M.A.C.A No.2634 of 2012

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, 1944 ``` ``` MACA NO. 2634 OF 2012 ``` ``` AGAINST THE AWARD DATED 17.10.2011 IN OP(MV)NO.528/2007 OF MOTOR ``` ``` ACCIDENTS CLAIMS TRIBUNAL, KASARAGOD ``` ## `APPELLANTS/CLAIMANTS:` ``` 1P.V.KANNAN, AGED 60 YEARS, S/O.LATE KUNHAMBU K.V., RESIDING AT THAIKADAPURAM, THAIKADAPURAM P.O., NILESHWAR VILLAGE, KASARAGOD DISTRICT. 2T.K.JANAKI, AGED 50 YEARS, W/O.P.V KANNAN, RESIDING AT THAIKADAPURAM, THAIKADAPURAM P.O., NILESHWAR VILLAGE, KASARAGOD DISTRICT. BY ADVS.SRI.JAWAHAR JOSE SMT.CISSY MATHEWS ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1BIJU P.V. S/O.M.GOPALAN, RESIDING NEAR BOAT JETTY, THAIKADAPURAM P.O , NILESWAR VILLAGE, KASARAGOD DISTRICT PIN-671 314 2THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, P.B No.29, 2ND FLOOR NITHYANANDA BUILDING, KOTTACHERRY, KANHANGAD, PIN - 671 315 R1 BY ADVS.SRI.T.K.VIPINDAS SMT.P.K.PRIYA R2 BY ADV. SRI.S.K.AJAY KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A No.2634 of 2012 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 15[th] day of December, 2022** The appeal on hand is filed challenging an award passed by Motor Accidents Claims Tribunal, Kasaragod (for short ‘the Tribunal’) on 17.10.2011 in O.P.(MV ) No.528/2007. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 and 2 in accordance with their status in the Original Petition. 3. The appellants are none other than the petitioners before the Tribunal. They are the legal representatives of one Mr.Madhu T.K. who sustained injuries in a motor accident occurred at 6 p.m. on 27.04.2007 and succumbed to the injuries forthwith. The claim of the petitioners was that Mr.Madhu was travelling in an autorickshaw bearing Registration No.KL 60/929 and due to the rash and negligent driving of the Autorickshaw it capsized at Kotrachal and thereby he sustained injuries. It is further alleged that the deceased was carrying fish from Thaikadappuram to Nileshar ``` M.A.C.A No.2634 of 2012 ``` ``` 3 ``` Market in the goods autorickshaw, and while returning from Nileshwar Market after unloading the fish there, the vehicle capsized. It is further alleged that the motor accident was occurred due to the rash and negligent driving of the goods autorickshaw by its driver. A sum of Rs.3,00,000/- was claimed as compensation from the driver cum owner and insurer of the goods autorickshaw, arrayed as respondents 1 and 2, jointly and severally. The 1[st] respondent was served with notice in the Original Petition but did not turn up to contest the same and accordingly was declared _ex-parte_ . The 2[nd] respondent has filed written statement as well as additional written statement in the Original Petition. 4. In the written statement filed the third respondent has admitted the insurance coverage of the goods autorickshaw with them as on date of motor accident. But it was contended that the deceased being a gratuitous passenger in the goods vehicle is not covered under the policy issued by the 2[nd] respondent, for want of payment of premium under the policy to cover the risk. It was further contended that the Registration Certificate of the vehicle, the Driving ``` M.A.C.A No.2634 of 2012 ``` ``` 4 ``` Licence and the Badge, the driver of the goods autorickshaw was holding at the relevant time were not produced. It was contended that the driver of the goods autorickshaw was not having the authorisation to drive the same and by permitting him to drive the vehicle, the insured has violated the policy conditions. The compensation claimed was also disputed for its exorbitance. 5. In the additional written statement filed, the 2[nd] respondent has contended that the 1[st] respondent, the owner-cum-driver had purchased the vehicle under hire purchase scheme from Sri.Ram Finance and was earning his livelihood by plying it. Therefore there was no chance for him to employ anybody. It was further contended that the petitioners have omitted to state anything in the Original Petition about the employer of the deceased. 6. Before the Tribunal evidence was adduced by both parties. On the side of the petitioners, the 1[st] petitioner was examined as PW1 and some documents were marked in evidence as Exts.A1 to A3. On the side of the 2[nd] respondent, Exts.B1 and B2 were marked. The Original Petition being filed ``` M.A.C.A No.2634 of 2012 ``` ``` 5 ``` under Section 163-A of the Motor Vehicles Act, 1988 (for short ‘the M.V.Act’) the petitioners are without any obligation to establish negligence on the part of the driver of the vehicle. However, the goods autorickshaw was found involved in the motor accident by the Tribunal. The Tribunal had also assessed the compensation payable on the basis of the 2[nd] Schedule of the M.V.Act. The Tribunal had also fixed the monthly income of the deceased as Rs.2,500/- for calculation of compensation for dependency. 