MACA Nos. 2603/2010 & 1135/2010

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY,THE 15[TH] DAY OF NOVEMBER 2023/24TH KARTHIKA, 1945 ``` ## **`MACA NO. 2603 OF 2010`** ## **`OPMV 496/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA`** ## **`APPELLANT/S:`** - `1 JASEENTHA, AGED 51 YEARS W/O. LATE V.M.JOSE, VANDONATH HOUSE, VANHODE POST,, VELLAMUNDA, MANANTHAVADY TALUK, (W/O.OF THE DECEASED).` - `2 JOBY, AGED 22 YEARS, S/O.LATE V.M.JOSE, VANDONATH HOUSE,VELLAMUNDA, VANHODE POST,, MANANTHAVADY TALUK. (SON OF THE DECEASED).` - `3 JESSY JOSE, AGED 19 YEARS, D/O.LATE V.M.JOSE, VANDONATH HOUSE,VELLAMUNDA, VANHODE POST,, MANANTHAVADY TALUK.(D/O. OF THE DECEASED).` - `4 ANNAMMA,AGED 81 YEARS, M/O LATE V.M.JOSE, VANDONATH HOUSE,VANHODE POST,VELLAMUNDA(VIA) MANANTHAVADY TALUK. (M/O. OF THE DECEASED). BY ADV N.J.ANTONY` ## **`RESPONDENT/S:`** - `1 SHINOJ V.J. S/O. JOY, VENGALLOOR HOUSE,KUNHOME POST, KOROME, MANANTHAVADY TALUK PIN 670 731. ( DRIVER OF THE AUTORICKSHAW NO.KL-12A/1978.D.L., NO. NOT KNOWN).` - `2 MUNEER,S/O. MUHAMMED, MUNDASSERY HOUSE, VALANTHODE, NIRAVILPUZHA 670645. (OWNER OF THE AUTORICKSHAW NO.KL-12A/1978).` - `3 NEW INDIA ASSURANCE COMPANY LTD KALPETTA PIN 673 121. (POLICY NO. NOT KNOWN). BY ADVS. Rashmi K V` - `SRI.VPK.PANICKER` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2023, ALONG WITH MACA.1135/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.2603 & 1135 of 2010 : 2 : # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY,THE 15[TH] DAY OF NOVEMBER 2023/24TH KARTHIKA,1945 MACA NO. 1135 OF 2010 ``` ``` OPMV 496/2004 OF DMOTOR ACCIDENT CLAIMS ``` ## **`TRIBUNAL ,KALPETTA`** ## **`APPELLANT/S:`** ``` THE NEW INDIA ASSURANCE CO .LTD REGIONAL TOWERS, KANDAMKULATHY TOWERS,, M.G.ROAD, ERNAKULAM,REPRESENTED BY ITS, DULY AUTHORISED OFFICER. ``` ``` BY ADV SRI.VPK.PANICKER ``` ## **`RESPONDENT/S:`** - `1 SHINOJ V.J., KUNHOME P.O., KOROME. 2 MUNEER SO. MUHAMMED MUNDASSERRY HOUSE VALANTHODE, NIRAVILPUZHA.` - `3 JASEENTHAWO.LATE V.M.JOSE VANDONATH HOUSE, VANHODE (POST),VELLAMUNDA.` - `4 JOBY SO.LATE V.M.JOSE VANDONATH HOUSE VANHODE (POST), VELLAMUNDA.` - `5 JESSY JOSE DO.LATE V.P.JOSE VANDONATH HOUSE, VANHODE (POST), VELLAMUNDA.` - `6 ANNAMMA, M/O. LATE V.P. JOSE, VANDONATH HOUSE,VANHODE POST VELLAMUNDA BY ADVS. Rashmi K V SRI.N.J.ANTONY` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2023, ALONG WITH MACA.2603/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.2603 & 1135 of 2010 : 3 : ## JUDGMENT Both these appeals arose from the award passed by the Motor Accident Claims Tribunal, Wayanad, Kalpetta, in OP(MV) No.496/2004. The said claim petition was submitted by the claimants, who are the appellants in M.A.C.A. No.2603/2010, seeking compensation for the death of one V.M. Jose, who died due to the injuries sustained in a motor accident that occurred on 20.08.2004. (For convenience, the parties to these appeals are herein referred to based on their respective ranks in the claim petition.) 2. The accident occurred when the autorickshaw bearing registration No.KL-12A/1978, driven by the 1[st] respondent, hit him. The said vehicle was owned by the 2[nd] respondent and was insured with the 3[rd] respondent. Even though the deceased was taken to the hospital, he succumbed to the injuries. According to the claimants, the deceased was an Agriculturist with a monthly income of Rs. 7500/-. The claim petition was submitted in such circumstances. 3. The owner and driver did not contest the matter, and the 3[rd] respondent insurance company alone filed a written M.A.C.A. No.2603 & 1135 of 2010 : 4 : statement. Even though they admitted the coverage of the policy, they contended that the 1[st] respondent was driving the vehicle at the relevant time without a badge authorising him to drive a transport vehicle. They also disputed the quantum of compensation. 4. The evidence in this case consists of oral testimonies of PWs 1 and 2 and Exts.A1 to A9 as documentary evidence from the side of the claimants. No evidence was adduced from the side of the respondents. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 1[st] respondent, the driver of the autorickshaw. The contention raised by the insurance company regarding the violation of policy conditions was rejected, and they were held liable to pay the compensation. The quantum of compensation was fixed as Rs.3,46,500/- and the 3[rd] respondent insurance company was directed to deposit the said amount along with interest at the rate of 7.5% per annum from the date of petition till realisation. Challenging the rejection of the contention regarding the violation of policy conditions, the 3[rd] respondent insurance company filed M.A.C.A. No.2603 & 1135 of 2010 : 5 : M.A.C.A. No.1135/2010, whereas the claimants have filed M.A.C.A. No.2603/2010 seeking enhancement of compensation. 6. Heard Sri. N.J. Antony, the learned counsel appearing for the claimants, Smt. K.V. Resmi, the learned counsel appearing for respondent No.1 and Sri. V.P.K. Panicker, the learned counsel appearing for the 3[rd] respondent insurance company. 