High Court of KeralaDivision Bench2012-02-02Appeals allowed; recovery against insurer delet...

M.A.C.A. Nos. 257 of 2009 & 221 of 2012, High Court of Kerala

Case / Petition Number:M.A.C.A. Nos. 257 of 2009 & 221 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Pius C. KuriaKose
A. V. Ramakrishna Pillai
Judgment Date: 2012-02-02
Court Decision / Holding: M.A.C.A. 221/2012 is allowed; the recovery right given to the Insurance Company under the impugned award is deleted and any attachments will be withdrawn. M.A.C.A. 257/2009 is partly allowed: the Tribunal’s misestimation of income and the multiplier are corrected by applying a monthly income of Rs.3,000 and multiplier of 17, with personal expenses reduced to 1/4; dependency compensation increased by Rs.99,000; Rs.7,500 for pain and suffering; Rs.3,000 for funeral; total enhanced compensation Rs.1,09,500; interest on the entire award at 7.5% per annum. The appeals are allowed, and costs are allocated to the parties. The judgment modifies the award and directs payment of the enhanced sums with the stated interest.
Final Disposition: Appeals allowed; recovery against insurer deleted for MACA 221/2012; compensation enhanced for MACA 257/2009 with clarified multiplier and dependency calculations; overall costs awarded; attachments withdrawn; interest at 7.5%

Parties to the Case

Appellants / Petitioners

A.S. AFSAL @ AFSAL., S/O.ABOOBACKER.K, SALSANA HOUSE, POONOOR.P.O., UNNIKULAM, KOZHIKODE-673574.

Respondents

KunhimuHAMMED A.P. S/O.HUSSAIN, ANAPPARAYIL HOUSE, RAROTH, KORANGAD.P.O, THAMARASSERY, KOZHIKODE-673 576
NABEESA, W/O. LATE ABDUL RAFEEQ, ANAPPARAYIL HOUSE, RAROTH, KORANGAD.P.O, THAMARASSERY, KOZHIKODE-673 576
SAHIDA, W/O. LATE ABDUL RAFEEQ, ANAPPARAYIL HOUSE, RAROTH, KORANGAD.P.O, THAMARASSERY, KOZHIKODE-673 576
NAFEEESATH RISHANA, AGED 12 YEARS, D/O LATE ABDUL RAFEEQ, ANAPPARAYIL HOUSE, RAROTH, KORANGAD.P.O, THAMARASSERY, KOZHIKODE-673 576
FAHUMIDA, AGED 10 YEARS, D/O LATE ABDUL RAFEEQ, ANAPPARAYIL HOUSE, RAROTH, KORANGAD.P.O, THAMARASSERY, KOZHIKODE-673 576
MUHAMMED ANAZ, AGED 7 YEARS, S/O LATE ABDUL RAFEEQ, ANAPPARAYIL HOUSE, RAROTH, KORANGAD.P.O, THAMARASSERY, KOZHIKODE-673 576
NATIONAL INSURANCE COMPANY LIMITED, P.B.NO.811, DIVISIONAL OFFICE, NOOR COMPLEX, NEAR ARAYADATHUPALAM, MAVOOR ROAD, KOZHIKODE- 673 576

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K.M. Firoz

Counsels for Respondents

• Sri. V.N. Ramesan Nambisan
• Sri. M.A. George

Case Synopsis & Summary

This judgment consolidates two Motor Accidents Claims Appeals (MACAs) filed in the Kerala High Court arising from a 2005 road accident involving a vehicle driven by a 27-year-old deceased and a claim for compensation by his legal heirs, against the vehicle owner and the insurer. MACA 221/2012 is by the registered owner challenging the Motor Accidents Claims Tribunal’s order that exonerated the insurer from payment and directed recovery from the owner; MACA 257/2009 is by the claimants seeking enhanced compensation for the deceased’s dependants and for other heads of damages. The High Court first addressed MACA 221/2012, noting that Exts. A8 and A9—certified copies of the driver’s badge and driving licence—were produced by the claimants, and there was no basis to draw adverse inferences against the owner; consequently, the recovery rights against the insurer were deleted. On MACA 257/2009, the Court reviewed the tribunal’s assessment of income and dependency. It found that the monthly income of Rs. 3,000 for 2005 was plausible but that the tribunal’s multiplier of 18 was excessive; applying Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121, the Court adopted multiplier 17 and reduced personal expenses from 1/3 to 1/4. This yielded an enhanced award: Rs. 99,000 in dependency, Rs. 7,500 for pain and suffering, and Rs. 3,000 for funeral, with a total increment of Rs. 1,09,500; interest on the entire award at 7.5% per annum. The appeals are allowed, and costs awarded to the parties. The court also directed the attachment to be withdrawn and clarified that the insurer bears no recovery obligation.

Submissions & Arguments

Contentions of Appellants / Petitioners

MACA 221/2012: Learned counsel for the appellant submitted that Exts. A8 and A9—certified copies of the permit and driving licence—were produced by the claimants, and the Tribunal’s direction to the owner to produce them should not justify adverse inferences or recovery obligations against the owner. The Tribunal erred in holding the insurer liable, especially since Exts. A8 and A9 were in evidence. In MACA 257/2009, the appellants argued that the deceased, a driver, had a plausible monthly income of Rs. 3,000 for 2005; the tribunal’s deduction of personal expenses at 1/3 and the multiplier 18 led to inadequate compensation. The insurer contended that the multiplier of 18 was correct per the Sarla Verma framework. The counsel urged reassessment using multiplier 17 and a reduction of personal expenses to 1/4, which would increase dependency compensation. Overall, the argument was for recalibration of the award with proper application of the law on multiplier and dependency, and for appropriate enhancement of damages under heads including pain and suffering and funeral expenses.

Contentions of Respondents

Respondents contended that Exts. A8 and A9 were not original documents; the Tribunal’s inference against the insurer was justified, and recovery rights could be exercised. They urged that the compensation under various heads was adequate and that the tribunal’s calculation should stand unless clearly erroneous. The respondents also argued that the multiplier and income estimation used by the Tribunal were proper under the facts of the case, and that the offset for personal expenses should be maintained as per the established approach, with limited scope for retrospective recalibration.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Verma v. Delhi Transport Corporation	2009(6)SCC 121	Positive	relied upon to apply the correct multiplier (17) rather than 18; not overruled; used as controlling precedent for computation of dependency and multiplier.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933** **MACA.No. 221 of 2012 ()** **----------------------------OPMV.636/2005 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, VADAKARA ...................... APPELLANT(S)/IST RESPONDENT IN OP(MV).636 OF 2005:** **---------------------------------------------------------------------** **A.S. AFSAL @ AFSAL., S/O.ABOOBACKER.K,SALSANA HOUSE, POONOOR.P.O., UNNIKULAM, KOZHIKODE-673574.** **BY ADV. SRI.K.M.FIROZ** ## **RESPONDENT(S)/CLAIMANTS AND RESPONDENTS NO.2 OPMV.NO.636/05 :** - **----------------------------------------------------------------------------------------** **1. KUNHIMUHAMMED A.P. S/O.HUSSAIN,ANAPPARAYIL HOUSE, RAROTH, KORANGAD.P.O,THAMARASSERY,KOZHIKODE- 673 576.** **2. NABEESA, W/O.LATE ABDUL RAFEEQ,ANAPPARAYIL HOUSE, RAROTH, KORANGAD.P.O,THAMARASSERY,KOZHIKODE- 673 576.** **3. SAHIDA, W/O.LATE ABDUL RAFEEQ,ANAPPARARYIL HOUSE, RAROTH, KORANGAD.P.O,THAMARASSERY,KOZHIKODE- 673 576.** **4. NAFEESATH RISHANA, AGED 12 YEARS,D/O LATE ABDUL RAFEEQ ANAPPARAYIL HOUSE,RAROTH,KORANGAD.P.O THAMARASSERY,KOZHIKODE - 673 576.** **5. FAHUMIDA,AGED 10 YEARS, D/O.LAE ABDUL RAFEEQ, ANAPPARAYIL HOUSE, RAROTH,KORANGAD.P.O,THAMARASSERY, KOZHIKODE- 673 576.** **6. MUHAMMED ANAZ,AGED 7 YEARS, S/O.LATE ABDUL RAFEEQ, ANAPPARAYIL HOUSE, RAROTH,KORANGAD.P.O,THAMARASSERY, KOZHIKODE- 673 576.** **7. NATIONAL INSURANCE COMPANY LIMITED, P.B.NO.811,DIVISIONAL OFFICE,NOOR COMPLEX, NEAR ARAYADATHUPALAM,MAVOOR ROAD,KOZHIKODE- 673 576.** - **R1 TO R6 BY ADV. SRI. V.N.RAMESAN NAMBISAN R7 BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02-02-2012, ALONG WITH MACA. 257/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **MACA. NO. 221/2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE. A1: DRIVING LICENCE PARTICULARS ISSUED BY THE MOTOR VEHICLE INSPECTOR,KODUVALLY.** **ANNEXURE. A2: CERTIFIED COPY OF THE STAGE CARRIAGE PERMIT ISSUED IN THE NAME OF THE APPELLANT HEREIN BY THE SECRETARY RTA, VATAKARA.** **ANNEXURE. A3: REGISTRATION PARTICULARS OF THE STAGE CARRIAGE PERMIT IN THE NAME OF THE APPELLANT HEREIN ISSUED BY THE JOINT RTO,VATAKARA IN RESPECT OF TATA LP - MPMV STATE CATTIAGE VEHICLE BEARING NO.KL-18A 5823.** ## **RESPONDENT'S ANNEXURES: NIL** ## **/TRUE COPY/** **P.A. TO JUDGE.** **svs** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** **===================== M.A.C.A. NOS. 257 OF 2009 & 221 OF 2012 =====================** Dated this the 2[nd] day of February 2012 ## JUDGMENT ## **Pius C.Kuriakose,J.** M.A.C.A. 221/2012 is preferred by the registered owner of the vehicle which was involved in the accident and M.A.C.A. No.257/2009 is preferred by the claimants who are the legal heirs of the deceased who was a 27 year old driver. The ground raised in M.A.C.A.221/2012 is that in spite of EXts.A8 and A9 and the finding entered by the learned Tribunal on the basis of those two documents that the driver of the offending vehicle was having a valid driving licence as well as badge, the learned Tribunal erroneously exonerated the Insurance company from the obligation to the compensation amount and indemnify the insured. The grounds raised in M.A.C.A. 257/2009 are to the effect that the compensation awarded by the Tribunal under various heads by the Tribunal including the head of MACA 221/2012 -2- dependency is quite inadequate. We shall first deal with M.A.C.A.221/2012 Arguments of Mr.K.M.Firoz, learned counsel for the appellant was that the learned Tribunal even after having noticed Exts.A8 and A9 which were certified copies of the permit in respect of the offending vehicle and the driving licence particulars in respect of the driving licence held by the driver of the offending vehicle had given recovery right to the Insurance Company to recover the amount to be paid pursuant to the award from the owner on the reason that the owner did not comply with the direction passed by the Tribunal to produce the driving licence as well as the permit Particulars. According to the learned counsel, the learned Tribunal was not at all justified in drawing adverse inferences against the owner in the teeth of Exts.A8 and A9 which constituted legal evidence in the case. MACA 221/2012 -3- 2. The reply of Mr.M.A.George, learned standing counsel for the Insurance company in M.A.C.A.221/2012 was that Exts.A8 and A9 documents are not the originals. We shall now deal with the submissions in M.A.C.A. No.257/2009. Learned counsel for the appellants argued that the accident occurred in the year 2005 and it was admitted that the deceased was a driver. His monthly income should have been taken notionally to be at least Rs.3,000/-. It was then argued that the proper deduction to be made towards the personal expenses of the deceased who was unmarried was 1/4[th] and not 1/3[rd] . 3. Mr. Joe Kalliath, learned counsel for the Insurance company in M.A.C.A.No.257/2009 submitted that the multiplicand adopted by the learned Tribunal was proper. But according to him, the multiplier of 18 adopted by the Tribunal is erroneous in view of the judgment of the Supreme court in **Sarla Verma v. Delhi Transport** MACA 221/2012 -4- **Corporation[ (2009(6)S.C.C.121].** Mr.Joe Kalliath also submitted that it is adequate compensation which has been awarded by the Tribunal under various other heads. 4. Having bestowed our anxious consideration to the submissions addressed at the Bar in both these appeals, we are of the view that M.A.C.A. 221/2012 filed by the owner of the vehicle is only to be allowed. There was no warrant for drawing adverse inferences against the owner as Ext.A8 and Ext.A9 documents had already been produced by the claimants themselves. It was evident from Exts.A8 and A9 that the driver was having badge as well as current driving licence. According to us, the learned Tribunal should not have given recovery right to the Insurance company. M.A.C.A. 221/2012 is allowed and the recovery right given to the Insurance company under the impugned award is deleted. Any attachment presently pending in respect of vehicles of the appellant in M.A.C.A. 221/2012 will stand MACA 221/2012 -5- withdrawn. 5. Coming to M.A.C.A. 257/2009, we find force in the submission of the learned counsel for the appellants that the learned Tribunal has adopted only a low multiplicand for arriving at the dependency compensation. Since it is not disputed that the deceased was a driver and as the accident occurred in 2005, the learned Tribunal could have taken monthly income at Rs.3,000/-.But at the same time we find force in the submission of Joe Kalliath that the correct multiplier to be adopted was 17. So also we are of the view that the learned Tribunal need have deducted only 1/4[th] and not 1/3[rd] towards personal expenses of the deceased. When the dependency compensation is recomputed on that basis, it will be seen that the appellants will become eligible for getting Rs.99,000/- more towards dependency compensation. We award to the appellant additional sum of Rs.99,000/-towards dependency MACA 221/2012 -6- compensation. It is seen that the deceased died on the same day of the accident. We award to the appellant Rs.7500/- more towards compensation for pain and suffering. So also we are of the view that the appellants are entitled for Rs.3,000/- more towards funeral expenses. Thus in total, we award to the appellants Rs.1,09,500/- over and above what is awarded by the Tribunal. The entire compensation including compensation awarded by the Tribunal will carry interest at the rate of 7.5% per annum. The appeals are allowed. The parties are directed to suffer their respective costs. **Sd/PIUS C.KURIAKOSE, JUDGE** **ks.** **True copy** **Sd/A.V.RAMAKRISHNA PILLAI, JUDGE P.S.To Judge** MACA 221/2012 -7-