M.A.C.A No.2023 of 2012 & C.O.No.92 of 2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** **MACA NO. 2023 OF 2012** **AGAINST THE AWARD IN OP(MV) 260/2004 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH** ## **PARAVUR, ERNAKULAM** ## **APPELLANT/2ND RESPONDENT IN THE OP:** NATIONAL INSURANCE CO.LTD, IRINJALAKKUDA, REPRESENTED BY THE AUTHORISED SIGNATORY, NATIONAL INSURANCE CO. LTD, KOCHI REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDINGS, MG ROAD, KOCHI-35. BY ADV SRI.A.R.GEORGE ## **RESPONDENTS/CLAIMANTS & RESPONDENTS 1 & 2 IN THE OP:** 1 KOCHU KARAPPAN S/O. AYYAPPAN, KANATHATTU HOSUE, POOPPATHY, POYYA. PIN-680733. 2 VALLIKKUTTY W/O. KOCHU KARAPPAN, DO- DO- PIN-680733. 3 BENCHITHA D/O. KOCHU KARAPPAN, DO- DO- PIN-680733. 4 BINDU D/O. KOCHU KARAPPAN, DO- DO- PIN-680733. 5 P.V.MERY, D/O.VARGHESE, PADATHURUTHIL HOUSE, MANACHERI KUNNU, PUTHENVELIKARA. PIN-683512. *6 SEETHA, W/O. SANTHOSH, THEMALIPARAMBIL HOUSE, CHETTIKKULAM, PARAKKADAVU. PIN-683579. [DELETED] *4 PAULSON, S/O. JOSEPH, CHANASSERY HOUSE, MADATHUMPADI DESOM, MADATHUMPADI VILLAGE, KODUNGALLOOR TALUK. PIN-680664. [DELETED] **M.A.C.A No.2023 of 2012 & C.O.No.92 of 2015** 2 *R6 AND R7 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 17.09.2014 IN I.A.NO.2263/2014 IN M.A.C.A. NO.2023/2012. BY ADVS. SRI.A.N.SANTHOSH SMT.ANUPAMA JOHNY SRI.REJI GEORGE THIS M.A.C.A HAVING COME UP FOR ADMISSION ON 29.10.2021, ALONG WITH CO.92/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.2023 of 2012 & C.O.No.92 of 2015** 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** **CO NO. 92 OF 2015** **AGAINST THE AWARD IN OP(MV) 260/2004 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH** ## **PARAVUR, ERNAKULAM** **CROSS OBJECTORS (RESPONDENT 1 TO 4 IN MACA NO.2023/2012):** 1 KOCHU KARAPPAN, AGED 65, S/O. AYYAPPAN, KANATHATTU HOUSE, POOPPATHY, POYYA. PIN-680733. 2 VALLIKKUTTY W/O. KOCHU KARAPPAN, KANATHATTU HOUSE, POOPPATHY, POYYA. PIN-680733. 3 BENCHITHA D/O. KOCHU KARAPPAN, KANATHATTU HOUSE, POOPPATHY, POYYA. PIN-680733. 4 BINDU D/O. KOCHU KARAPPAN, KANATHATTU HOUSE, POOPPATHY, POYYA. PIN-680733. BY ADVS. SRI.GOPAKUMAR G. (ALUVA) SRI.REJI GEORGE **RESPONDENT (APPELLANT AND RESPONDENT NO.5 IN MACA NO.2023/2012):** 1 NATIONAL INSURANCE CO.LTD, IRINJALAKKUDA, REPRESENTED BY THE AUTHORISED SIGNATORY, **M.A.C.A No.2023 of 2012 & C.O.No.92 of 2015** 4 NATIONAL INSURANCE CO. LTD, KOCHI REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDINGS, MG ROAD, KOCHI-35. 2 P.V.MERY, D/O.VARGHESE, PADATHURUTHIL HOUSE, MANACHERI KUNNU, PUTHENVELIKARA. PIN-683512. BY ADV SRI.A.R.GEORGE THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 29.10.2021, ALONG WITH MACA.2023/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 5 ## **M.A.C.A No.2023 of 2012** **&** **C.O.No.92 of 2015** ## **JUDGMENT** M.A.C.A. No.2023/2012 is at the instance of the original 2[nd] respondent, Insurance Company. Appellant is aggrieved in the matter of non-granting of recovery right even after failure to produce the Driving Licence despite specific direction. Whereas, Cross Objection No.92/2015 is at the volition of the respondents in the appeal, who are original petitions in O.P.(M.V) No.260/2004 of MACT, North Paravur, who are aggrieved by the quantum of compensation as well as finding 25% contributory negligence on the part of the rider of the motor vehicle, where the above said Biju, was the pillion. 