MACA Nos. 1151 of 2014 & 2877 of 2015

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940 MACA.No. 1151 of 2014 AGAINST THE AWARD IN OPMV 218/2009 of SPL.COURT FOR EC ACT CASES &MACT,TSR DATED 07-10-2013 APPELLANT(S)/PETITIONERS: - 1 SMT.SANTHA - W/L.LATE GOPI, AGED 45 YEARS. - 2 VIDHU, - D/O.LATE GOPI, AGED 25 YEARS. - 3 VISHNU S/O.LATE GOPI, AGED 23 YEARS. - ALL ARE RESIDING AT MANKUZHI HOUSE, - P.O.PULLAZHI, CHETTUPUZHA, THRISSUR DISTRICT. BY ADVS.SRI.T.C.SURESH MENON - SRI.A.R.NIMOD ## RESPONDENT(S)/RESPONDENTS: 1. MANOJ P.K. S/O.KANNAN, RESIDING AT SSS BUILDING, A.V.ROAD, CHAMRAJPET, BANGALORE, KARNATAKA STATE, NOW RESIDING AT FLOOR NO.625/1, POOVATHUMKADAVIL HOUSE, MATHILAKAM POST, KODUNGALLUR, THRISSUR DISTRICT, PIN 680 685. 2. MOHANAN, S/O.RAMAKRISHNAN, RESIDING AT PALLIMAKKAL HOUSE, P.O.ANTHIKKAD, THRISSUR DISTRICT, PIN 680 641. 3. M/S.CHOLAMANDALAM GENERAL INSURANCE COMPANY LIMITED, THRISSUR-680 001. R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW R1-R2 BY ADV. SRI.C.HARIKUMAR R1-R2 BY ADV. SRI.RENJITH RAJAPPAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2018, ALONG WITH M.A.C.A.NO.2877 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG ## **K.VINOD CHANDRAN, J.** ---------------------------------------------------------------M.A.C.A.Nos.1151 of 2014 & 2877 of 2015 ----------------------------------------------------------------Dated this the 1[st] day of August, 2018 ## J U D G M E N T Appeals are filed by the claimants before the Tribunal as also owner of the vehicle involved in the accident. The owner of the vehicle has filed an appeal against the finding of the Tribunal that the driver had no license at the time of accident. Both the appeals were heard together. 2. There are many factors arising in the owner's appeal, which would require appropriate evidence to be adduced. In such circumstances, there has to be a remand in the said matter is the contention raised by the learned counsel appearing for the owner. However, before considering the said matter, the appeal of the claimants can be considered, since it is for enhancement. It is trite that if the Insurance Company claims to be absolved from the indemnification, on the basis of there being no valid license, then under Section 149(4) of the Motor Vehicles Act, the company will have to satisfy the award but effect recovery from the owner. 3. The claimants are the wife and two children of the deceased-injured. The Tribunal awarded compensation on the basis of the evidence adduced. However, claimants contend that they should be granted enhancement. First contention is M.A.C.A.No.1151/14 & 2877/15 2 with respect to the the age of the deceased. It is submitted that the age of the deceased was asserted to be 40 in the claim petition itself. The Tribunal had taken the age above 45 and applied the consequential multiplier of 13. It is the contention of the claimants that without any contra evidence the multiplier applied should have been 14, taking the age as between 40 and 45. There is another contention raised that the claimant had produced a salary certificate dated 10.12.2008 indicating that the deceased was working as a mechanic in one Sree Krishna Auto Garage and that he was drawing a monthly salary of 7,500/-. The Tribunal adopted a₹ monthly salary of only 4,000/-. The future prospectus was₹ also not taken into consideration. There is also a claim raised for compensation for loss of consortium to the wife and loss of estate to all the claimants. 4. Considering the age of the deceased, it has to be stated that there was absolutely no evidence placed before the Tribunal but for the assertion made that the deceased was 40 years old. However, it is evident from the award of the Tribunal that the first son of the petitioner was aged 20 and his wife is aged 40. Hence, it is highly improbable that the deceased was aged 40. If it is so taken then it would indicate M.A.C.A.No.1151/14 & 2877/15 3 that he had entered into a marriage when he was not competent so to do. In such circumstances, this Court does not find any reason to interfere with the approximate age as taken by the Tribunal, being between 45 and 50 and the multiplier as also future prospectus would have to be applied on that count. 5. With respect to the salary of the deceased again but for production of a salary certificate in the letter pad of the workshop, none was examined to prove it. The proprietor could have been called to the box to prove the said document, which was not done. Hence, no reliance can be placed on the salary certificate. However, it is to be noticed that the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.** **[(2011) 13 SCC 236]** had in the year 2004, adopted the notional income of a 'coolie' at 4,500/-. The instant accident₹ occurred in the year 2008 and since there is no specific contravention of the claim that the deceased was a mechanic, the notional income is fixed at 6,500/- per month. The₹ multiplier to be applied is 13 and the future prospectus would be 25%. The annual income of the deceased for calculating loss of dependency has to be: 6,500+1625 (25% of 6,500). M.A.C.A.No.1151/14 & 2877/15 4 The loss of dependency, hence, would be 8,125 * 12 *13₹ *2/3=₹8,45,000/-. Further enhancement is under the head loss of consortium and loss of estate, which has to be 40,000/-₹ and 15,000/- as per ₹ **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (5) KHC 350].** Hence, there would be an enhancement of 4,29,000/- under the head₹ loss of dependency and 45,000/- under the head of loss of₹ consortium and loss of estate. The additional amount would be paid to the petitioner @ interest as directed by the Tribunal from the date of application. M.A.C.A.No.1151 of 2014 is allowed with the above modification and enhancement. 6. M.A.C.A.No.2877 of 2015 is the appeal of the owner contending that there is a license valid at the time of the accident. The Tribunal looked at Ext.B1 copy of the licence produced by the owner itself and found that the original date of issue was 18.09.1984 and the same was renewed on 15.12.2008. The accident occurred on 21.11.2008. The Tribunal's finding cannot be interfered with, since if the license had been regularly renewed in time then necessarily the subject renewal would also have been on 18.09.2008, since the license would have expired on 17.09.2008. As per the Motor Vehicles Act, if the license is renewed within one M.A.C.A.No.1151/14 & 2877/15 5 month from the said date then necessarily it has to be considered as valid from the date of expiry itself. In the present case looking at the dates, the license is seen to have been renewed after three months from the date of expiry, in which event the renewal would be applicable only from that date. 7. The appellant, registered owner has produced a number of documents before this Court in an attempt to substantiate the same. It is prayed that there be a remand so that the documents could be produced and proved before the Tribunal. The owner of the offending vehicle had ample opportunity to produce the details before the Tribunal itself and unless the documents are credible prima facie this Court is not convinced that there should be a remand. The extract of a driving license is produced as Annexure A3 along with I.A.No.3297 of 2017. The said document does not indicate on which date the validity expired and whether there was a valid license as on 21.11.2008, the date on which the accident occurred. The learned counsel would then rely on Annexure A4 document produced along with I.A.No.3675 of 2017. Annexure A4 document shows that the driver had a valid license between 27.12.2005 to 22.12.2008. Annexure A4 M.A.C.A.No.1151/14 & 2877/15 6 document would be quite contrary to Ext.B1 produced before the Tribunal because if the driver had a valid license between 27.12.2005 to 22.12.2008, the same would have been produced before the Tribunal and there is no question of a renewal on 15.12.2008 when admittedly the driver had a valid license till 22.12.2008. Even if, as permitted under the Motor Vehicles Act, a renewal application was made before the expiry of the license then necessarily renewal would have been from the date of expiry and not from the date of application. In fact, Ext.B1 and Annexure A4 raises a suspicion as to the 4[th] respondent having a valid license at the time of the accident. There can be no credence attached to Annexure A-4. This Court also cannot but observe, looking at the photographs as seen from Annexure A3 and Ext.B1 as also the original driving license produced as Annexure A5 before this Court in I.A.No.636 of 2018 that they differ materially. Photographs in Ext.B1 and Annexure A5 are identical but that in Annexure A3 shows a totally different person. In such circumstances, this Court does not find any reason to remit the matter back to the Tribunal. The owner/appellant has failed to convince this Court that the documents are credible prima facie. M.A.C.A 2877 of 2015 is hence dismissed. M.A.C.A.No.1151/14 & 2877/15 7 The insurance company shall satisfy the award with interest as directed by the Tribunal within two months from the date of receipt of the certified copy of this judgment and shall then be entitled to recover the amount from the registered owner of the vehicle. The deponent of the affidavit accompanying I.A.No.636 of 2018 shall be entitled to take back the licence in original produced as Ext.A5. The Registry shall retain a copy of the same. Ordered accordingly. Sd/- ## **(K.VINOD CHANDRAN, JUDGE)** True copy P.A to Judge DG