MACA Nos. 827 of 2012 and 833 of 2012

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 11TH DAY OF JULY 2017/20TH ASHADHA, 1939 MACA.No. 827 of 2012 () -----------------------AGAINST THE AWARD IN O.P(M.V)812/2009 of M.A.C.T., KOTTAYAM DATED 20-01-2012 APPELLANT/3RD RESPONDENT: ---------------------------------- NATIONAL INSURANCE CO.LTD. KOTTAYAM, REP. BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, COCHIN-682035. BY ADV. SRI.E.M.JOSEPH RESPONDENTS/CLAIMANT & RESPONDENTS 1 & 2 : -------------------------------------------------------- ## 1. MURALEEDHARAN S/O.RAVHAVAN, PADANILATHU, THRIKODITHANAM P.O., CHANGANACHERRY, KOTTAYAM DIST.-686 105. 2. SANTHOSH, AGED 49, S/O.MANOHARAN, SAKETHAM VEEDU, AARAMALAKUNNU, THRIKODITHANAM P.O., CHANGANACHERRY, KOTTAYAM DIST.-686 105. ## 3. AJITHA SANTHOSH, - W/O.SANTHOSH, 11/522, VARAPUZHA, THRIKODITHANAM P.O., CHANGANACHERRY, KOTTAYAM DIST.-686 105. R1 BY ADV. SRI.PHILIP T.VARGHESE R1 BY ADV. SRI.THOMAS T.VARGHESE R1 BY ADV. SMT.ACHU SUBHA ABRAHAM R1 BY ADV. SMT.T.M.BINITHA R1 BY ADV. SMT.AFSANA ASHRAF R1 BY ADV. SMT.C.A.SABITHA R1 BY ADV. SRI.ASHOK THAMPAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ALONG WITH M.A.C.A.NO.833 OF 2012 ON 11-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** **-------------------------------------M.A.C.A.Nos.827 & 833 of 2012 -----------------------------------Dated this the 11[th] day of July, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** These appeals arise out of the award dated 20.1.2012 passed by the Motor Accidents Claims Tribunal, Kottayam in O.P.(M.V)No.812 of 2009, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Bhageerathi Amma, mother of the appellant/claimant in M.A.C.A.No.833 of 2012, who died in a motor accident occurred on 1.11.2003, while she was walking along the footpath of a public road. At the place of accident, she was knocked down by a motorcycle bearing Reg.No.KL-3/B-1870, ridden and owned by respondents 1 and 2 respectively and insured with the third respondent (the appellant in M.A.C.A.No.827 of 2012). As a result of the accident, the deceased sustained fatal injuries and succumbed to the injuries on 15.11.2003, while undergoing inpatient treatment at the Medical College Hospital, Kottayam. Alleging that the accident occurred due to the rash and negligent riding of the motorcycle by the first respondent rider, claim petition was filed before the Tribunal claiming a total compensation of 3,00,000/-, under different heads. ₹ M.A.C.A.Nos.827 & 833 of 2012 2 2. Before the Tribunal, the first and second respondents remained ex parte. The third respondent insurer filed written statement contending that there was delay in filing the claim petition before the Tribunal and as such, the same is liable to be dismissed. The insurer contended that, motorcycle bearing Reg.No.KL-3/B-1870 was not involved in the alleged accident. On seeing the deceased lying on the road, the 1[st] respondent rider, who was her neighbour had taken her to the hospital. The insurer has also disputed the age, occupation and monthly income of the deceased. 3. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant and an occurrence witness in Crime No.842 of 2003 of Changanassery Police Station was examined as PW1. On the side of the respondents, the deposition of one Sabu, who was examined as PW2 before the Judicial First Class Magistrate Court, Changanassery in C.C.No.644 of 2004 arising out of the aforesaid crime, was marked as Ext.B1. 4. After considering the evidence and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motorcycle by the first respondent rider. Since the said vehicle was covered by a valid insurance policy at the M.A.C.A.Nos.827 & 833 of 2012 3 time of accident, the third respondent insurer was held liable to indemnify the second respondent owner. Under different heads, the Tribunal awarded a total compensation of 84,500/- and directed the₹ third respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 7.5% per annum from the date of petition, i.e., from 26.06.2009 till realisation, with proportionate costs. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in M.A.C.A.No.833 of 2012. The third respondent insurer has filed M.A.C.A.No.827 of 2012 challenging the said award to the extent the insurer of the motorcycle is fastened with the liability to indemnify the second respondent owner. 6. We heard arguments of the learned counsel for the appellant/claimant in M.A.C.A.No.833 of 2012 and also the learned counsel for the 3[rd] respondent insurer (the appellant in M.A.C.A.No.827 of 2012). 7. The issues that arise for consideration in these appeals are as to whether the Tribunal was justified in fastening the liability on the insurer of the motorcycle to indemnify the second respondent owner, in the matter of payment of compensation to the appellant/claimant; and M.A.C.A.Nos.827 & 833 of 2012 4 whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under different heads. 