MACA Nos. 2327/2013 and 969/2014, High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 MACA NO. 2327 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 612/2008 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 01.08.2013 APPELLANT/1ST RESPONDENT:`** ``` SUKUMARAN E.B. ENCHIKALAYIL HOUSE,VAZHAKULAM P.O, MANJALLOOR,MUVATTUPUZHA ``` ``` BY ADV SRI.T.K.KOSHY ``` ## **`RESPONDENTS/RESPONDENTS 2 & 3:`** ``` 1SAJIKUMAR S/O.BALAKRISHNAN,KURUPALAKAL HOUSE, KALLORKAD KARA,KALLORKAD VILLAGE. ``` - `2 THE ORIENTAL INSURANCE CO.LTD MARKET ROAD,MUVATTUPUZHA BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP ``` ``` FOR HEARING ON 15.03.2023, ALONG WITH MACA.969/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA Nos.2327/13 & 969/14 -:2:- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 ``` ## **`MACA NO. 969 OF 2014`** ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 612/2008 OF MOTOR ACCIDENT CLAIMS`** ## **`TRIBUNAL, MUVATTUPUZHA DATED 01.08.2013`** ## **`APPELLANTS/PETITIONERS:`** ``` 1PAULOSE, S/O. PALLY,AGED 57 YEARS ARYAPPILLIL HOUSE, KOZHIPPILY KARA, VARAPPETTY VILLAGE, ERNAKULAM DISTRICT. 2MARIYAMMA AGED 51 YEARS,W/O.PAULOSE, ARYAPPILLIL HOUSE, KOZHIPPILY KARA, VARAPPETTY VILLAGE, ERNAKULAM DISTRICT. 3ABY PAUL AGED 26 YEARS,S/O.PAULOSE, ARYAPPILLIL HOUSE, KOZHIPPILY KARA, VARAPPETTY VILLAGE, ERNAKULAM DISTRICT. 4SALU PAUL SALOMI AGED 24 YEARS,D/O.PAULOSE, ARYAPPILLIL HOUSE, KOZHIPPILY KARA, VARAPPETTY VILLAGE, ERNAKULAM DISTRICT. BY ADV DR.ABRAHAM P.MEACHINKARA ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SUKUMARAN E.B. ENCHIKALAYIL HOUSE, VAZHAKULAM P.O., MANJALOOR, MUVATTUPUZHA - 686 670. ``` ``` 2SAJIKUMAR S/O.BALAKRISHNAN, KURUPALACKAL HOUSE, KALLPPRKAD KARA, KALLOORKAD VILLAGE - 686 668. 3THE ORIENTAL INSURANCE CO. LTD. MARKET ROAD, MUVATTUPUZHA, PIN: 686 673 BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SRI.T.K.KOSHY SMT.V.V.RISANI ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION`** ``` ON 15.03.2023, ALONG WITH MACA.2327/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA Nos.2327/13 & 969/14 -:3:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 2327 of 2013 & M.A.C.A. No. 969 of 2014 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of March, 2023 ## JUDGMENT Both these appeals are originated from an award passed by Motor Accidents Claims Tribunal, Muvattupuzha (for short 'the Tribunal') on 01.08.2013 in O.P(M.V) No.612/2008. For the sake of convenience, the parties to these appeals will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the Original Petition. 2. The appellant in M.A.C.A.No.2327/2013 is none other than the owner of the offending vehicle was arrayed in the Original Petition as the 1[st] respondent. The grievance of the 1st respondent was that the Tribunal had permitted to recover the compensation amount stands awarded by it from him after depositing the same in favour the petitioners. 3. The facts of the case in brief are to the following effect. At about 9.40 p.m. on 28.07.2007, Mr.Eldhose Paulose was riding a motorcycle bearing registration No.KL-6/C 3338 MACA Nos.2327/13 & 969/14 -:4:- through Muvattupuzha-Ernakulam National Highway from east to west at normal speed and was hit by a private bus bearing registration No.KL-17/D 2646 driven by the 2[nd] respondent from the opposite direction in a rash and negligent manner and in excessive speed, at Kadamattom and thereby he sustained serious injuries. Later on he succumbed to the fatal injuries sustained, while being transported to the hospital for treatment. The accident was allegedly occurred due to the rash and negligent driving of the offending bus by its driver. The registered owner and the insurer of the offending bus were arrayed as respondent Nos.1 and 3 in the Original Petition filed by the legal representatives of the deceased Eldhose Paulose. It was alleged that the 2[nd] respondent who was driving the offending bus at the relevant time was responsible for the accident. Rs.8,00,000/- was claimed as total compensation. 4. The 1[st] respondent was served with notice and he filed written statement raising contentions that the motor accident was occurred solely due to the negligence and carelessness of Mr.Eldhose Paulose, that he was not wearing helmet at the relevant time, that he was not holding a valid driving license as MACA Nos.2327/13 & 969/14 -:5:- on date of accident and therefore the petitioners are not entitled to get any amunt as compensation on account of the death of Mr.Eldhose Paulose, that the 2[nd] respondent was not the driver of the bus at the relevant time of accident, but only its conductor, that one Mr.Ajesh Kumar was the driver of the bus at the relevant time, that the Original Petition is bad for not joining him as party, that the claim of age, occupation and monthly income are not true to facts and therefore denied and that the compensation claimed is excessive and without any basis. 5. Admittedly the offending bus was insured with the 3[rd] respondent as on date of accident. But a condition in the certificate of insurance stands issued in favour of the insured was violated by him by permitting the 2[nd] respondent who does not have a valid driving license to drive it and causing the vehicle to be driven through a place not authorised by the permit issued for it. 6. The 2[nd] respondent has also filed written statement raising contentions that he is an unnecessary party in the Original Petition, that the 2[nd] respondent was not the driver of the bus bearing registration No.KL-17/D 2646 as on date of accident, MACA Nos.2327/13 & 969/14 -:6:- that he was only the conductor cum ticket examiner of the bus that Sri.Ajesh Kumar was the driver of the bus at the relevant time, that due to non-joinder of him in the array of respondents, the Original Petition is bad for non-joinder of necessary parties, that the accident was occurred due to the rash and negligent riding of the motorcycle by Sri.Eldhose Paulose, that the petitioners are not entitled to get compensation on account of the death of Sri.Eldhose Paulose, that the compensation claimed is excessive and without any basis. The age, occupation and monthly income as per the claims in the Original Petition are denied. 7.The 3[rd] respondent had filed a written statement contending mainly that the accident being occurred due to the negligent driving by Sri.Eldhose Paulose, the petitioners are not entitled to get compensation, that the deceased was willfully riding the motorcycle without a valid policy, that the policy was issued by the 3[rd] respondent in favour of the 1[st] respondent for the vehicle bearing registration No.KL-17/D 2646 valid from 31.10.2007 till 30.10.2008, but by permitting the 2[nd] respondent, not holding a valid and effective driving license to drive the MACA Nos.2327/13 & 969/14 -:7:- same, a condition in the policy was violated by the 1[st] respondent, that the vehicle was plied in violation of the permit issued and therefore the insurer is not liable to indemnify the insured. The petitioners are contended as not entitled to get any compensation from the respondents for the above reasons and the Original Petition was sought to be dismissed. 8. Evidence adduced on the side of the petitioners consists of oral evidence tendered by PWs 1 and 2 and Exts.A1 to A10, B1, B2 & X1. The Tribunal found on the basis of the above evidence on record that the motor accident in question was occurred due to the rash and negligent driving of the stage carriage bus bearing No.KL-17/D 2646 by the 2[nd] respondent in the Original Petition. The Tribunal had also arrived at Rs.5,86,500/- as the compensation payable to the petitioners for the loss sustained due to the death of Sri.Eldhose Paulose in the motor accident. Since it was established before the Tribunal by the 3[rd] respondent that the Stage Carriage Bus was driven by the 2[nd] respondent having no valid and effective driving license and without permit, the 3[rd] respondent was permitted to recover the compensation stands ordered, from the registered owner of the MACA Nos.2327/13 & 969/14 -:8:- stage carriage bus who is none other than the 1[st] respondent/appellant herein, after depositing it in favour of petitioners. 9. The specific contention firstly taken by the 3[rd] respondent in its written statement was that the 2[nd] respondent had driven the stage carriage bus at the relevant time of accident without a valid and effective driving license. Contention taken secondly was that the stage carriage bus involved in the motor accident was not holding a valid permit authorising to drive it through the place of incident. To meet the contentions raised as above, I.A. No.172/2009 was filed by the 3[rd] respondent before the Tribunal. Vide direction issued by the Tribunal in the Interlocutory Application filed as above, the 1[st] and 2[nd] respondents, who are the registered owner and driver of the stage carriage bus were directed to produce the driving license, the 2[nd] respondent was holding and the permit stands issued in favour of the 1[st] respondent. In the event of their failure to produce the documents as directed, adverse inference was drawn by the Tribunal to the effect that the stage carriage bus which caused the motor accident was not holding a valid permit to conduct the MACA Nos.2327/13 & 969/14 -:9:- service through Ernakulam-Muvattupuzha National Highway at the relevant time of motor accident. Adverse inference was also drawn to the effect that the 2[nd] respondent who was driving the stage carriage bus at the relevant time of accident was not holding a valid and effective driving license to drive the same. 10. On the basis of the adverse inference drawn as above, the Tribunal found that the 1[st] respondent, the appellant by permitting the stage carriage bus to be driven without authorisation through a place and the 2[nd] respondent by driving the vehicle without a valid driving license has undoubtedly committed breach of the conditions of policy and accordingly directed the insurer to deposit the sum stands arrived at as compensation and to get recovery of the same from the appellant. 11. True that in National Insurance Co. Ltd v. Swaran Singh [2004(1) KLT 781-SC] cited by the learned counsel for the appellant the Apex Court had held: “ The parties alleging breach must be held to have succeeded in establishing the breach of conditions of contract of insurance on the part of the insured by discharging its burden of proof.” MACA Nos.2327/13 & 969/14 ## -:10:- ## It further held : “Even where the insurer is able to prove breach of conditions of policy by the insured, like non-holding of a valid driving license by the driver or his qualification to drive the vehicle during the relevant period, the insurer will not be allowed to avoid its liability towards the insured, unless the said breach or breaches of the conditions of driving license is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the conditions of policy would apply ‘the rule of main purpose’ and the concept of ‘fundamental breach’ to allow defences available to the insurer under Section 149(2) of the Act. The question as to whether the owner has taken reasonable care to find out, whether the driving licence produced by the driver (a fake one or otherwise), does not fulfill the requirements of law or not will have to be determined in each case.” 12. The learned counsel for the appellant has raised a contention on the basis of the above dictum that the Tribunal ought to have considered at the time of taking a decision on breach of conditions of policy, whether the breach established is fundamental one or not. The Tribunal must find out from the evidence on record that the violation of conditions of policy, has a bearing on the accident in question. 13. In the case on hand, the 3[rd] respondent has raised two main contentions in its written statement. First one refers to violation of conditions of permit and the other one, violation of MACA Nos.2327/13 & 969/14 -:11:- conditions of policy. It is inappropriate to say that violation of the permit conditions have a fundamental impact on the motor accident in question or in other words it cannot be said to have contributed to the accident in question. Therefore, it cannot be treated as a fundamental breach to form basis for exonerating the insurer from liability to indemnify the insured. It is indicated from the Final report marked in evidence that the stage carriage bus at the relevant time of accident was driven by the 2[nd] respondent without a valid and effective driving license. Therefore the said violation of policy condition is undoubtedly a fundamental breach and can be taken to have contributed to the cause of the motor accident, to some extent. The 3[rd] respondent had filed an application as I.A. No.172/2009 before the Tribunal and obtained an order whereby the 1[st] and 2[nd] respondents were directed to produce the driving license if any possessed by the 2[nd] respondent who is none other than the driver of the offending vehicle. But both respondents did not turn up in response to the notice issued and produced the driving license authorising the 2[nd] respondent to drive the stage carriage bus as on date of accident. It is also revealed from the final report marked in evidence before the Tribunal as Ext.A5 that the 2[nd] respondent MACA Nos.2327/13 & 969/14 -:12:- who had driven the stage carriage bus at the relevant time stands chargesheeted for commission of offences punishable under Sections 279, 337, 338 & 304A IPC and also under Section 66(1) read with Section 192 of MV Act and Section 3(1) read with Section 181 of MV Act, 1988. Therefore there cannot be any room for a doubt to arise that by permitting the 2[nd] respondent not holding a valid and effective driving license to drive the offending stage carriage bus, the insured has caused the motor accident in question to occur. Therefore, driving of the stage carriage by the 2[nd] respondent without any authorisation itself can be taken to have resulted in the motor accident and consequently the death of Sri.Eldhose Paulose. Therefore, by permitting the driver not duly authorised to drive the state carriage, the insured of the vehicle who is none other than the 1[st] respondent/appellant has committed a fundamental breach. The Tribunal has rightly fixed the liability upon the insurer of the stage carriage bus who was arrayed in the Original Petition as the 3[rd] respondent to have recovery of the compensation amount after depositing it in favour of the petitioners from the 1[st] and 2[nd] respondents. The finding being correct, is only to be maintained. MACA Nos.2327/13 & 969/14 -:13:- 14. M.A.C.A. No. 969 of 2014 is connected to this appeal and it has been filed by the legal representatives and dependents of Mr.Eldhose Paulose who died due to the fatal injuries sustained by him in the motor accident. Enhancement of compensation is sought in the appeal on hand. The grievance of the appellants as projected by Dr.Abraham P. Meachinkara was that Sri.Eldhose Paulose at the relevant time of his death was only 28 years and was the sole breadwinner for his family members who survived him. According to him, he was a driver working with Valancherry Agro Mills, Manjapra, Kalady and has a monthly income of Rs.7,000/-. To establish the job and monthly income, a certificate issued by his employer was produced and marked in evidence as Ext.A8. It was established before the Tribunal from Ext.A8 that Mr.Eldhose Paulose at the relevant time of his death was a driver by profession and earning a sum of Rs.7,000/monthly. Ext.A8 was found signed by Sri.Leo Paulson, as Managing Partner of Valancherry Agro Mills. The employer of Sri.Eldhose Paulose who issued Ext.A10 certificate was also examined as PW1. According to the learned counsel, despite marking of the certificate issued by the employer of the deceased as Ext.A10 and examining the employer as PW1, the Tribunal MACA Nos.2327/13 & 969/14 -:14:- declined to take Rs.7,000/- certified in Ext.A10 and spoken by PW1 as his monthly income and to base it for calculation of compensation. According to him, the Tribunal is highly unjustified in not relying on the oral as well as documentary evidence tendered as above and fixed Rs.3,500/- as his monthly income on a notional basis. According to the learned counsel, it stands established before the Tribunal through Ext.A9 document that the deceased was holding a valid driving license to drive a heavy duty vehicle including a transport vehicle with effect from 15.11.2007 and a badge with effect from 03.05.2002. According to the learned counsel, it is also established from Ext.A9 that the deceased was qualified to drive a transport vehicle at the relevant time of the motor accident. According to him, interference of this Court is highly warranted to refix the monthly income after appreciating the evidence already on record. The learned counsel has further contended that Mr.Eldhose Paulose died on account of the fatal injuries sustained by him in the motor accident. According to him, compensation for loss of dependency arrived at by the Tribunal requires reconsideration so as to make it just and reasonable. It is further pointed out by the learned counsel that Rs.5,000/- each stand awarded by the MACA Nos.2327/13 & 969/14 -:15:- Tribunal under the head funeral expenses and loss of estate and being lower than the amount for which the petitioners are entitled to receive based on National Insurance Co.Ltd. v. Pranay Sethi and others [2017 (4) KLT 662(SC)], interference is warranted to correct it. According to the learned counsel, the deceased was only a bachelor as on date of his death and was survived by his parents and siblings. The siblings being aged 26 and 24 years respectively cannot be considered as dependents of the deceased, especially when their parents are alive at the relevant time when he met with the motor accident. Petitioners 1 and 2 being parents are entitled to get Rs.44,000/- each as compensation for loss of consortium and this Court awards so. 15. The learned counsel for the insurer, who is the 2[nd] respondent in the appeal on hand contended that compensation stands awarded by the Tribunal under various heads being just and reasonable, the impugned award is not liable to be interfered with. According to him, though the employer of the deceased was examined as PW2 and a certificate issued by him by affixing his signature and seal to the factums certified therein that Rs.7,000/- was obtained monthly as salary, is marked in evidence as Ext.A8, it was brought out in cross examination that MACA Nos.2327/13 & 969/14 -:16:- wages paid was based purely on the distance he travelled. It was further stated by him in the course of cross examination that Rs.1.40 was given per kilometer. The 3[rd] respondent has also brought on record that apart from Ext.A8, other materials to support the certification there are not produced. Though tax return was admittedly filed before the Labour Department, copy of it is not produced for the reason that it was entrusted to the Income Tax Department. Though it was stated by him that the Wages Register and Attendance Register are maintained at the office of the concern run by him, those were not produced despite the undertaking made to produce those. Therefore, adverse inference liable to be drawn in the context was that the documents undertaken to be produced does not exist or are not in the possession of PW2. The Tribunal appears in the context to have rightly discarded Ext.A8 certificate and the oral evidence tendered by PW2 as well. The Tribunal was constrained to fix Rs.3,500/- as the monthly income on a notional basis in the above context. 16. The driving license of the deceased was found marked in evidence as Ext.A9 and it is revealed therefrom that he was holding a valid and effective driving license to drive a transport MACA Nos.2327/13 & 969/14 -:17:- vehicle as on date of accident. Therefore, since the deceased being a driver authorised to drive a transport vehicle and the accident being occurred in the year 2007, this Court finds it appropriate to have a refixation of the monthly income. Rs.6,000/- is the monthly income refixed. The deceased being aged 28 years, the multiplier applicable to that age is 17. The deceased being aged 28 years, the petitioners are entitled for a hike of 40% to the refixed monthly income in consideration of loss of future prospects and thus Rs.8,400/- is arrived at. Deceased being a bachelor, half needs to be deducted from the above sum in consideration of his personal expenditure, had he survived the motor accident. Thus Rs.4,200/- is arrived at. 17. In the re-assessment of compensation as above, Rs.8,56,800/- (Rs.4,200x12x17) is arrived at as the additional compensation payable under the head loss of dependency. Rs.5,35,500/- stands awarded as compensation under the head when adjusted in the sum now arrived at, the petitioners will get Rs.3,21,300/- as additional compensation. Towards funeral and allied expenses and loss of estate Rs.5,000/- each was awarded by the Tribunal. Petitioners being entitled to get Rs.16,500/- each under those heads, Rs.11,500/- each is payable as additional MACA Nos.2327/13 & 969/14 -:18:- compensation under those heads. As already stated, petitioners 1 and 2 being the parents of the deceased, each of them are entitled to get compensation for loss of consortium at the rate of Rs.44,000/-. The Tribunal failed to award any sum as compensation under that head. Therefore, petitioners will get Rs.88,000/- (Rs.44,000/- x 2) as additional compensation. As compensation towards love and affection and pain and suffering Rs.30,000/- and 10,000/- respectively were awarded by the Tribunal. It is settled that petitioners being legal representatives of the deceased are not entitled to receive compensation for loss of love and affection as well as pain and suffering. In that context, Rs.40,000/- is required to be deducted from the total sum arrived at as additional compensation and therefore, the petitioners will get Rs.3,92,300/- (Rs.4,32,300 – Rs.40,000) as additional compensation. 18. The 3[rd] respondent being the insurer of the offending vehicle shall deposit Rs.3,92,300/- (Rupees Three lakhs Ninety two thousand three hundred only) with 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 shall deposit the additional compensation arrived at as above in the appeal on MACA Nos.2327/13 & 969/14 -:19:- hand alongwith interest fixed for it, within two months from the date on which, a certified copy of this judgment is received. After making the deposit of the sum with interest, the said amount shall be recovered from the 1[st] respondent. M.A.C.A. No. 2327 of 2013 fails for the reasons and is dismissed. M.A.C.A No. 969 of 2014 stands allowed accordingly. Sd/- MARY JOSEPH, JUDGE. ttb