M.A.C.A No.2158 of 2011: USMAN v. K. RAJAN & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 16[TH] DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943 MACA NO. 2158 OF 2011** **AGAINST THE AWARD IN O.P(M.V) 857/2003 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL VADAKARA** ## **APPELLANTS/PETITIONERS:** 1 USMAN, S/O.KUNHABDULLA, P.O. VELAM, KALLUMMEL HOUSE, VADAKARA TALUK, KOZHIKODE. 2 MANZOOR, S/O.USMAN, P.O. VELAM, KALLUMMEL HOUSE, VADAKARA TALUK, KOZHIKODE. 3 ABDULLA (MINOR), AGED 11 YEARS S/O.USMAN P.O, VELAM, KALLUMMEL HOUSE, VADAKARA TALUK, KOZHIKODE. 4 MAMMI, S/O.SOOPY, OTTAKANDATHIL HOUSE, P.O.VELAM, VADAKARA TALUK. 5 AYSHA, W/O MAMMI., OTTAKANDATHIL HOUSE, P.O, VELAM, VADAKARA TALUK. BY ADVS. SRI.PRATHEESH.P SRI.K.SIJU ## **RESPONDENTS/RESPONDENTS:** 1 K.RAJAN, S/O.KUNHI ONAKKAN, KALLULATHIL HOUSE, P.O. EYYAMCODE, NADAPURAM- 673 504. (RC OWNER(KL-7U-4689/BUS). - 2 P.P ARAVINDAKSHAN, PARAYULLA PARAMBATH, P.O KAVILUMPPARA, VADKARA TALUK- 673 104. (DRIVER KL-7U-4689/BUS) 2 ## **M.A.C.A No.2158 of 2011** 3 THE MANAGER ORIENTENTAL INSURANCE COMAPNY LTD., SREE NIDHI BUILDING, P.B NO. 27, NARAYANA NAGAR, VADAKARA - 673 101. (INSURANCE KL- 7U-4689/BUS) 4 K.MUNEER, S/O.ABDULLA, KADAVATH HOUSE, P.O VELAM, KUTTIYADI, KOZHIKODE-673 508. DRIVER (KL-11-L-6111/JEEP) 5 THE MANAGER, UNITED INDIA INSURANCE COMPANY LTD., P.B. NO. 17, KALLINGAL BUILDING, MAIN ROAD, VADAKARA- 673 101. (INSURANCE KL-11-L6111/JEEP) BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.M.A.GEORGE SRI.P.JACOB MATHEW SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.2158 of 2011** 3 ## **JUDGMENT** This appeal is at the instance of the petitioners in O.P.(M.V) No.857/2003 on the file of Motor Accident Claims Tribunal, Vadakara. Respondents herein are the respondents before the Tribunal. 2. The petition averments are as follows: One Rukhiya died as a result of a motor accident occurred on 03.03.2003 at 4:30 p.m., while she was travelling in a jeep bearing registration No.KL-11L-6111. The petitioners approached the Tribunal by filing application under Section 166 of the Motor Vehicles Act claiming compensation of Rs.7,00,000/-, alleging negligence against 2[nd] respondent and 5[th] respondent, who were the drivers of bus bearing registration No.KL-7U-4689 and jeep bearing registration No.KL-11L-6111. 3. According to the appellants, the ## **M.A.C.A No.2158 of 2011** **==> picture [7 x 9] intentionally omitted <==** accident was the outcome of negligence on the part of the 2[nd] and 5[th] respondents. 4. Respondents 1 and 2 were set ex-parte by the Tribunal. 5. The 3[rd] respondent filed written statement admitting the policy of bus bearing registration No.KL-7U-4689 but the negligence and quantum were disputed. Respondents 4 and 5 also filed written statement admitting their status as the owner and driver of the jeep bearing registration No.KL-11L-6111. The 6[th] respondent also filed written statement admitting the policy to the jeep bearing registration No.KL-11L-6111, while disputing negligence on the part of the 5[th] respondent and contended that there was violation of policy conditions. 6. The Tribunal tried this Original Petition along with other 9 connected cases and finally rendered verdict on 22.08.2006. The Tribunal found negligence on the part of the 5[th] ## **M.A.C.A No.2158 of 2011** 5 respondent and Rs.2,95,000/- as compensation with 6% interest per annum. As far as liability is concerned, the Tribunal exonerated the 6[th] respondent, the insurer on the finding that there was violation of policy conditions for want of badge to the 5[th] respondent, the driver of jeep bearing registration No.KL-11L-6111. 7. The petitioners, who are the appellants in this appeal disputed the quantum of compensation granted by the Tribunal as well as exoneration granted in favour of the 6[th] respondent, Insurance Company. 8. Heard both sides and perused the records. 9. As regards the quantum of compensation granted by the Tribunal, it is submitted by the learned counsel for the appellants that the Tribunal fixed Rs.2,000/- alone as the monthly income of the deceased though it has been specifically contended by the appellants before the Tribunal that Rukhiya was earning ## **M.A.C.A No.2158 of 2011** 6 Rs.4,500/- per month by doing the job of tailoring. 10. The learned counsel for the contesting respondents submitted that no convincing evidence adduced in this case to substantiate the income claimed and, therefore, the Tribunal is justified in fixing the income at Rs.2,000/per month. 11. In this context, the decision of the Honourable Apex Court in _**Ramachandrappa v.**_ _**Manager, Royal Sundaram Alliance Insurance**_ _**Company Ltd.**_ : **(2011) 13 SCC 236,** has significance, where the Apex Court fixed the income of a coolie at Rs.4,500/-, during the year 2004. Following the ratio, Rs.4,000/- per month can be fixed in this case since the accident is of the year 2003. (Though it is submitted by the learned counsel for the appellants that the accident is of the year 2001 by repeating the mistake in the appeal 7 ## **M.A.C.A No.2158 of 2011** memorandum, the award would go to show that the accident is of the year 2003. Therefore, the monthly income is fixed as Rs.4,000/- though the learned counsel for the appellant submitted the same at Rs.3,000/- treating the accident of the year 2001). That apart, 40% addition is also permissible following the ratio in ## _**National Insurance Company Ltd. v. Pranay Sethi**_ **: (2017) 16 SCC 680** . Therefore, the income for calculating 'loss of dependency' also to be refixed and is calculated as; 4,000+40% = 5,600x12x16x¾ = 8,06,400/- Out of which, Rs.2,72,000/- was granted by the Tribunal. Therefore, **Rs.5,34,400/-** more is entitled by the appellants. 12. The learned counsel for the appellants pressed for granting compensation under the conventional heads also. The Tribunal granted Rs.5,000/- under the head 'loss of consortium' though petitioners 1 to 3 together are entitled ## **M.A.C.A No.2158 of 2011** 8 to get Rs.1,20,000/@ Rs.40,000/- each, following the ratio in _**Pranay Sethi's**_ case (supra). Therefore, **Rs.1,15,000/-** more is granted under the head 'loss of consortium'. 13. Similarly, towards 'funeral expenses' **Rs.13,000/-** more is granted in addition to Rs.2,000/- granted by the Tribunal. No amount granted under the head 'loss of estate'. Therefore, **Rs.15,000/-** more is granted, following the ratio in _**Pranay Sethi's**_ case (supra). 14. The learned counsel for the Insurance Company submitted that Rs.15,000/- granted under the head 'loss of love and affection' liable to be reduced following the ratio in _**United India Insurance Co. Ltd v. Satinder Kaur**_ ## **@ Satwinder Kaur and others : 2020 (3) KHC 760** . Therefore, **Rs.15,000/-** granted under the head 'loss of love and affection' is reduced. 15. The next question to be decided in this ## **M.A.C.A No.2158 of 2011** **==> picture [7 x 9] intentionally omitted <==** case is whether the Tribunal is justified in exonerating the 6[th] respondent, insurer of the offending jeep from liability. 16. It is submitted by the learned counsel for the appellants that as per the decision reported in _**Mukund Dewangan v. Oriental Insurance Company Limited**_ **: 2017 (4) KHC 648** , badge is required to drive a transport vehicle, having unladen weight of 7500 Kg and above. It is true that in a subsequent decision reported in _**Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devi & Others**_ **: 2019 KHC 7367** , the ratio in _**Mukund Dewangan's**_ case (supra) was doubted and the matter referred to a larger Bench and the said reference is still pending. Subsequently, in another decision reported in _**M.S.Bhati v. National Insurance Company Ltd**_ : **2019 KHC 4627** (decided on 29.03.2019) the Apex Court followed _**Mukund Dewangan's**_ case (supra) to assert the point that a transport vehicle ## **M.A.C.A No.2158 of 2011** ## 10 whose gross weight was less than 7500 Kg. which covers the definition of light motor vehicle under Section 2(21) of the Motor Vehicles Act, 1988, does not require a badge. So, the legal position settled in _**Mukund Dewangan's**_ case (supra) still holds the field. 17. Here Ext.B2 is the photocopy of the RC Book in relation to KL-11L-6111 Motor Cab in which the unladen weight is shown as 1225 Kg. Since the weight noted in Ext.B2 is not legible, the learned counsel for the appellants placed a legible copy downloaded from the internet. In the said document also, the unladen weight is shown as 1225 Kg. Thus the weight of the offending vehicle is less than 7500 Kg. This fact is not seriously opposed by the learned counsel for the Insurance Company. 18. Thus, it has to be held that in the case on hand, the Insurance Company is liable to indemnify the insured and, therefore, the ## **M.A.C.A No.2158 of 2011** 11 exoneration granted by the Tribunal is set aside. 19. In the result, the appeal is allowed. It is held that the appellants are entitled to get Rs.9,57,400/- as compensation out of which Rs.2,95,000/- was granted by the Tribunal and the balance amount of **Rs.6,62,400/-** (Rupees Six Lakh Sixty Two Thousand Four Hundred Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the respondents 4 to 6 jointly and severally. The 6[th] respondent, Insurance Company is directed to deposit the entire amount with interest at 6% per annum, from the date of petition till the date of deposit or realisation, excluding the period of 1673 days in filing this appeal as ordered in the order dated 05.03.2015 in C.M.Application No. 3187/2011. 20. The appellant valued the claim at Rs.7,00,000/-. In view of grant of ## **M.A.C.A No.2158 of 2011** 12 Rs.2,57,400/- in excess of the claim, the appellant is bound to deposit Rs.2,574/- as additional court fee. The Insurance Company is directed to deposit Rs.2,574/- as additional court fee by a separate cheque in favour of M.A.C.T., Vadakara and the remaining amount in the name of the appellants in the proportion fixed by the Tribunal within two months from today. On deposit, the appellants are entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww