MACA Nos. 994 & 374 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. THURSDAY, THE 5[TH] DAY OF OCTOBER 2023 / 13TH ASWINA, 1945 ``` ``` MACA NO. 994 OF 2013 ``` ``` OPMV 1583/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM ``` ## **`APPELLANT/PETITIONER:`** ``` LEELA, AGED 61 YEARS, W/O. JANARDHANAN, LEELA MANDIRAM, KOTTEKERAM, PARIPPALLY, KOLLAM. ``` ``` BY ADVS. SRI.P.SAMSUDIN SMT.NIMA JACOB ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 ARUN, S/O. MOHANAN UNNITHAN, CHARUVILA PUTHENVEEDU,KADAMPATTUKONAM, PARIPPALLY 681 574, KOLLAM.` - `2 THE MANAGER, NATIONAL INSURANCE CO. LTD PARAMESSWARAN PILLAI BHAVANAM, HOSPITAL ROAD, KOLLAM-691001` - `3 FAZAL, 324, KUNNUPURATHU VEEDU, PALLICKAL POST695604, KILIMANOOR, THIRUVANANTHAPURAM` - `4 FAZIYA, 324, KUNNUPURATHU VEEDU, PALLICKAL POST695604, KILIMANOOR, THIRUVANANTHAPURAM BY ADVS. SHRI.ANANDA RAJAN.N Joseph E M M.R.SASITH SRI.C.SADASIVAN NAIR LAL GEORGE` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2023, ALONG WITH MACA.374/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.994 & 374 of 2013 : 2 : ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 5[TH] DAY OF OCTOBER 2023 / 13TH ASWINA, 1945 MACA NO. 374 OF 2013 OPMV 1583/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM ``` ## **`APPELLANT/S:`** - `1 FAZAL (LEGAL HEIR OF R2) KUNNUMPURATHU VEEDU,PALLIKKAL,THIRUVANANTHAPURAM.` - `2 FASIYALEGAL HEIR AND MOTHER OF R 2 KUNNUMPURATHU VEEDU,PALLIKKAL,THIRUVANANTHAPURAM. BY ADV SRI.M.R.SASITH` ## **`RESPONDENT/S:`** - `1 LEELA AGED 52 YEARS W/O.JANARDHANAM,LEELA MANDIRAM,KOTTAKERAM PARIPALLY,KOLLAM.` - `2 ANEZ (DIED) KUNNUMPURATHU VEEDU,PALLIKKAL,THIRUVANANTHAPURAM.` - `3 ARUN S/O.MOHANAN UNNITHAN,CHARUVILA PUTHEN VEEDU,KADAMBATTUKONAM PARIPALLY,KOLLAM.` - `4 THE MANAGER NATIONAL INSURANCE CO.LTD,PARAMESWARAN PILLAIBHAVANAM,KOLLAM. BY ADVS. SRI.E.M.JOSEPH` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 05.10.2023, ALONG WITH MACA.994/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.994 & 374 of 2013 : 3 : ## JUDGMENT These appeals arise from the award passed by the Motor Accident Claims Tribunal, Kollam, in OP(MV) No.1583/2004. M.A.C.A. No.994/2013 is filed by the claimant in the said petition, whereas M.A.C.A. No.374/2013 is filed by the additional respondent Nos.4 and 5 in the said claim petition. 2. The facts which led to the filing of these appeals are as follows: The claim petition was submitted by the claimant seeking compensation for the death of one Vijayalakshmi, the mother of the claimant, due to the injuries sustained in a motor accident that occurred on 11.12.2003. According to the claimant, the deceased was hit by a motorcycle bearing registration No. KL-16/1578 ridden by the 2[nd] respondent in a rash and negligent manner while she was walking through the road. Consequent to the injuries, the deceased was taken to the hospital, and she succumbed to the injuries on 16.12.2003. The 1[st] respondent in the claim petition was the registered owner of the said vehicle, who passed away during the pendency of the claim petition. Consequently, respondent Nos.4 M.A.C.A. Nos.994 & 374 of 2013 : 4 : and 5, the appellants in M.A.C.A. No.374/2013, were impleaded in the party array. 3. The 2[nd] respondent filed a written statement disputing the accident and the quantum of compensation. The 3[rd] respondent insurance company filed a written statement admitting the coverage of the policy, but the liability was denied. They also contended that there was violation of policy condition as the 2[nd] respondent drove the motorcycle at the relevant time without a valid driving licence. The additional respondents 4 and 5, filed a written statement contending that the claim petition is not maintainable as against them. They also disputed the negligence on the part of the 2[nd] respondent, and the quantum of compensation was also disputed. 4. The evidence in this case consists of Exts.A1 to A7, and no evidence was adduced from the side of the respondents in the claim petition. After examining the materials placed on record, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent in the claim petition. However, taking note of the fact that the 2[nd] respondent was a minor at the relevant time, the tribunal found that there is statutory violation of Sections 4 and 5 of the Motor Vehicles Act, as the 1[st] respondent M.A.C.A. Nos.994 & 374 of 2013 : 5 : permitted the 2[nd] respondent, a person who was not competent to obtain a driving licence, to drive the vehicle. Therefore, the insurance company was exonerated from the liability, and the additional respondents 4 and 5, the legal heirs of the deceased 1[st] respondent, were held responsible for paying the compensation. The quantum of compensation was fixed as `1,05,000/- and additional respondent Nos.4 and 5 in the claim petition 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. 