MACA Nos. 2374 of 2013 and 1571 of 2013, High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 MACA NO. 2374 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENT OPMV 1108/2004 OF ADDITIONAL DISTRICT COURT-II & IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , ``` ## **`MAVELIKKARA`** ## **`APPELLANTS/PETITIONERS:`** - **`1 PUSHPA E.K. W/O.LATE THRIVIKRAMAN, PODAM PLAVUNNILKUNNATHIL, MULAKKUZHA, CHENGANNUR - 689 121.`** - **`2 VIPIL T. S/O.LATE THRIVIKRAMAN, PODAM PLAVUNNILKUNNATHIL, MULAKKUZHA, CHENGANNUR - 689 121.`** - **`3 VINEETHA.T. D/O.LATE THRIVIKRAMAN, PODAM PLAVUNNILKUNNATHIL, MULAKKUZHA, CHENGANNUR 689 121.`** - **`4 GOURIKUTTY W/O.LATE KUTTAPPAN, PODAM PLAVUNNILKUNNATHIL, MULAKKUZHA, CHENGANNUR - 589 121. BY ADV SRI.A.N.SANTHOSH`** ## **`RESPONDENTS:`** - **`1 MOHANA RAJAN S/O.RAGHAVAN, MOHINDA SADANAM, PERINGALA P.O., MULAKKUZHA, CHENGANNUR - 689 121.`** - **`2 THE MANAGER THE NEW INDIA ASSURANCE COMPANY LIMITED, POOVATHOOR BUILDINGS, M.C.ROAD, CHENGANNUR - 689 121.`** - **`BY ADVS. SRI.A.R.DILEEP SRI.GEORGE VARGHESEPERUMPALLIKUTTIYIL SRI.LAL GEORGE SRI.MANU SEBASTIAN SEBASTIAN VARGHESE(K/141/2000)`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2024, ALONG WITH MACA.1571/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.2374 & 1571 OF 2013 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 MACA NO. 1571 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENT OPMV 1108/2004 OF ADDITIONAL DISTRICT COURT-II & IST ADDITIONAL MOTOR ACCIDENT CLAIMS ``` ``` TRIBUNAL , MAVELIKKARA ``` ## **`APPELLANT/2ND RESPONDENT IN O.P(MV)No.1108/2013:`** ## **`THE MANAGER`** ``` NEW INDIA ASSURANCE CO.LTD,POOVATHUR BUILDING M.C ROAD,CHENGANNUR,REPRESENTED BY ITS MANAGER,REGIONAL OFFICE,M.G ROAD,ERNAKULAM ``` ``` BY ADVS. SRI.LAL GEORGE SEBASTIAN VARGHESE(K/141/2000) ``` ## **`RESPONDENTS/PETITIONER 1 & 4 AND 1ST RESPONDENT IN O.P(MV)`** ``` NO.1108/04: ``` - **`1 PUSHPA.E.K. W/O.LATE THRIVIKRAMAN,PODAN PLAVUNNIKUNNATHAIL,MULAKUZHA PANCHAYATH WARD NO XVI,MULAKUZHA VILLAGE,CHENGANNUR 689 121`** - **`2 VIPIN S/O.LATE THRIVIKRAMAN,PODAN PLAVUNNIKUNNATHIL,MULAKUZHA PANCHAYATH WARD NO XVI,MULAKUZHA VILLAGE,CHENGANNUR 689 121`** - **`3 VINEETHA T D/O.LATE THRIVIKRAMAN,PODAN PLAVUNNIKUNNATHIL,MULAKUZHA PANCHAYATH WARD NO XVI,MULAKUZHA VILLAGE,CHENGANNUR 689 121`** - **`4 GOURIKUTTY W/O.LATE KUTTAPPAN,PODAN PLAVUNNIKUNNATHIL,MULAKUZHA PANCHAYATH WARD NO XVI,MULAKUZHA VILLAGE,CHENGANNUR 689 121`** ``` BY ADV SRI.A.N.SANTHOSH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 14.02.2024, ALONG WITH MACA.2374/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.2374 & 1571 OF 2013 ``` ``` 3 ``` ## **`JUDGMENT`** Both these appeals arise from the award passed by the Motor Accidents Claims Tribunal, Mavelikkara in OP(MV) No.1108/2004. The said claim petition was submitted by the appellants in MACA 2374/2013 seeking compensation for the death of one Thrivikraman @ Kochumon due to the injuries sustained in a motor accident that occurred on 07/06/2004. The deceased was the husband of the 1[st] appellant, the father of the appellants 2 and 3 and the son of the 4[th] appellant. 2. The accident occurred when the deceased was travelling in the cabin of a Tata 407 Tempo bearing registration No.KL-02/A2759, due to the rash and negligent driving of the 1st respondent, the said vehicle capsized thereby causing serious injuries to him. While undergoing treatment, he passed away on 08/06/2004. The deceased was a casual labourer and agriculturist with a monthly income of Rs.6,500/-. He was 46 years old at the time of the accident. The claim petition is submitted in such circumstances. ``` MACA Nos.2374 & 1571 OF 2013 ``` ``` 4 ``` 3. The 2[nd ] respondent/Insurer of the vehicle filed a written statement admitting the coverage of policy for