MACA No.970 of 2013 and CO No.159 of 2021, High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 MACA NO. 970 OF 2013 ``` ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 372/2009 OF MOTOR`** ## **`ACCIDENTS CLAIMS TRIBUNAL,KASARAGOD`** ## **`APPELLANTS/RESPONDENTS 2 AND 3 IN OP(MV):`** - `1 THE PRINCIPAL AGRICULTURAL OFFICER KASARAGOD.` - `2 THE BRANCH MANAGER, DISTRICT INSURANCE OFFICE, IIND FLOOR, MUNICIPAL SHOPPING COMPLEX, OLD BUS STAND, KASARAGOD. BY GOVERNMENT PLEADERSMT.NIMA JACOB` ## **`RESPONDENTS/PETITIONERS AND 1ST RESPONDENT IN OP(MV):`** - `1 PUSHPALATHA.N.,AGED 40 YEARS W/O.(LATE) NARAYANA RAI.N, KARODI (H) NEKRAJE POST & VILLAGE, CHENGALA (VIA), KASARAGOD TALUK & DISTRICT, PIN 671544.` - `2 SUMA.N.,AGED 16 YEARS D/O.(LATE) NARAYANA RAI.N., KARODI (H) NEKRAJE POST & VILLAGE, CHENGALA (VIA), KASARAGOD TALUK & DISTRICT, PIN 671544.` - `3 SUSHMITHA.N.,AGED 14 YEARS D/O.(LATE) NARAYANA RAI.N., KARODI (H) NEKRAJE POST & VILLAGE, CHENGALA (VIA), KASARAGOD TALUK & DISTRICT, PIN 671544.` - `4 SHARATHKUMAR RAI.N.,AGED 12 YEARS D/O.(LATE) NARAYANA RAI.N., KARODI (H) NEKRAJE POST & VILLAGE, CHENGALA (VIA), KASARAGOD TALUK & DISTRICT, PIN 671544.` - `5 VASANTHA SHETTY.K.,S/O.SHEENA SHETTY, R/AT KERI HOUSE, P.O.BADOOR, KASARAGOD DISTRICT, PIN 671321. BY ADV SRI.KODOTH SREEDHARAN` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 08.02.2023, ALONG WITH CO.159/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.970 of 2013 and CO No.159 of 2021 -:2:- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944`** ## **`CO NO. 159 OF 2021`** ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 372/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KASARAGOD`** ## **`CROSS OBJECTOR/ RESPONDENTS:`** - `1 PUSHPALATHA.N.,AGED 40 YEARS W/O.(LATE) NARAYANA RAI.N, KARODI (H) NEKRAJE POST & VILLAGE, CHENGALA (VIA), KASARAGOD TALUK & DISTRICT, PIN 671544.` - `2 SUMA.N.,AGED 16 YEARS D/O.(LATE) NARAYANA RAI.N., KARODI (H) NEKRAJE POST & VILLAGE, CHENGALA (VIA), KASARAGOD TALUK & DISTRICT, PIN 671544.` - `3 SUSHMITHA.N.,AGED 14 YEARS D/O.(LATE) NARAYANA RAI.N., KARODI (H) NEKRAJE POST & VILLAGE, CHENGALA (VIA), KASARAGOD TALUK & DISTRICT, PIN 671544.` - `4 SHARATHKUMAR RAI.N.,AGED 12 YEARS D/O.(LATE) NARAYANA RAI.N., KARODI (H) NEKRAJE POST & VILLAGE, CHENGALA (VIA), KASARAGOD TALUK & DISTRICT, PIN 671544.` ``` BY ADV KODOTH SREEDHARAN ``` ## **`RESPONDENT/S:`** 111 ``` THE PRINCIPAL AGRICULTURAL OFFICER KASARAGOD. ``` ``` THE BRANCH MANAGER, DISTRICT INSURANCE OFFICE, IIND FLOOR, MUNICIPAL SHOPPING COMPLEX, OLD BUS STAND, KASARAGOD. ``` ``` VASANTHA SHETTY.K.,S/O.SHEENA SHETTY, R/AT KERI HOUSE, P.O.BADOOR, KASARAGOD DISTRICT, PIN 671321. ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ``` ``` ON 08.02.2023, ALONG WITH MACA.970/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.970 of 2013 and CO No.159 of 2021 -:3:- ## JUDGMENT Dated this the 8[th] day of February, 2023 Both the appeal as well as the Cross Objection are originated from an award passed by the Motor Accidents Claims Tribunal, Kasaragod on 14.05.2012 in OP(MV) No.372 of 2009. The appellants in the appeal are the 2[nd] and 3[rd] respondents in the Original Petition and are none other than the owner and insurer of a Jeep bearing registration No. KL-14D-3276 which was allegedly involved in the motor accident. The Cross Objection above was filed by the legal heirs and dependents of one Mr.Narayana Rai who succumbed to the injuries sustained in the motor accident and preferred O.P.(MV) No.372 of 2009 seeking compensation for his death. 2. The Tribunal has arrived at Rs.12,53,336/- as the compensation payable in favour of the petitioners, who are the cross objectors before this Court. It directed the 3[rd] respondent insurer of the vehicle to deposit the sum arrived at as above with MACA No.970 of 2013 and CO No.159 of 2021 -:4:- interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation alongwith proportionate costs. 3. Challenge raised in the appeal on hand is mainly against consideration of 42 years as the age of the victim and assessment of compensation by adopting a multiplier relevant to that age as well as fastening of liability on the respondents. In the Cross Objection challenge is against the meagerness in the quantum arrived at by the Tribunal as compensation in favour of the Cross Objectors. Before adverting to the contentions raised by the appellants and the Cross Objectors, it is relevant to have an understanding of the facts of the case in brief. 