2. First of all, it is submitted by the learned counsel for the Insurance Company that in the written statement filed by the Insurance Company, a specific contention was ## **M.A.C.A No.2023 of 2012** **& C.O.No.92 of 2015** 6 raised to the effect that the driver of the offending vehicle (who also succumbed injuries in consequence of the accident) did not possess a valid Driving License. Thereafter, on the application of the Insurance Company, the wife of the deceased driver was directed to produce Driving License pertaining to the driver of the alleged offending vehicle. Even though direction was given to produce Driving License, no Driving License produced to establish the point that the driver did possess a valid Driving License at the relevant time of accident. Therefore, the Tribunal ought to have taken adverse inference and recovery right ought to have been granted. Since the right was declined, this appeal was preferred. The learned counsel for the Insurance Company pressed for recovery right. ## **M.A.C.A No.2023 of 2012 & C.O.No.92 of 2015** 7 3. On perusal of the award supported by the direction in I.A.No.1463/2009, the submission appears to be correct. It is not in dispute that absence of Driving Licence is a negative fact and cannot be proved by positive evidence. Therefore, generally two options are available to find absence of Driving License. i) the police charge against the offender alleging absence of Driving Licence and ii) to direct the driver or owner to produce the Driving Licence and non-production thereafter would indicate that the driver did not possess a Driving Licence at the time of accident and on such non-production an adverse inference to to be drawn to hold that there was no Driving Licence to the driver of the offending vehicle at the time of accident. Here, the Company rightly filed I.A.No.1463/2009 and the 3[rd] respondent, wife of deceased driver, was ## **M.A.C.A No.2023 of 2012** **& C.O.No.92 of 2015** 8 directed to produce Driving Licence, despite that no Driving Licence produced. Therefore, an adverse inference could be drawn to hold that there was no Driving Licence for the driver of the vehicle at the time of accident. In short, the right recovery sought by the Company is liable to be allowed and non-grant of the said relief by the Tribunal, is not legally sustainable. Thus, the contention raised by the learned counsel for the Insurance Company found sustainable and recovery right of the award granted by the Tribunal inclusive of any enhancement by this Court is liable to be granted. 4. Coming to the cross objectors (hereinafter referred as 'the original petitioners'), their learned counsel would submit that the award granted by the Tribunal is insufficient. It is submitted by the ## **M.A.C.A No.2023 of 2012 & C.O.No.92 of 2015** 9 learned counsel for the original petitioners that the Tribunal wrongly found contributory negligence on the part of the pillion rider also, without support of any evidence and ignoring the police charge alleging negligence on the part of the driver (now no more) of the offending vehicle. 5. It is submitted by the learned counsel for the original petitioners that in the decision reported in _**Mohammed Siddique and**_ _**another Vs. National Insurance Co. Ltd. and**_ _**others**_ **: 2020 ACJ 751** , it was held that carrying two pillion drivers in a motor bike by itself is not a reason to find contributory negligence. 6. It has been settled by a catena of decisions starting from _**New India Assurance Co. Ltd v. Pazhaniammal**_ **: 2011 (3) KLT 648]** and the latest decision reported in _**Balan R.**_ **M.A.C.A No.2023 of 2012 & C.O.No.92 of 2015** **==> picture [13 x 9] intentionally omitted <==** ## _**v. Abhiraj R. and others**_ **: 2021 (4) KHC 380** , that the police charge can be relied on to find negligence on the driver, unless and until convincing evidence to have deviation from the police charge, otherwise not established. Ext.A1 is the police charge herein and is against the rider of the offending vehicle and the same should be given predominance in a case where no other evidence adduced to hold otherwise. Therefore, I am inclined to set aside the finding regarding 25% contributory negligence by the Tribunal and it is held that the rider of the motor cycle fully contributed to the accident. 