the said vehicle. However, it was contended that the deceased was a passenger in the said vehicle and there was no seat in the said vehicle to carry an additional passenger. Therefore the deceased being a gratuitous passenger in a goods vehicle, the liability as per the said policy which was a “Act only policy” cannot be extended to the risk of the deceased. Therefore they sought exoneration from the liability. The quantum of compensation was also disputed by them. 4. To substantiate their contentions, the appellants examined PW1 and as documentary evidence Ext. A1 to A8 were marked. The 3[rd] respondent produced Ext.B1. After considering the materials placed on record, the Tribunal found that the accident occurred due to the negligence of the 1[st] respondent in driving the goods vehicle. The contentions raised by the 2[nd] respondent/Insurance company with respect to the coverage of the policy were rejected. The quantum of compensation was fixed as ``` MACA Nos.2374 & 1571 OF 2013 ``` ``` 5 ``` Rs.3,57,700/- and the said amount was directed to be deposited by the 2[nd] respondent with interest at the rate of 7.5% per annum from the date of petition till realisation with a cost of Rs.3,000/-. 5. Challenging the liability imposed upon the 2[nd] respondent/Insurer MACA 1571/2013 was filed by them whereas MACA 2374/2013 was filed by the claimants being dissatisfied with the quantum of compensation. 6. Heard Sri. A.N.Santhosh, learned counsel appearing for the claimants, the appellants in MACA 2374/2013, Sri. George Varghese Perumpallikuttiyil, learned counsel appearing for the 1st respondent in MACA 1571/2013, and Sri. Sebastian Varghese learned counsel appearing for the 3[rd] respondent-insurer, the appellant in MACA 1571/2013. 7. In MACA 1571/2013 the insurer of the vehicle challenges the liability imposed upon them to pay the compensation. The specific case put forward by the learned counsel for the insurer is to the effect that, the deceased was a passenger in ``` MACA Nos.2374 & 1571 OF 2013 ``` ``` 6 ``` the said vehicle and there was no facility for carrying an additional passenger. It was also contended that the policy issued was only an “Act only policy”, the coverage of which cannot be extended to the risk of the passenger carried in the said vehicle. However, the Tribunal rejected the contention as to the seating capacity by placing reliance upon the copy of the RC book produced on record which would show that the seating capacity was three, including the driver. At the relevant time, admittedly only three persons were travelling in the said vehicle. 8. The next contention is that, as the deceased was a gratuitous passenger in a goods vehicle, no liability can be fastened upon the insurer. However, I am not inclined to accept this contention also. This is particularly because, in Ext.A1, FIS which was recorded immediately after the death of the deceased, it was specifically mentioned that the first informant along with the deceased was travelling in the said vehicle after purchasing beetle stems. The record would also indicate that the vehicle carried goods ``` MACA Nos.2374 & 1571 OF 2013 ``` ``` 7 ``` at the relevant time. Thus, from the FI statement itself, it is evident that, the status of the deceased was as the owner of the goods carried in the said vehicle and therefore the statutory coverage as contemplated under Section 147 of the Motor Vehicles Act would come into play. Besides the same, it is also to be noted that, there was adequate seating capacity to accommodate the deceased in the said vehicle and there is no material indicating that any person in excess of the carrying capacity was travelling. In such circumstances, I do not find any scope for interfering in the award passed by the Tribunal. Therefore the contentions raised by the appellants in MACA 1571/2013 can only be rejected and it is ordered accordingly. 9. The next aspect related to the quantum of compensation which is the subject matter in MACA 2374/2013 as mentioned above. The deceased was aged 46 years at the time of the accident. ``` MACA Nos.2374 & 1571 OF 2013 ``` ``` 8 ``` According to him, he was a casual labourer and agriculturist with a monthly income of Rs.6,500/-. However, the Tribunal took the monthly income as Rs.3,000/- only, which appears to be on the lower side. It is to be noted in this regard, in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court was pleased to take the monthly income of an ordinary worker as Rs.4,500/- for the year 2004. Therefore in this case also the said monthly income can be accepted and it is ordered accordingly. 10. In view of the fact that the deceased was aged 46 years, an addition of 25% is to be made towards future prospects in the light of _**National Insurance Company Ltd. v. Pranay Sethi**_ [(2017) 16 SCC 680]. The proper multiplier applicable is 13 and the as deduction to be made towards personal expenses should be 1/4[th] he left behind four dependents. Thus, while reassessing the compensation with the above criteria, the amount of compensation for loss of dependency comes to Rs.6,58,125/- ``` MACA Nos.2374 & 1571 OF 2013 ``` ``` 9 ``` [(4500+25%)x12x13x3/4]. The amount already awarded by the Tribunal is Rs.2,88,000/- and thus the additional compensation would come to Rs.3,70,125/-. 12. The amount awarded by the Tribunal towards funeral expenses was only Rs.5,000/- whereas the actual amount payable was Rs.15,000/- in the light of _**Pranay Sethi**_ (supra) and therefore a further sum of Rs.10,000/- is awarded. Similarly, the amount awarded towards loss of estate was only Rs.3,000/- and in the light of _**Pranay Sethi**_ (supra) a further sum of Rs.12,000/- is awarded. 13. The next head which requires consideration is the loss of consortium. All the appellants, being the wife, children and the mother of the deceased, are entitled to compensation for loss of consortium at the rate of Rs.40,000/- each thereby making a total sum of Rs.1,60,000/-. Out of the said amount the Tribunal awarded Rs.15,000/- towards loss of consortium and a further sum of Rs.35,000/- under the head of loss of love and affection. As it is held in _**United India Insurance Co Ltd V. Satinder Kaur @**_ ## **`MACA Nos.2374 & 1571 OF 2013`** ``` 10 ``` _**Satwinder Kaur and other**_ [2020 (3) KHC 760], that when compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection, the amount awarded under that head could be adjusted against the compensation for loss of consortium. Thus the additional compensation for loss of consortium is determined as Rs.1,10,000/-. Accordingly, the total additional compensation is determined as Rs.5,02,125/- (370125 + 10000 + 12000 + 110000). In the result, MACA No. 1571/2013 is dismissed. MACA No. 2374/2013 is allowed by modifying the award dated 28/01/2012 passed by the Motor Accidents Claims Tribunal, Mavelikkara in OP(MV) No.1108/2004 by granting an additional compensation of Rs.5,02,125/- (Rupees five lakhs two thousand one hundred and twenty five only) and the said amount shall be deposited by 2[nd] respondent in the claim petition, with interest at the rate as ordered by the Tribunal and with proportionate cost within a period of three months from the date of receipt of copy of this judgment. However ``` MACA Nos.2374 & 1571 OF 2013 ``` ``` 11 ``` it is clarified that, as there was delay of 563 days in filing MACA No.2374/2013, the 2[nd] respondent-insurer shall be at liberty to exclude the said period while computing the interest on the additional compensation. ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` sms