4. The accident in the case on hand was occurred on 12.05.2009. Mr.Narayana Rai, the deceased in the case on hand, was engaged in election duty and was returning to his house alongwith his colleagues in a Jeep bearing registration No. KL14D-3276. When the vehicle reached at 8[th] Mile in Bovikanam, it hit against a tree standing by the side of the road, whereby Sri.Narayana Rai and two others travelling in the vehicle MACA No.970 of 2013 and CO No.159 of 2021 -:5:- sustained serious injuries. He was taken to Carewell Hospital, Nullippady, Kasaragod, but succumbed to the injuries on that day itself. The accident was allegedly occurred due to the rash and negligent driving of the Jeep by its driver who was arrayed in the Original Petition as the 1[st] respondent. The registered owner and the insurer of the offending vehicle were also arrayed in the Original Petition as the 2[nd] and 3[rd] respondents. Seeking for a compensation of Rs.15,00,000/- from the respondents, the Original Petition above was filed. 5. The 1[st] respondent filed written statement before the Tribunal admitting policy for the Jeep covering the date of accident. It was contended that the accident was occurred not due to his negligence but that of the driver of the Bus proceeding from the opposite side, while attempting to overtake another vehicle in a rash and negligent manner. The Bus hit on the left side of the Jeep and thereby the accident was occurred. The age, occupation and the monthly income of the deceased and the expenditure incurred by him for treatment were denied. Compensation claimed is also disputed for its exorbitant nature. MACA No.970 of 2013 and CO No.159 of 2021 -:6:- 6. In the joint written statement filed by the 2[nd] and 3[rd] respondents also the very same contentions were raised. The insurance coverage of the Jeep at the relevant time of the accident was admitted. Documentary evidence adduced before the Tribunal consists of Exts.A1 to A5. On appreciation of the above evidence, the Tribunal arrived at a finding that the accident was occurred due to the rash and negligent driving of the Jeep by its driver, who is none other than the 1[st] respondent in the Original Petition. The Tribunal also found that on the basis of the injuries sustained in the motor accident and the death of the victim followed that, his legal representatives as claimants before the Tribunal are entitled to get compensation. Rs.12,53,336/- was also arrived at as the total compensation payable. The 3[rd] respondent before the Tribunal being the insurer of the offending vehicle was also fastened with the liability to indemnify the insured by paying the compensation in favour of the petitioners, who are the Cross Objectors before this Court. 7. As already stated, the primary contention raised by the learned Government Pleader on behalf of the appellants was that MACA No.970 of 2013 and CO No.159 of 2021 -:7:- the age of the deceased was taken as 42 years by the Tribunal, without any basis. According to her, in the Original Petition seeking compensation, the claim of the legal representatives was that Sri.Narayana Rai was aged 42 years at the relevant time of his death in the motor accident in question, but, authentic materials were not produced and marked in evidence in proof of it. In the certificate of Postmortem examination marked in evidence as Ext.A3, the age of the deceased was noted as 47 years. But the Tribunal had taken only 42 years as the age of the deceased and calculated compensation on its basis. According to the learned Government Pleader the Tribunal is erred in taking the age of the deceased as 42 years and assessing compensation on its basis. Learned Government Pleader canvassed for a reassessment of compensation for loss of dependency on the basis of Ext.A3 where, the age of the deceased was shown as 47 years. 8. The contention secondly raised by the learned Government Pleader was that the liability has been fastened by the Tribunal on the appellant wrongly. According to her, in MACA No.970 of 2013 and CO No.159 of 2021 -:8:- Ext.A1, the FIR crime was registered particularly against the driver of the Jeep. According to her, since negligence for the accident was alleged against the driver of the Jeep and crime was also registered against him, liability cannot be fastened on the registered owner and insurer of the Jeep as done by the Tribunal. It is further contended by the learned Government Pleader that the salary of the deceased was certified by the Tahsildar, Kasaragod who does not have the authority to certify the same. Accordingly, Ext.A5 salary certificate was sought to be discarded and the monthly income sought to be refixed. 9. The learned counsel for the Cross Objectors has contended that the monthly income was fixed by the Tribunal as Rs.9,336/- on the basis of Ext.A5 and therefore there is no scope for any interference. But it is pointed out that the deceased being of the age 47 years and coming within the age group 40-50, an addition of 30% to the monthly income in consideration of loss of future prospects, is justified. According to him, Tribunal failed to consider that and therefore, interference is called for. MACA No.970 of 2013 and CO No.159 of 2021 -:9:- 10. The learned counsel has also pointed out that the Tribunal failed to award compensation under the conventional heads in accordance with the entitlement of the petitioners for that and therefore, interference is warranted. According to him, the award of compensation under those heads shall be on the basis of the direction of the Apex Court in National Insurance Company Limited v. Pranay Sethi [2017 (4) KLT 662 (SC)]. 11. It is noticed from the impugned award that compensation have been awarded by the Tribunal towards loss of love and affection and pain and suffering, but, the petitioners are not entitled to in view of the direction issued by the Apex Court in various judicial pronouncements. 12. As directed in Pranay Sethi supra, the Cross Objectors being the legal heirs of the deceased are entitled to get Rs.44,000/- each as compensation towards loss of consortium. The deceased in the case on hand being survived by his wife and three children, each of them are entitled to get Rs.44,000/- and thus, Rs.1,76,000/- (Rs.44,000/-x4) is found payable. Petitioners are not entitled to get compensation both under loss MACA No.970 of 2013 and CO No.159 of 2021 -:10:- of consortium and loss of love and affection. Rs.15,000/- each stands awarded by the Tribunal as compensation towards loss of love and affection and loss of consortium are required to be deducted ad therefore petitioner will get only Rs.1,46,000/- as additional compensation under that head. 13. The Tribunal had awarded Rs.10,000/- and Rs.15,000/respectively as compensation under the heads funeral expenses and loss of estate. The petitioners being entitled to get Rs.16,500/- each under those heads and when granted accordingly, will get Rs.6,500/- and Rs.1,500/- respectively as additional compensation. 14. Compensation for loss of dependency was calculated by the Tribunal applying the multiplier as 14. As per Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] the multiplier liable to be taken in the case on hand is 13. 30% ought to have been added to the monthly income in consideration of loss of future prospects and 1/4[th] ought to have been deducted therefrom in consideration of the personal expenditure to be met with by the deceased, had he been alive. MACA No.970 of 2013 and CO No.159 of 2021 -:11:- 15. The Tribunal had taken Rs.9,336/- as the monthly income of the deceased on the basis of Ext.A5 salary certificate. Since Ext.A5 is issued by the Tahsildar, Kasaragod and the deceased being a village man working under him, the challenge on authority of the Tahsildar to issue Ext.A5 raised by the learned Government Pleader is untenable and therefore is discarded. 30% is added to Rs.9,336/- in consideration of future prospects and thereby Rs.12,136/- is arrived at. 16. When compensation for loss of dependency is reassessed on the basis of the monthly income fixed as above and multiplied by 12 and 13, the multiplier and 1/4[th] deducted therefrom, the petitioner will get Rs.14,19,912/- (Rs.12,136/- x 12 x 13) -1/4) as compensation. Rs.11,76,336/- stands awarded by the Tribunal under the head when adjusted in the sum now arrived at as compensation, Cross Objectors will get Rs.2,43,576/- as additional compensation. 17. The Tribunal has awarded Rs.20,000/- towards pain and suffering. Petitioners being the legal representatives are not entitled to get compensation for pain and suffering suffered by MACA No.970 of 2013 and CO No.159 of 2021 -:12:- the deceased. Therefore Rs.20,000/- is required to be deducted from the total sum now arrived at as additional compensation. Thus, the Cross Objectors will get Rs.3,77,576/-(Rupees Three lakhs seventy seven thousand five hundred and seventy six only) (Rs.3,97,576/- – Rs.20,000/-) as additional compensation. The said sum 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. The 3[rd] respondent being the insurer shall deposit the above sum with interest fixed as above, within a period of two months from the date on a certified copy of this judgment is received. 18. A contention was raised by the learned Government Pleader on behalf of the appellants that liability cannot be fastened on the appellants since the crime stands registered in Ext.A1 against the driver of the Jeep for rash and negligent driving. When the crime stands registered and a Final Report stands laid against the driver, the appellants being the owner and insurer of the Jeep cannot claim exoneration from liability. The Tribunal has fastened the liability on all respondents jointly and MACA No.970 of 2013 and CO No.159 of 2021 -:13:- severally. Interference with the fixation of liability is totally unwarranted on the basis of the arguments advanced by the appellants. Both MACA and Cross Objection are allowed in part accordingly. Sd/MARY JOSEPH, JUDGE. ttb