8. The learned counsel for the third respondent insurer (the appellant in M.A.C.A.No.827 of 2012) would contend that, there was delay on the part of the appellant/claimant in filing the claim before the Tribunal. Though, the written statement filed by the insurer contained such a contention, from the impugned award we find that the question of delay was never raised as an issue before the Tribunal. 9. Section 166 of the Motor Vehicles Act, 1988 deals with application for compensation. Going by sub-section (3) of Section 166, no application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 shall be entertained unless it is made within six months of the occurrence of the accident. However, going by the proviso to sub-section (3) of Section 166, the Claims Tribunal may entertain the application after the expiry of the said period of six months but not later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. The period of limitation provided under sub-section (3) of 166 of the Act was completely done away with, vide Section 53 of the Motor Vehicles (Amendment) Act, 1994 by omitting the said sub-section, with M.A.C.A.Nos.827 & 833 of 2012 5 effect from 14.11.1994. 10. In **M/s.Purohit and Company v. Khatoonbee (2017 (4) SCC 783)** the question which came up for consideration before the Apex Court was as to the consequence of omission of sub-section (3) of Section 166 of the Motor Vehicles Act, 1988 vide Section 53 of the Motor Vehicles (Amendment) Act, 1994. Does the above omission have the effect of allowing a claimant, to file a claim application, at any time, and whenever he chooses; even after a decade? Before the Apex Court it was contended that, since no period of limitation has been prescribed by the Legislature, Article 137 of the Limitation Act, 1963 may be invoked. The Apex Court expressed its inability to countenance the said contention for more than one reason. Firstly, an Act like the Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, if otherwise the claim is found genuine. Secondly, it is a self-contained Act which prescribes the mode of filing the application, procedure to be followed and award to be made. The Parliament, in its wisdom, realised the grave injustice and injury being caused to the heirs and legal representatives of the victims who suffer bodily injuries/die in accidents, by rejecting their claim petitions at the threshold on the ground of limitation, and purposely deleted sub-section M.A.C.A.Nos.827 & 833 of 2012 6 (3) of Section 166, which provided the period of limitation for filing the claim petitions and this being the intendment of the Legislature to give effective relief to the victims and their families untrammeled by the technicalities of limitation, invoking of Article 137 of the Limitation Act would defeat the intendment of the Legislature. 11. In **Purohit's case (supra)** the Apex Court held that, a claim raised before the Motor Accidents Claims Tribunal, can be considered to be genuine, so long as it is a live and surviving claim. It is not as if, it can be open to all and sundry, to approach a Motor Accidents Claims Tribunal, to raise a claim for compensation, at any juncture, after the accident had taken place. The individual concerned, must approach the Tribunal within a reasonable time. The question of reasonability would naturally depend on the facts and circumstances of each case. 12. In **Purohit's case (supra)** the Apex Court was dealing a case in which the daughter of the claimants before the Tribunal died in a motor accident occurred on 2.2.1977. Seeking compensation on account of her death, claim petition was filed before the Tribunal on 23.2.2005, i.e., after a period of more than 28 years. The Apex Court noticed that, the only justification indicated by the claimants in their application for M.A.C.A.Nos.827 & 833 of 2012 7 condonation of delay filed before the Tribunal, for initiating proceedings after a lapse of 28 years, was that they are poor persons and they have no knowledge about the law. The Apex Court held that the above explanation tendered by the claimants, for approaching the Tribunal after a period of 28 years, cannot be accepted, and that, the claim pertaining to an accident which had occurred on 2.2.1977 was stale and ought to have been treated as a dead claim, at the point of time, when the claimants approached the Tribunal by filing a claim petition, on 23.2.2005. 13. In the instant case, as we have already noticed, in the written statement filed before the Tribunal, the insurer contended that there was delay on the part of the claimant in filing the claim before the Tribunal and as such, the claim petition is liable to be dismissed. However, as discernible from the impugned award, the question of delay in filing the claim petition was never raised as an issue before the Tribunal. Since, the period of limitation provided under sub-section (3) of 166 of the Act was completely done away with, by omitting the said sub-section with effect from 14.11.1994, the insurer, who failed to raise the question of delay in filing the claim petition as an issue before the Tribunal, cannot now be permitted to raise a contention in this appeal M.A.C.A.Nos.827 & 833 of 2012 8 that, the Tribunal ought to have dismissed the claim petition, as the claimant offered no explanation for the delay of 6 years in filing the claim petition. Therefore, we deem it appropriate to repel the contention raised in this regard by the appellant insurer in M.A.C.A.No.827 of 2012. 14. The learned counsel for the insurer would also contend that, the finding of the Tribunal that the deceased died on account of the injuries sustained in the motor accident occurred on 1.11.2003 involving motorcycle bearing Reg.No.KL-3/B-1870 cannot be sustained, since no reliable materials were placed before the Tribunal to arrive at such a conclusion. The learned counsel would point out that, vide judgment dated 28.7.2007 in C.C.No.644 of 2004 (a certified copy of which is made available for the perusal of this Court) the Judicial First Class Magistrate Court, Changanassery has already acquitted the first respondent rider, since the prosecution failed to prove that he was the rider of the offending motorcycle at the time of accident and that, the accident occurred due to any rash and negligent act on his part. The document marked as Ext.B1 is the deposition of one Sabu, who was examined as PW2 before the Magistrate Court in C.C.No.644 of 2004. 15. In **Venugopala Panicker v. Unnikrishna Panicker and others (2015 (2) KHC 621)** , a Division Bench of this Court in which M.A.C.A.Nos.827 & 833 of 2012 9 one among us (Anil K. Narendran, J) was a member, held that the standard of proof required to prove negligence in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 is different from the standard of proof required in a criminal case. In a claim before Tribunal, standard of proof is much below than what is required in a criminal case as well as in a civil case. 16. In the instant case, before the Tribunal, one Baby was examined as PW1, in order to prove the alleged accident as the cause of injury. The aforesaid Baby is none other than the occurrence witness cited in Ext.A1 First Information Report as CW2. PW1 supported the case of the claimant. PW1 has stated in categorical terms that he had witnessed the alleged accident occurred on 1.11.2003 involving motorcycle bearing Reg.No.KL-3/B-1870. As discernible from the judgment dated 28.7.2007 of the Magistrate Court in C.C.No.644 of 2004, one Sabu, another occurrence witness cited in Ext.A1 F.I.R was examined before the Magistrate Court as PW2, who has deposed that he had witnessed the alleged motor accident, and PW2 has also identified the accused, the first respondent rider. One Sadasivan, who was examined as PW3 before the Magistrate Court, has deposed that he had witnessed the alleged motor accident, and he has also identified the M.A.C.A.Nos.827 & 833 of 2012 10 accused, the first respondent rider. However, the Magistrate Court arrived at a conclusion that, the evidence of PWs.2 and 3 do not bring out the rashness and negligence on the part of the rider of the motorcycle and accordingly, negatived the prosecution case on that aspect. Baby, who was examined as PW1 before the Tribunal, was never examined before the Magistrate Court, though he was cited as an occurrence witness in the crime registered in connection with the alleged motor accident. Based on the oral evidence of PW1 and also the documents on record, the Tribunal arrived at a finding that the accident in question occurred due to the rash and negligent riding of the motorcycle by the first respondent rider. The acquittal of the first respondent rider in the criminal case, i.e., C.C.No.644 of 2004 on the file of the Judicial First Class Magistrate Court, Changanassery is not at all a valid ground to interfere with the aforesaid finding of the Tribunal in the impugned award. Therefore, we deem it appropriate to repel the contention raised in this regard by the appellant insurer in M.A.C.A.No.827 of 2012. 17. Now, we shall consider the question as to whether the compensation awarded by the Tribunal under different heads warrants interference in M.A.C.A.No.833 of 2012 filed by the appellant/claimant. M.A.C.A.Nos.827 & 833 of 2012 11 18. The accident is of the year 2003 and at the time of accident the deceased was a housewife aged 72 years. The Tribunal, considering the facts and circumstances of the case, fixed the annual income of the deceased notionally at ₹15,000/for the purpose of assessing compensation under different heads. The deceased had undergone inpatient treatment for a period of 15 days, which is evident from Ext.A5 postmortem certificate, in which the date of death is noted as 15.11.2003. 19. The compensation awarded by the Tribunal under different heads reads thus:- |ds reads thus:-||| |---|---|---| |Head|Amount claimed|Amount<br>awarded| |Transportation|₹750.00|₹1,000.00| |Funeral expenses|₹15,000.00|₹5,000.00| |Damage to clothings|₹500.00|₹500.00| |Bystander's expenses|₹1,000.00|₹3,000.00| |Loss of dependency|₹2,50,000.00|₹50,000.00| |Pain and sufferings|₹1,00,000.00|₹10,000.00| |Loss of love and affection|₹1,00,000.00|₹10,000.00| |Loss of estate|₹1,00,000.00|₹5,000.00| |Total|₹5,87,750.00<br>limited to<br>₹3,00,000/-|₹84,500.00| 20. Towards funeral expenses, the Tribunal awarded a sum of M.A.C.A.Nos.827 & 833 of 2012 12 ₹5,000/-. In **Rajesh** v. **Rajbir Singh [2013 (3) KLT 89 (SC)]** the Apex Court awarded a sum of 25,000/- under this head. In that case,₹ the accident was of the year 2007. In the instant case, the accident is of the year 2003. Therefore, we deem it appropriate to re-fix the compensation under the head funeral expenses as 10,000/-, resulting₹ an additional compensation of **5,000/-₹** . 21. Towards medical expenses, the appellant claimed a sum of ₹15,000/-. However, no amount was awarded by the Tribunal under this head on the ground that no bills were produced. The said reasoning of the Tribunal cannot be sustained, since Ext.A7 series of medical bills for a total sum of 15,000/- were produced and marked before the₹ Tribunal. Admittedly, the deceased had undergone inpatient treatment for a period of 15 days with severe head injuries. In such circumstances, we find no reason to disallow the medical expenses to the tune of 15,000/- covered by Ext.A7 series of medical bills. In the₹ result, the appellant will be entitled for a sum of **₹ 15,000/-** under the head medical expenses. 22. The Tribunal awarded a sum of 3,000/- under the head₹ bystander's expenses, at the rate of 200/- per day for a period of 15₹ days, which represents just and reasonable compensation under that M.A.C.A.Nos.827 & 833 of 2012 13 head. However, no amount was awarded under the head extra nourishment. Considering the fact that the accident is of the year 2003, we deem it appropriate to grant a sum of **₹ 1,500/-** (100x15) under the head extra nourishment, which would represent just and reasonable compensation under that head. 23. Towards loss of dependency, the Tribunal awarded a sum of ₹50,000/-, fixing the annual income of the deceased notionally at ₹15,000/-, deducting 1/3 towards her personal and living expenses, and applying '5' as the multiplier. At the time of accident, the deceased was a housewife aged 72 years, which fact is not in dispute. Going by the decision of the Apex Court in **Lata Wadhwa v. State of Bihar (AIR 2001 SC 3218)** for the valuable services rendered by the deceased, a sum of 20,000/- can be reckoned as the annual income, for the₹ purpose of assessing dependency compensation. Therefore, the compensation payable under the head loss of dependency is reworked as 66,666/- (20,000x5x2/3), resulting an additional compensation of₹ **16,666/-₹** . 24. Towards loss of love and affection, the Tribunal awarded a sum of 10,000/-. In ₹ **Rajesh's case (supra)** , The Apex Court awarded a sum of 1,00,000/- to three minor children of the deceased who was₹ M.A.C.A.Nos.827 & 833 of 2012 14 aged 33 years at the time of accident. The accident in that case was of the year 2007. In the instant case, the accident is of the year 2003 and at the time of accident the deceased was aged 72 years, who was survived by is son aged 56 years. In such circumstances, we deem it appropriate to re-fix the compensation under the head loss of love and affection at 20,000/-, resulting an additional compensation of₹ **10,000/-₹** . 25. Towards pain and suffering and loss of estate, the Tribunal awarded a sum of 10,000/- and 5,000/- respectively. Considering the₹ ₹ nature of injuries sustained and the treatment the deceased had undergone for 15 days, we deem it appropriate to re-fix the compensation under the head pain and suffering to 15,000/-, resulting₹ an additional compensation of **5,000/-₹** . 26. The compensation awarded by the Tribunal under the head loss of estate represents just and reasonable compensation, which requires no enhancement. 27. In the result, the appellant/claimant in M.A.C.A.No.833 of 2012 will be entitled for an additional compensation of **₹ 53,166/-** (5,000+15,000+1,500+16,666+10,000+5,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition M.A.C.A.Nos.827 & 833 of 2012 15 till realisation. 28. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer (appellant in M.A.C.A.No.827 of 2012) shall deposit the said amount before the Tribunal, within a period of two months from the date of receipt of a certified copy of this judgment. 29. Accordingly, M.A.C.A.No.833 of 2012 filed by the claimant is disposed of as above. 30. M.A.C.A.No.827 of 2012 filed by the insurer (third respondent in M.A.C.A.No.833 of 2012) fails and the same is accordingly dismissed. No order as to costs. Sd/- **C.T. RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS