MACA Nos. 1177/2014 & C.O.148/2018

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944 ``` ## **`MACA NO. 1177 OF 2014`** ## **`AGAINST THE AWARD IN OP(MV)NO.120/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI`** ## **`APPELLANT:`** ``` THE ORIENTAL INSURANCE COMPANY LIMITED THODUPUZHA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS:`** - `1 MARIYAMMA JOSEPH W/O LATE JOSEPH, KUNNEL NOTTUKADAVIL, PANDAKAN, EDATHWA P.O., MARIYAPURAM, LAPPUZHA DISTRICT, PIN:688 320.` - `2 VARGHESE JOSEPH S/O LATE JOSEPH, KUNNEL NOTTUKADAVIL, PANDAKAN, EDATHWA P.O., MARIYAPURAM, ALAPPUZHA DISTRICT, PIN:688 320.` - `3 SCARIA JOSEPH S/O LATE JOSEPH, KUNNEL NOTTUKADAVIL, PANDAKAN, EDATHWA P.O., MARIYAPURAM, ALAPPUZHA DISTRICT, PIN:688 320.` - `4 MATHEW JOSEPY S/O LATE JOSEPH, KUNNEL NOTTUKADAVIL, PANDAKAN, EDATHWA P.O., MARIYAPURAM, ALAPPUZHA DISTRICT, PIN:688 320.` - `5 JESSY JAMES D/O LATE JOSEPH, POOMANGALAM, THAKAZHI, KELAMANGALAM P.O.,ALAPPUZHA DISTRICT, PIN:688 320` - `6 JANCY GEORGE D/O LATE JOSEPH, ARASARKADAVU, PARAVOOR P.O., PUNNAPRA, ALAPPUZHA DISTRICT – 688320.` - `7 GIJI S/O VARGHESE, KALAYIL HOUSE, MALAPARAMBA, PALACHODE P.O., MALAPPURAM DISTRICT, PIN:676 318.` ``` MACA Nos.1177/2014 & C.O.148/2018 ``` ``` 2 ``` ``` 8V.ABDU VALIYAKADAN HOUSE, KADUNGAPURAM P.O., MALAPPURAM DISTRICT, PIN:676 318. 9UNITED INDIA INSURANCE COMPANY LIMITED PEECHI COMPLEX, CALICUT ROAD, PERINTHALMANNA P.O., PIN:676 315. BY ADVS. SRI.JUVAIZE MUHAMMED SRI.NAVEEN THOMAS SRI.T.P.PRADEEP SRI.P.K.SATHEES KUMAR ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2023, ALONG WITH CO.148/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1177/2014 & C.O.148/2018 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944 CO NO. 148 OF 2018`** ## **`AGAINST THE AWARD IN O.P(MV)NO.120 OF 2006 ON THE FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANCHERI.`** ## **`PETITIONERS:`** - `1 VARGHESE JOSEPH, S/O LATE JOSEPH, KONNEL NOTTUKADAVIL, PANDAKAM, EDATHWA P.O., MARIYAPURAM, ALAPPUZHA DISTRICT.` - `2 SCARIA JOSEPH, S/O LATE JOSEPH, KONNEL NOTTUKADAVIL, PANDAKAM, EDATHWA P.O., MARIYAPURAM, ALAPPUZHA DISTRICT.` - `3 MATHEW JOSEPH, S/O LATE JOSEPH, KONNEL NOTTUKADAVIL, PANDAKAM, EDATHWA P.O., MARIYAPURAM, ALAPPUZHA DISTRICT.` - `4 JESSY JAMES,` - `D/O LATE JOSEPH, KONNEL NOTTUKADAVIL, PANDAKAM, EDATHWA P.O., MARIYAPURAM, ALAPPUZHA DISTRICT.` - `5 JANCY GEORGE, S/O LATE JOSEPH, KONNEL NOTTUKADAVIL, PANDAKAM, EDATHWA P.O., MARIYAPURAM, ALAPPUZHA DISTRICT. BY ADV SRI.T.P.PRADEEP` ## **`RESPONDENTS:`** - `1 THE ORIENTAL INSURANCE COMPANY LIMITED, THODUPUZHA, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18.` - `2 GIJI, S/O.VARGHESE, KALAYIL HOUSE, MELAPARAMBA, PALACHODE P.O., MALAPPURAM DISTRICT-679338.` - `3 V.ABDU, VALIYAKADAN HOUSE, KADUNGAPURAM P.O., MALAPPURAM DISTRICT-679321.` - `4 UNITED INDIA INSURANCE COMPANY LIMITED, PEECHI COMPLEX, CALICUT ROAD, PERINTHALMANNA P.O., MALAPPURAM DISTRICT-679322.` ``` MACA Nos.1177/2014 & C.O.148/2018 ``` ``` 4 ``` ``` BY ADVS. P.JACOB MATHEW JOHN JOSEPH VETTIKAD NAVEEN THOMAS ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2023, ALONG WITH MACA.1177/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1177/2014 & C.O.148/2018 ``` ``` 5 ``` ## **`JUDGMENT`** Among the afore two cases, MACA No. 1177/2014 has been filed by the Oriental Insurance Company Limited (‘Insurance Company’, for short), impugning the Award of the Motor Accidents Claims Tribunal, Manjeri (‘Tribunal’, for short) in OP(MV)No.120/2006, asserting that the compensation arrived at thereunder is illegal and that the claimants were not entitled to any amount as claimed. 2. While so, C.O.No.148/2018 has been filed by the claimants, impugning the same Award solely on the ground that it has not granted interest on the compensation awarded. 3. The facts involved are not in dispute. 4. Compendiously, Joseph was killed in a road accident on 22.05.2005, when the motorcycle on which he was riding pillion was hit by the offending lorry. He fell down and sustained fatal injuries. The Police chargesheet found the motorcycle rider to be negligent. 5. It transpires that the claimants/Cross Objectors then appeared before a Lok Adalat and are alleged to have settled their claim with the insurer of the motorcycle for a certain amount, but the said Insurance Company filed W.P.(C)No.11841/2009 before this Court refusing their liability. This writ petition was allowed and the ``` MACA Nos.1177/2014 & C.O.148/2018 ``` ``` 6 ``` matter was remanded to the Tribunal; whereupon the claimants moved an application to amend the claim petition, to bring their claim under Section 163 A of the Motor Vehicles Act (‘MV Act’ for short), based on which, the learned Tribunal has now awarded an amount of Rs.5,44,500/- as compensation. 6. The appellant - Insurance Company alleges that the amendment allowed to be carried out by the claimants before the Tribunal was illegal; and further that, even assuming that Section 163 A of the ‘MV Act’ would have been attracted, not more than Rs.6 Lakhs could have been awarded and 1/3rd of it ought to have been deducted, as per the provisions of the II Schedule to the said Act. 7. As said above, the Cross Objectors, on the other hand, say that they are entitled to interest on the amount awarded by the Tribunal from the date of claim until it is realized. 8. I have heard Sri.P.Jacob Mathew – learned counsel for the appellant – Insurance Company and Sri.T.P.Pradeep learned counsel appearing for the Cross Objectors. 9. Sri.P.Jacob Mathew vehemently argued that when the Police Charge Sheet found the rider of the motor cycle to be fully rash and negligent - thus causing the accident, no liability could have been sought against the lorry which his client had insured. He argued that ``` MACA Nos.1177/2014 & C.O.148/2018 ``` ``` 7 ``` the learned Tribunal ought not to have allowed the amendment of the claim petition and thus prayed that this appeal be allowed. 10. As an alternative submission, Sri.P.Jacob Mathew then argued that, even assuming that a claim under Section 163 A of the MV Act is tenable, not more than Rs.4 Lakhs could have been awarded, since 1/3rd ought to have been deducted by the Tribunal, while allowing any claim under the II Schedule to the said Act. 11. Contrary to this, Sri.T.P.Pradeep argued that the compensation awarded by the Tribunal is without error and asserted that it ought to have granted interest on the compensation from the date of claim until it is realized. 12. I have considered the afore rival submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. 13. As I have already seen above, the facts, or the evidence on record, are not in dispute. 14. The primary question raised by the appellant is whether an amendment, as allowed by the Tribunal, could have been permitted. I notice that this amendment was allowed by the Tribunal consequent ## **`MACA Nos.1177/2014 & C.O.148/2018`** to the remand of the Original Petition by this Court through the judgment in W.P(C)No.11841 of 2009. As noticed above, said writ petition had been filed by the United India Insurance Company Ltd. - which is the insurer of the motor cycle in which the deceased was riding pillion, and it was allowed by this Court remanding the matter to the Tribunal. This was done, after adverting to the specific case of United India Insurance Company that the alleged settlement between them and the claimants/Cross Objectors in a Lok Adalath was incompetent and not binding on them. Obviously, therefore, the learned Tribunal was then obliged to consider the Original Petition on its merits. 15. It is at this stage that an application was moved by the Cross Objectors for amending the claim petition, to bring it under Section 163A of the “MV Act”, which was allowed without being objected to by the Insurance Company at that time. They did not file any proceedings objecting to the said amendment; and in any event, as matters now stand, such an amendment was certainly possible and permissible as per the binding precedents that cover the field. In fact, to a pointed question from this Court, this was conceded by the Insurance Company also. 16. Coming to the question of compensation awarded by the ## **`MACA Nos.1177/2014 & C.O.148/2018`** ``` 9 ``` Tribunal, there is great force in the submissions of Sri.P.Jacob Mathew because, even assuming that the calculations ought to be done reckoning the annual income of the deceased to be Rs.40,000/- - - guided by the judgment of this Court in _**Abdulla and Another v.**_ - _**Abdulkhader Kunju and Others [2011 (3) KHC 922]**_ the maximum that could have been awarded as per the II Schedule to the “MV Act” is Rs.6 Lakhs. Statutorily, an amount of 1/3rd ought to have been deducted from this. Therefore, not more than Rs.4 Lakhs could have been granted; and to that extent, the impugned Award is certainly incapable of approval. 17. That said, even when the Insurance Company asserts that, taking the annual income of the deceased to be Rs.39,000/- only an amount of Rs.5,40,000/- could have been granted, it is limpid that this is contrary to the principles settled by this Court in _Abdulla_ (Supra). This is because, it has been unequivocally declared that when the income falls within two classes mentioned in the II Schedule of the “MV Act”; the higher one will have to be adopted. In the case at hand, the compensation referable to the annual income of Rs.40,000/will certainly, therefore, have to be adopted. 18. Finally, on the question of interest, I cannot find the submissions of the Cross Objectors to be tenable because it is ``` MACA Nos.1177/2014 & C.O.148/2018 10 ``` admitted that they moved the amendment only in the year 2013, which was allowed on 17.08.2013. Obviously, interest could have been granted only from that date, at the best. However, taking note of the fact that this was an amendment which was allowed pending _lis_ , I am of the firm view that interest could be allowed only from the date of the Award and not earlier. In the afore circumstances, these matters are disposed of in the following manner: (a) MACA No.1177 of 2014 is allowed, reducing the quantum of compensation to Rs.4 Lakhs, but retaining Rs.2,000/- towards ‘Funeral Expenses’ and Rs.2,500/- towards ‘Loss of Estate’, as has been grated by the learned Tribunal. (b) Cross Objection No.148 of 2018 is allowed, granting interest on the afore mentioned compensation at the rate of 7% per annum, from the date of Award of the Tribunal until it is realized. Needless to say, while computing the interest as afore, a period of 1477 days - being the delay in filing the Cross Objections - shall stand excluded. Sd/- ## **`DEVAN RAMACHANDRAN JUDGE`** ``` MC ```