MACA No.1552/2013 and MACA No.1838/2013

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA,** **1943** **MACA NO. 1552 OF 2013** **AGAINST THE AWARD DATED 19.02.2013 IN OP(MV) 937/2010 OF** **MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER :** **DHANYA, W/O.LATE SUDHEESH, NADUVATHANI HOUSE, MEENACHALIL P.O., VAYANASALA BHAGOM, POOVARANY, MEENACHALIL TALUK, KOTTAYAM DISTRICT.** **BY ADVS. SRI.ABRAHAM MATHEW (VETTOOR) SRI.SRI.ANIL ABEY JOSE** ## **RESPONDENTS/RESPONDENTS :** - **1 HARIS MON P.H., S/O.HAMEED P.A, HARIS MANZIL HOUSE, VADAKARA P.O, VELLOOR VILLAGE, THALAYOLAPARAMBU, KOTTAYAM DISTRICT, PIN-686605.** - **2 RAFEEK, S/O.ABDULKAREEM, KAYYALAKALA, MIDAYIKKUNNAM P.O, THALAYOLAPARAMBU, KOTTAYAM DISTRICT, PIN-686605.** - **3 RENEESH A.R., AYYANEZHATHU THARAYIL HOUSE, KULASEKHARAMANGALAM P.O., VAIKOM, KOTTAYAM DISTRICT, PIN-686608.** - **4 THE ORIENTAL INSURANCE CO.LTD., REP.BY ITS DIVISIONAL MANAGER, KOTTAYAM, PIN686001.** **BY ADVS. SRI.V.SRI NATH FOR R1 SRI.MATHEWS JACOB, SR. STANDING COUNSEL FOR R4 SRI.P.JACOB MATHEW, STANDING COUNSEL FOR R4 SRI.K.R.VINOD SRI.K.R.PRAMOD FOR R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.12.2021, ALONG WITH MACA.1838/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _M.A.C.A No.1552/2013 & M.A.C.A No.1838/2013_ 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA,** ## **1943** ## **MACA NO. 1838 OF 2013** **AGAINST THE AWARD DATED 19.02.2013 IN OP(MV) 937/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA** **APPELLANT/RESPONDENT NO.2 :** **RAFEEK, S/O.ABDULKAREEM, KAYYALAKALA, MIDAYIKKUNNAM.P.O., THALAYOLAPARAMBU.** **BY ADVS. SRI.K.R.VINOD SMT.M.S.LETHA** ## **RESPONDENTS/PETITIONER & RESPONDENTS NO.1,3 & 4 IN O.P. :** - **1 DHANYA, W/O.LATE SUDHEESH, CHELLACKAL HOUSE, VARICKAMKUNNU, VADAKARA P.O., VELLOOR VILLAGE NOW RESIDING AT NADUVATHANI HOUSE, MEENACHIL.P.O., VAYANASALA BHAGOM, POOVARANY, MEENACHIL TALUK-686576.** - **2 HARIS MON.P.H., S/O.ABDULKAREEM, KAYYALAKALA, MIDAYIKKUNNAM.P.O., THALAYOLAPARAMBU-686605.** - **3 RENEESH.A.R.,AYYANEZHATHUTHARAYIL HOUSE, KULASEKHARAMANGALAM P.O., VAIKOM-686141.** - **4 THE ORIENTAL INSURANCE CO.LTD., REP. BY ITS DIVISIONAL MANAGER, KOTTAYAM-686001.** **BY ADVS. SRI.ABRAHAM MATHEW (VETTOOR) SRI.V.SRINATH SRI.ANIL ABEY JOSE SRI.MATHEWS JACOB, SR. STANDING COUNSEL SRI.P.JACOB MATHEW, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.12.2021, ALONG WITH MACA.1552/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _M.A.C.A No.1552/2013 & M.A.C.A No.1838/2013_ 3 ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A No.1552 of 2013 and M.A.C.A No.1838 of 2013_ ================================ _Dated this the 14[th] day of December, 2021_ ## _**J U D G M E N T**_ M.A.C.A.No.1552/2013 is an appeal at the instance of the original petitioner in O.P(MV).No.937/2010; whereas M.A.C.A.No.1838/2013 is an appeal filed by the 2nd respondent, the owner of the alleged offending vehicle challenging recovery right granted in favour of the 4th respondent insurer on the finding that the vehicle involved was engaged in illegal transport of sand at the time of occurrence and thereby the conditions of policy has been violated. 2. Heard both sides. 3. The parties in these appeals will be referred as `petitioner' and `respondents' hereafter. _M.A.C.A No.1552/2013 & M.A.C.A No.1838/2013_ 4 ## 4. Brief facts: Petitioner is the wife of the deceased Sudheesh, aged 30 years, who died in a motor accident occurred on 20.08.2010 after the midnight at about 1.10 a.m while walking on the side of the Moolakkada – Manackakkadavu road at Vadakara Kara in Velloor Village. According to the petitioner, a Swaraj Mazda lorry bearing No.KL-5/U-6901 driven by the 1st respondent in a rash and negligent manner ran over Sudheesh. Although he was immediately taken to the Medical College Hospital, Kottayam, he succumbed to the injuries on the way to the hospital. The deceased husband of the petitioner was a driver by profession, who was earning Rs.10,000/- per month at the time of the accident. The deceased while 2nd respondent was the registered owner of the vehicle. 3rd respondent was the insured of the vehicle and the offending vehicle was insured with the 4th respondent at the time of the accident. Hence this petition claiming compensation by the wife of the deceased person. 5. Respondents 1 to 3 did not contest the claim. _M.A.C.A No.1552/2013 & M.A.C.A No.1838/2013_ 5 6. The 4th respondent filed written statement. It was pleaded that the offending tipper lorry driven by the 1st respondent was engaged in transporting sand contrary to the provisions of the Mining Act and thereby policy condition was violated. Statement of the petitioner regarding the age, occupation and monthly income of the deceased etc. were denied by the insurer. The insured neither intimated nor filed any claim form before the insurance company soon after the accident. 7. Firstly, I shall address the inadequacy of compensation alleged by the original petitioner. The learned counsel for the original petitioner submitted that the Tribunal taken Rs.4,000/- as the monthly income of the deceased, though it was specifically contended before the Tribunal that the income of the deceased at the time of accident was Rs.10,000/- by doing the job of driver. Ext.A6 driving licence has been placed to substantiate this contention. The learned counsel for the petitioner fairly submitted that following the ratio in [(2011) 13 SCC 236], _**Ramachandrappa v. Manager, Royal Sundaram Alliance**_ , _M.A.C.A No.1552/2013 & M.A.C.A No.1838/2013_ 6 Rs.7,500/- ought to be fixed as the monthly income and 40% addition also to be made towards future prospects. 8. Disspelling this contention it is argued by the learned counsel for the insurance company that, in this case, the learned counsel for the petitioner submitted before the Tribunal that Rs.5,000/- to be taken as the monthly income. Therefore, the income should be confined to Rs.5,000/-. 9. Here the status of Sudheesh as a driver could be gathered from Ext.A6 driving licence produced. In such a case, I am not inclined to give much credence to the submission made by the learned counsel appeared for the petitioner before the Tribunal. I am inclined to fix monthly income of Sudheesh at Rs.7,500/- as settled in _**Ramachandrappa's**_ case ( _supra_ ). Therefore, for the purpose of calculating loss of dependency income, the monthly income of Sudheesh is taken as Rs.10,500/- [7500 + ( 7500X4/100)]. The multiplier applied by the Tribunal and the deduction made by the Tribunal as 1/3rd were not in dispute. Therefore, the loss of dependency income is recalculated _M.A.C.A No.1552/2013 & M.A.C.A No.1838/2013_ 7 as : 10500 X 12 X 17 X 2/3 = Rs.14,28,000/-, out of which Rs.7,07,200/- was granted by the Tribunal. Hence **Rs.7,20,800/more** is granted under the head loss of dependency. 10. The learned counsel for the petitioner canvassed increase under the conventional heads also following the ratio in [(2017) 16 SCC 680], _**National Insurance Company Limited v. Pranay Sethi and Ors.**_ Whereas the learned counsel for the insurance company canvassed deduction of the amount granted under the heads pain and sufferings and loss of love and affection following the ratio in [AIR 2020 SC 3076], _**United India Insurance Co. Ltd. v. Satinder Kaur**_ . Perusal of the award would go to show that the Tribunal granted only Rs.5,000/- each under the head funeral expenses and loss of estate. Therefore, **Rs.10,000/- (each) more** is granted under the heads **funeral** and **loss of estate** 's **expenses** following the ratio in _**Pranay Sethi**_ case ( _supra_ ). Towards loss of consortium only Rs.15,000/granted though the petitioner is entitled to Rs.40,000/-. Hence, **Rs.25,000/- more** is granted under the head loss of consortium _M.A.C.A No.1552/2013 & M.A.C.A No.1838/2013_ 8 following the ratio in _**Pranay Sethi**_ 's case ( _supra_ ). 11. Rs.10,000/- each granted under the head pain and sufferings and loss of love and affection is impermissible following the ratio in _**Satinder Kaur**_ 's case ( _supra_ ) and hence **Rs.20,000/-** is **deducted** . 12. Coming to M.A.C.A.No.1838/2013, the 2nd respondent did not contest the matter before the Tribunal. However, at the time of appeal hearing, a specific contention raised before this Court that the police charge fastening culpability on the 2nd respondent under Sections 12(2)(3)(10) Section 17(3) read with 20 of the Kerala Protection of River Banks and Regulation of Sand Act, 2001, in fact, found to be meritless by the Judicial First Class Magistrate Court, Vaikom. To substantiate this contention, judgment dated 26.03.2013 in C.C.No.698 of 2010 has been placed along with a petition to receive the same. This petition filed at a much belated stage is allowed in the interest of justice on payment of cost of Rs.10,000/- (Rupees Ten thousand only) to the counsel for the insurance company. Cost paid and memo filed _M.A.C.A No.1552/2013 & M.A.C.A No.1838/2013_ 9 before this Court. Thus the copy of judgment dated 26.03.2013 in C.C.No.698 of 2010 passed by the Judicial First Class **Exhibit-B1** . Magistrate Court, Vaikom is marked as 13. On perusal of Ext.B1 judgment, it could be gathered that the judgment was pronounced on 26.03.2013 after passing award in this case on 19.02.2013. Therefore, there is justification on the part of the 2nd respondent in producing the judgment before this Court since the judgment was not available at the time of passing the award though the 1st respondent could very well produce the order passed under Section 258 of Cr.P.C before the Tribunal. On reading Ext.B1, it could be gathered that accused was not even tried for the offences under Section 12(2)(3)(10) Section 17(3) read with 20 of the Kerala Protection of River Banks and Regulation of Sand Act, 2001 (Sand Act) and the proceedings for said offence was stopped by invoking power under Section 258 of Cr.P.C by the Magistrate which is having the effect of discharge. Thus Ext.B1 would depict that the allegation against the 2nd respondent in the matter of illegal _M.A.C.A No.1552/2013 & M.A.C.A No.1838/2013_ 10 transportation of sand against the prohibitions contained in the Sand Act found to be negatived by the competent criminal court even without trial. Filing charge sheet incorporating the said offences is the basis on which the Tribunal granted recovery right. In view of Ext.B1, there is no justification to find that the 2nd respondent used the vehicle for transporting illegal sand and as such the recovery right given in favour of the insurer on that ground alone is liable to be set aside and I do the same. 14. In the result, M.A.C.A.No.1552 of 2013 filed by the petitioner is allowed. It is held that the appellant/petitioner is entitled to get Rs.7,45,800/- (Rupees Seven lakh forty five thousand eight hundred only) as enhanced compensation and the award impugned is modified as above with the same rate of interest granted by the Tribunal. The insurance company is directed to deposit the same in the name of the appellant within two months from today and the appellant is at liberty to release the same, on deposit. M.A.C.A.No.1838 of 2013 also stands allowed and thereby _M.A.C.A No.1552/2013 & M.A.C.A No.1838/2013_ 11 the recovery right granted in favour of the 4th respondent from the 2nd respondent is set aside. Consequently, it is held that the entire award amount shall be paid by the insurance company to the petitioner, and it is ordered accordingly. Sd/- ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ _M.A.C.A No.1552/2013 & M.A.C.A No.1838/2013_ 12 ## **APPENDIX OF MACA NO.1838/2013** **PETITIONER(S)' ANNEXURE** **EXHIBIT B1** **THE CERTIFIED COPY OF JUDGMENT DATED 26.03.2013 OF JFCM-I, VAIKOM IN CC NO.698/2010.**