, Tirur. On receipt of the summons in the above appeal, we filed vakalath on 23.6.2014. In MACA 1250/2014 & C.O.No.160/2016 -10- the ordinary course, this cross objection ought to have been filed on or before 23.7.2014. Since it is filed only on today, there is a delay of 862 days happened in filing the same. The delay is happened due to the following reasons. 3. It is submitted that even though we also were aggrieved by the above award, we were under the wrong impression that our grievance also can be agitated in the above appeal. But yesterday when we are discussing the matter with our counsel we are advised that to agitate our grievance we have either to file a separate appeal or cross objection in this matter. Accordingly we entrusted our counsel to file this cross objection and the delay is happened due to the above reasons. Moreover I was abroad due to my job. There is no willful laches or negligence on our part in not filing the cross objection in time. If the delay is not condoned, we will be put to much difficulties.” The reason stated as aforesaid is not at all satisfactory for condonation of a delay of 862 days in filing this appeal. Even otherwise, the grounds raised in this cross objection, which are noticed hereinbefore, are not available to the cross objectors/claimants, since the claim petition in question, i.e., O.P. (MV)No.1126 of 2011 is one filed under Section 163A of the Motor MACA 1250/2014 & C.O.No.160/2016 -11- Vehicles Act, where compensation is awarded under the structured formula in the Second Schedule to the Motor Vehicles Act after deducting 1/3[rd] of the monthly income of the deceased towards personal and living expenses; adopting the multiplier specified in the Second Schedule applicable to the age group of the deceased; and by granting the amounts specified in the Second Schedule towards funeral expenses and loss of estate. In such circumstances, this Court finds no reason either to condone the delay of 802 days in filing this cross objection or to entertain the cross objection. In the result, the C.M.Application and the Cross Objection are dismissed. **Sd/ANIL K. NARENDRAN JUDGE** skk//11.28.291119