7. The first contention to be considered is about the violation of policy conditions. The specific contention put forward by the insurance company is with regard to the lack of a badge authorising the driver of the autorickshaw to drive the transport vehicle at the relevant time. The position of law in this regard is now settled against the insurance company as per the decision rendered by the Hon'ble Supreme Court in Mukund Dewangan v. Oriental Insurance Company Ltd. [2017(4) KHC 648], wherein it was held that the lack of badge or specific authorisation to drive a transport vehicle in respect of vehicles with unladen weight of below 7500 KG, cannot be treated as a violation of policy conditions. In the light of the observations made by the Hon'ble Supreme Court in the said decision, the contention raised by the 3[rd] respondent insurance company cannot be entertained, and M.A.C.A. No.2603 & 1135 of 2010 : 6 : therefore, I do not find any merit in M.A.C.A. No.1135.2010 submitted by the insurance company. 8. The next aspect relates to the quantum of compensation, which is sought to be enhanced in M.A.C.A. No.2603/2010. When considering the contentions raised therein and the materials placed before this Court, I find some force in the prayer sought by the claimants in this regard. It is discernible from the award that even though a monthly income of Rs.7500/- was claimed, the tribunal fixed the monthly income of the deceased as Rs.3,000/-. It is to be noted in this regard that in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], the Hon’ble Supreme Court fixed the monthly income of an ordinary worker, even without any evidence as Rs.4,500/- in respect of an accident occurred in the year 2004. Therefore, I am of the view that the monthly income of Rs.4,500/- can be taken in this case, which appears to be reasonable, as the accident in this case occurred in the year 2004. 9. Another crucial error committed by the tribunal related to the failure to make any addition towards future prospects. The deceased was aged 49 years at the time of the accident, and M.A.C.A. No.2603 & 1135 of 2010 : 7 : therefore, as per the observations in National Insurance Company Ltd. v. Pranay Sethi [ 2017(4) KLT 662], an addition of 25% of the monthly income should have been made. The multiplier applicable to this case is 13. It is also to be noted that the deduction made by the tribunal towards personal expenses was 1/3 whereas, considering the fact that the deceased left behind four dependents, namely wife, two children and mother, the proper deduction should have been 1/4[th] . Thus, while reassessing the compensation with the revised monthly income with an addition of 25%, the amount of compensation for loss of dependency would come to Rs.6,58,125/[(4500 + 25%) x 12x13x3/4)]. The amount already awarded by the tribunal under this head is Rs.3,12,000/-; therefore, the additional amount would come to Rs.3,46,125/-. 10. As regards the other heads, it is to be noted that the tribunal awarded an amount of Rs.10,000/- under the head of loss of consortium and a further sum of Rs.10,000/- for loss of love and affection. As per the observations made by the Hon’ble Supreme Court in Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130] and United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC M.A.C.A. No.2603 & 1135 of 2010 : 8 : 780] all the appellants, being the wife, children and mother are entitled to compensation for loss of consortium at the rate of 40,000/- each and therefore, the total amount would come to Rs.1,60,000/-. Since it was categorically observed by the Hon’ble Supreme Court in Satinder Kaur’s case (supra) that when compensation is awarded for loss of consortium, no separate amount needs to be granted towards loss of love and affection, the amount of Rs.10,000/- awarded by the tribunal for loss of love and affection was not warranted. Therefore, the said amount can be adjusted towards the additional amount granted by this Court towards the loss of consortium. Thus, the additional compensation under the said head would come to Rs.1,40,000/-. 11. The amount awarded towards funeral expenses was only Rs.5,000/-, whereas the actual amount payable is Rs.15,000/-. Therefore, a further sum of Rs.10,000/- is granted. No amount is granted towards the loss of estate, and as per Pranay Sethi ’s case (supra), the proper amount to be awarded under the said head is Rs.15,000/-, and hence, the said amount is also awarded. Thus, the additional compensation receivable by the claimants is determined as Rs.5,11,125/- (3,46,125+ M.A.C.A. No.2603 & 1135 of 2010 : 9 : ## 1,40,000+ 10000+ 15,000). In the light of the observations and findings, M.A.C.A. No.1135/2010 is hereby dismissed. M.A.C.A. No.2603/2010 is allowed by modifying the award dated 12.10.2009 passed in OP(MV) No.496/2000 by the Motor Accident Claims Tribunal, Wayanad Kalpetta, by awarding an additional amount of Rs.5,11,125/- (Rupees five lakhs eleven thousand one hundred and twenty five only). The 3[rd] respondent insurance company is directed to deposit the said amount along with interest at the rate of 7.5% per annum and proportionate cost from the date of petition till realisation. Since M.A.C.A. 2603/2010 was filed by the appellants/claimants with a petition to condone the delay of 813 days, the 3[rd] respondent insurance company shall be entitled to exclude the said period while computing the interest for the additional amount awarded. Sd/ZIYAD RAHMAN A.A. JUDGE ncd