5. These appeals are submitted in such circumstances. M.A.C.A. No.374/2013 was filed by the additional 4[th] and 5[th] respondents, wherein they specifically challenged the liability imposed upon them, whereas, in M.A.C.A. No.994/2013, the claimant is seeking enhancement of compensation and also challenging the exoneration of the insurance company from the liability. 6. Heard Sri. P. Samsudin, the learned counsel appearing for the appellant in M.A.C.A. No.994/2013, Sri. M.R. Sasith Panicker, the learned counsel appearing for the appellants in M.A.C.A. No.374/2013 and Sri. E.M. Joseph, the learned counsel appearing M.A.C.A. Nos.994 & 374 of 2013 : 6 : for the 3[rd] respondent in the claim petition, the insurer of the said vehicle. 7. The first issue to be considered is with regard to the finding of the tribunal exonerating the insurance company from liability. The learned counsels appearing for the appellants in both appeals are contending that, even if it is assumed that there were violations of policy conditions, the insurance company should not have been exonerated. After considering the materials placed on record, I find some force in the contention put forward by the appellants in this regard. As far as the claimant is concerned, she is entitled to compensation as the deceased died due to the injuries sustained in a motor accident. As far as the question of violation of policy conditions is concerned, the same is something between the insurer and insured, relating to the breach on the part of the insured in fulfilling obligations arising from the terms of the insurance contract. Under no circumstances, due to that dispute between the parties, the claimant's entitlement to receive compensation cannot be denied. It is a well settled position of law in this regard that, in a case where the question arises is relating to violation of policy conditions, the proper course is to direct the insurance company to M.A.C.A. Nos.994 & 374 of 2013 : 7 : pay the compensation at the first instance by permitting the insurer to recover the said amount from the registered owner of the said vehicle, after satisfying the said award. In this case, it is seen from the award that the tribunal, by taking note of the fact that the registered owner permitted a minor to drive the said vehicle, exonerated the insurance company from the liability. After considering the reasons cited by the tribunal in this regard, I do not find any justification to sustain the same. Of course, it is true that when the 1[st] respondent permitted the 2[nd] respondent, who was a minor at the relevant time, to drive the said vehicle, he not only violated the terms and conditions in the policy issued by the insurance company but also violated the statutory provisions. However, that alone cannot be a reason to exonerate the insurance company from satisfying the award at the first instance. Exoneration of the insurer is something which does not affect the right of the claimant, who is a 3[rd] party, as far as the policy of the insurance is concerned. Therefore, merely because a breach was committed by the 1[st] respondent in fulfilling the terms of the contract of insurance, that may not be sufficient to justify an order exonerating the insurance company from the liability to pay M.A.C.A. Nos.994 & 374 of 2013 : 8 : compensation at the first instance. Therefore, the finding of the Tribunal, exonerating the insurance company from the liability at the first instance, is hereby set aside, by holding that the insurance company shall be liable to pay the compensation with a right to get it recovered from the registered owner of the said vehicle, after satisfying the award. 8. The next question that arises relates to the person from whom the recovery can be affected by the insurance company after satisfying the award. As per the award passed by the tribunal, the responsibility to pay the compensation was upon the additional respondents 4 and 5, who are the appellants in M.A.C.A. No.374/2013. It is discernible from the award that respondents 4 and 5 in the claim petition were treated as the joint owners of the vehicle, and the liability was imposed upon them. However, it is an undisputed fact that, at the time of the accident, the vehicle stood registered in the name of the 1[st] respondent, who died during the pendency of the claim petition. The insurance policy is also issued in his name. Being the legal heirs of the 1[st] respondent, they can be held liable to pay the compensation, but the extent of liability would be confined to the properties which they inherited consequent to the M.A.C.A. Nos.994 & 374 of 2013 : 9 : death of the 1[st] respondent. Therefore, even though the liability of the 4[th] and 5[th] respondents are to be upheld, it has to be clarified that such liability would be limited to the extent of the properties they inherited from the 1[st] respondent, the deceased registered owner of the said vehicle. In the light of the above, it is clarified that the extent of their liability is something to be considered by the tribunal at the time of execution of the award. 9. The next aspect is relating to the quantum of compensation. The learned counsel for the appellant in M.A.C.A. 994/2013 contends that the amount awarded by the tribunal is grossly inadequate. From the award, it can be seen that to assess the compensation for loss of dependency, the tribunal had taken the monthly income as `2,000/-, whereas the monthly income claimed was `2,500/-. In the facts and circumstances of the case, I am of the view that the monthly income of `2,500/- can be taken into account. However, at this juncture, the learned counsel for the insurance company would point out that the deceased left behind only one dependent, yet the tribunal made a deduction of 1/3, whereas the proper deduction should have been ½. The aforesaid contention is to be accepted, as it is a well settled position of law. M.A.C.A. Nos.994 & 374 of 2013 : 10 : Therefore, the deduction made by the tribunal towards the personal expenses was not correct. In such circumstances, even if the monthly income of `2500/- as claimed by the claimant, is adopted, there would not be any increase in the compensation payable under the head of loss of dependency. Therefore, I am of the view that no revision is necessary under the said head. 10. When moving on to the said heads, it is seen that no amount is granted towards loss of consortium. As per the principles laid down by the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [ 2017(4) KLT 662], the claimant is entitled to compensation under this head for `40,000/-. However, it is seen that an amount of `10,000/- is granted towards loss of love and affection. It is well settled position of law in the light of the decision rendered by the Hon’ble Supreme Court in New India Assurance Company Ltd. v. Somwati & Ors. [(2020) 9 SCC 644] that, when compensation for loss of consortium is awarded, no further compensation under separate head of loss of love and affection needs to be granted. Therefore, I am of the view that while granting compensation of `.40,000/- under the head of loss of consortium, the amount of `10,000/- already granted under the head M.A.C.A. Nos.994 & 374 of 2013 : 11 : of love and affection can be adjusted. Thus, the additional amount receivable by the appellant under this head is fixed as `30,000/-. In addition to the same, the appellant is entitled to an amount of `15,000/- for loss of estate and a further amount of `15,000/- for funeral expenses as no amounts were granted by the tribunal under these heads. In such circumstances, the additional amount receivable by the appellant in M.A.C.A. No.994/2013 is fixed as `60,000/- (30000 + 15000 + 15000). In the light of the aforesaid observations and findings, the award dated 25.10.2010 in OP(MV) No.1583/2004 passed by the Motor Accident Claims Tribunal, Kollam, is hereby modified by setting aside the finding of the tribunal exonerating the 3[rd] respondent insurance company. Besides the same, it is also ordered that the claimant/appellant in M.A.C.A. 994/2013 shall be entitled to an additional compensation of `60,000/- and thus the total amount of compensation is reassessed as `1,65000/- (Rupees One lakh sixty thousand only). The said amount shall be deposited by the 3[rd] respondent in the claim petition/ insurance company with interest at the rate of 7.5% and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. M.A.C.A. Nos.994 & 374 of 2013 : 12 : After such deposit, the 3[rd] respondent insurance company can recover the said amount from the 4[th] and 5[th] respondents, subject to the extent of the inheritance of the properties of the 1[st] respondent. It is further clarified that, as there was a delay of 797 days in filing the appeal, the insurance company shall be entitled to exclude the said period while computing the interest. Sd/ZIYAD RAHMAN A.A. JUDGE ncd