7. The learned counsel for the petitioners contended that the monthly income was not fixed by the Tribunal correctly. According to him, the motor accident was occurred in the year 2007 and the fixation of Rs.2,500/- as the monthly income was not based on the cost of living and price index prevailing then. The learned counsel canvassed for fixation of the monthly income on a proportionate basis in tune with the fixation of the monthly income by the Apex Court in the case of a coolie worker in **Ramachandrappa vs. Royal Sundaram Alliance Insurance Co. Ltd. [(2011) 13 SCC 236],** while assessing compensation for injuries sustained by ``` M.A.C.A No.2634 of 2012 ``` ``` 6 ``` him in the year 2004. The monthly income fixed being low, this Court re-fixes it as Rs.3,333/- being the maximum that could be considered under Section 163-A M.V. Act. This Court cannot go beyond that since the upper cap of annual income that can be considered for being entitled to claim compensation under Section 163A M.V. Act is Rs.40,000/-. 18 adopted by the Tribunal as multiplier being correct for the age of 26 years is maintained. The deceased being aged 26 years and having Rs.40,000/- as the annual income, as per the 2[nd] Schedule, his legal representatives are entitled to get Rs.6,80,000/- as compensation for dependency. 1/3[rd] when deducted from the above sum, in consideration of the personal expenditure of the deceased, Rs.4,53,334/(Rs.6,80,000/- - 1/3[rd] of Rs.6,80,000/-) is arrived at. Rs.2,70,000/- stands awarded by the Tribunal when deducted, the petitioner will get Rs.1,83,334/- as additional compensation under that head. The Tribunal has awarded Rs.2,000/- and Rs.2,500/- respectively as compensation towards Transportation expenses and funeral expenses. The Original Petition having being filed under Section 163A MV ``` M.A.C.A No.2634 of 2012 ``` ``` 7 ``` Act, the petitioners are entitled to get Rs.2,500/- and Rs.2,000/- respectively as compensation towards loss of estate and Funeral Expenses. Therefore, Rs.2,000/- stands mistakenly granted under the head transportation expenses is adjusted as compensation towards loss of estate. When calculated in the above manner, the petitioner will get Rs.1,83,334/- as additional compensation, which will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 8. The Tribunal found on the basis of the evidence on record that the deceased was a gratuitous passenger in the goods autorickshaw. It is noticed that oral evidence has been adduced by the 1[st] petitioner as PW1. The 1[st] petitioner was none other than the father of the deceased. During the course of examination, PW1 has stated that the deceased was working under Mr.Biju who is none other than the owner-cumdriver of the goods autorickshaw and has travelled in that vehicle in the capacity as an agent of Mr.Biju. It was further come out from the oral evidence tendered by PW1 that the motor accident was occurred while he was returning to ``` M.A.C.A No.2634 of 2012 ``` ``` 8 ``` Neeleswaram Market after unloading the fish from the vehicle there. Therefore, the attempt of petitioners was to bring on record that the deceased was an employee of Mr.Biju and was returning in the vehicle after unloading the fish belonging to Mr.Biju from the vehicle on his behalf. 9. The Tribunal has referred in the impugned award that what has been brought out in evidence by PW1 does not have the support of pleadings in the Original Petition. In a scrutiny of the Original Petition it was found that against the column meant to name the employer of the deceased, it was typed as “not applicable”. Therefore, it seems that at the time of filing of the Original Petition, the petitioners have no claim that the deceased was working under Mr.Biju. It was brought out only while evidence was adduced. The question is whether evidence adduced without any pleadings being raised, is admissible or not. This Court is inclined to take a view that when there was no claim for the petitioners originally that the deceased was working under Mr.Biju as his agent, the evidence adduced in that manner being irrelevant and inadmissible is only liable to discarded. In the above ``` M.A.C.A No.2634 of 2012 ``` ``` 9 ``` context, this Court is inclined to endorse the view taken by the Tribunal that the deceased was only a gratuitous passenger in the goods autorickshaw at the relevant time of his death. Thus the finding of the Tribunal that the 2[nd] respondent is not liable to indemnify the insured is maintained. The 1[st] respondent being the owner-cum-driver of the goods autorickshaw shall pay the additional compensation now arrived at with interest fixed on it for the period, except 294 days, being the delay occurred in filing the appeal on hand, within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. MACA stands allowed in part accordingly. Sd/- ## **MARY JOSEPH** **JUDGE** MJL