7. Coming to the challenge as regards to the insufficiency of compensation, it is submitted by the learned counsel for the original petitioners that the monthly income claimed in relation to the deceased was **M.A.C.A No.2023 of 2012 & C.O.No.92 of 2015** **==> picture [12 x 9] intentionally omitted <==** Rs.6,000/- per month as he was a granite stone worker. However, the Tribunal fixed Rs.3,000/as notional income and compensation calculated based on this income. It is submitted that following the ratio in _**Ramachandrappa v.**_ _**Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC 236** , also the income of the deceased should have been fixed at Rs.4,000/- (applies to 2003) taking note of the fact that the accident was on the last week of the year 2002. However, following the ratio in _**Ramachandrappa's**_ case (supra), if deduction at the rate of Rs.500/- per year is made, the monthly income would come Rs.3,500/during 2012 and I am not inclined to have any deviation therefrom to make things more complicated. Therefore, Rs.3,500/- is fixed as monthly income. Thus, 'loss of dependency' is recalculated as; **M.A.C.A No.2023 of 2012 & C.O.No.92 of 2015** **==> picture [13 x 9] intentionally omitted <==** 3,500+40% = 4,900x12x18x½ = 5,29,200/-. Out of which, Rs.3,24,000/- was granted by the Tribunal and the remaining viz., **Rs.2,05,200/-** more is granted under the head 'loss of dependency'. 8. Coming to the other heads also, it is submitted by the learned counsel for the original petitioners that under the head 'funeral expenses', only Rs.5,000/- was granted by the Tribunal. Similarly, towards 'loss of estate' also, Rs.10,000/- alone was granted. It is settled as per the ratio in _**National Insurance Company Ltd. v. Pranay**_ _**Sethi :**_ **(2017) 16 SCC 680** , that the appellants are entitled to get **Rs.10,000/-** more under the head 'funeral expenses' and **Rs.5,000/-** more under the head 'loss of estate'. It is further submitted that towards 'loss of consortium', ## **M.A.C.A No.2023 of 2012** **& C.O.No.92 of 2015** **==> picture [13 x 9] intentionally omitted <==** no amount was granted by the Tribunal. Going by the status of the appellants, appellants 1 and 2 are the parents of the deceased and they are entitled to Rs.40,000/- each under the head 'loss of parental consortium'. Therefore, **Rs.80,000/-** is granted under this head. 9. It is submitted by the learned counsel for the Insurance Company that towards 'pain and sufferings', Rs.25,000/- was granted by the Tribunal and Rs.15,000/- granted under the head 'love and affection' are not liable to be granted in view of the decision in _**United India Insurance Co. Ltd v. Satinder Kaur**_ **@** ## **Satwinder Kaur and others : 2020 (3) KHC 760.** This submission appears to be convincing and therefore, **Rs.40,000/-** under these heads stands reduced. Thus, the enhanced compensation entitled by the appellants would come to Rs.2,60,000/-. **M.A.C.A No.2023 of 2012 & C.O.No.92 of 2015** **==> picture [13 x 9] intentionally omitted <==** 10. In the result, this appeal is allowed. It is held that the appellants are entitled to get Rs.6,45,200/- as compensation out of which Rs.3,85,000/- was granted by the Tribunal and the balance amount of **Rs.2,60,200/-** (Rupees Two Lakhs Sixty Thousand and Two Hundred Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal payable by the Insurance Company from the date of petition till the date of deposit or realisation. 11. The Company is directed to deposit the amount including court fee as directed by the Tribunal. It is specifically ordered that the Insurance Company – the original 2[nd] respondent is entitled to get the entire award amount along with the accrued interest thereof, to be realised from the 5[th] **M.A.C.A No.2023 of 2012 & C.O.No.92 of 2015** **==> picture [13 x 9] intentionally omitted <==** respondent – the owner of the vehicle, after depositing the same, since it is found that there was violation of policy conditions. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww