MACA.837/2012 & MACA.2009/2012, High Court of Kerala at Ernakulam

1 MACA.837/2012, MACA.2009/2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** ## **MACA.No.837 OF 2012** **AGAINST THE AWARD IN OPMV 325/2008 DATED 05-11-2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANTS/PETITIONERS :** - **1 BINDU SHIJIKUMAR POYYAPLACKAL (H), KOTTAMURY P.O., CHANGANASSERRY.** - **2 NISHA P.S. (MINOR)** - **(D.O.B-11-7-95) REPRESENTED BY NEXT FRIEND BINDHU SHIJI KUMAR OF DO, DO.** - **3 SRUTHI P.S. (MINOR) (D.O.B-24-2-97) REPRESENTED BY NEXT FRIEND BINDHU SHIJI KUMAR OF DO, DO.** - **4 VISHNU P.S (MINOR) (D.O.B-8-2-99) REPRESENTED BY NEXT FRIEND BINDHU SHIJI KUMAR OF DO, DO.** - **5 GOPI P.K.** - **POYYAPLACKAL, SANTHAMPARA P.O., IDUKKI.** - **6 CHELLAMMA GOPI OF DO, DO.** - **BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS KACHIRAMATTOM** ## **RESPONDENTS/RESPONDENTS:** - **1 KUSUMAM MOONGAKAVUNKAL, MANDAPPALLY VIA, CHANGANACHERY. PIN:686101.** - **2 SATHEESAN N.P. OF DO.DO.** 2 MACA.837/2012, MACA.2009/2012 **3 THE ICICI LUMBARD GENERAL INSURANCE CO. LTD. KOTTAYAM-686001.** **R3 BY ADV. SRI.R.AJITH KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2019, ALONG WITH MACA.2009/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA.837/2012, MACA.2009/2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** ## **MACA.No.2009 OF 2012** **AGAINST THE AWARD IN OPMV 325/2008 DATED 05-11-2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANTS/RESPONDENT NO.1 & 2:** - **1 KUSUMAM MOONGAKKAVUMKAL, MADAPPALLY, VIA CHANGANACHERRY, KOTTAYAM DISTRICT.** - **2 SATHEESHAN MOONGAKKAVUMKAL, MADAPPALLY, VIA CHANGANACHERRY, KOTTAYAM DISTRICT.** **BY ADV. SRI.M.P.MADHAVANKUTTY** ## **RESPONDENTS/PETITIONER NO.1 TO 6 & RESPONDENT NO.3:** - **1 BINDHU SHIJIKUMAR W/O.LATE SHIJIKUMAR, POYYAPLACKAL HOUSE, KOTTAMURI.P.O, CHANGANACHERRY. 686 101.** - **2 NISHA.P.S. (MINOR) D/O.LATE SHIJIKUMAR, POYYAPLACKAL HOUSE, KOTTAMURI.P.O, CHANGANACHERRY. 686 101.(REPRESENTED BY NEXT FRIEND BINDHU SHIJIKUMAR).** - **3 SRUTHI.P.S. (MINOR) D/O.LATE SHIJIKUMAR, POYYAPLACKAL HOUSE, KOTTAMURI.P.O, CHANGANACHERRY. 686 101.(REPRESENTED BY NEXT FRIEND BINDHU SHIJIKUMAR).** - **4 VISHNU.P.S. (MINOR) S/O.LATE SHIJIKUMAR, POYYAPLACKAL HOUSE, KOTTAMURI.P.O, CHANGANACHERRY. 686 101.(REPRESENTED BY NEXT FRIEND BINDHU SHIJIKUMAR).** 4 MACA.837/2012, MACA.2009/2012 - **5 GOPI.P.K. POYYAPLACKAL HOUSE, KOTTAMURI.P.O, CHANGANACHERRY. 686 101.** - **6 CHELLAMMA GOPI POYYAPLACKAL HOUSE, KOTTAMURI.P.O, CHANGANACHERRY. 686 101.** - **7 THE ICICI LUMBARD GENERAL INSURANCE CO. LTD. KOTTAYAM. 686 001.** - **R1 TO R6 BY ADV. SRI.PHILIP T.VARGHESE R1 TO R6 BY ADV.SRI.THOMAS KACHIRAMATTOM** **R7 BY ADV. SRI.K.B.RAMANAND** **R7 BY ADV. SRI.R.AJITH KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2019, ALONG WITH MACA.837/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.837/2012, MACA.2009/2012 5 ## **P.B.SURESH KUMAR, J.** **----------------------------------------------M.A.C.A. Nos.837 & 2009 of 2012 -----------------------------------------------** ## **Dated 3rd September, 2019.** ## **J U D G M E N T** Among the appeals, M.A.C.A.No.837 of 2012 is by the claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal and M.A.C.A. No. 2009 of 2012 is by the owner and driver of the vehicle involved in the accident which was the subject matter of the said proceedings. The parties are referred to in this judgment, as they appear in the proceedings before the Tribunal. 2. One Shijikumar, aged 34 years, died in a motor accident took place on 28.12.2007. On the fateful day, ShijiKumar was standing on the platform of a moving goods autorickshaw owned by the first respondent and driven by the second respondent. The vehicle in the course of its movement overturned and Shijikumar fell on the road and sustained injuries. Later, Shijikumar succumbed to the injuries sustained by him in the occurrence. The parents, wife and three minor children of Shijikumar instituted the proceedings for compensation alleging that the accident occurred on account of the negligence of the second respondent. They have, therefore, claimed 6 MACA.837/2012, MACA.2009/2012 compensation from respondents 1 and 2 as also the insurer of the goods autorickshaw, namely the third respondent. Respondents 1 and 2 contested the claim petition contending that the vehicle at the relevant time was covered by a policy of insurance issued by the third respondent and the compensation, if any, payable to the claimants is, therefore, to be paid by the third respondent. The third respondent, however, contested the claim petition contending that the deceased who was standing on the platform of a moving goods autorikshaw is not covered by the statutory policy of insurance issued by them and they have, therefore, no liability to indemnify the insured. The Tribunal found that the accident occurred on account of the negligence of the second respondent. It then computed the compensation payable to the claimants at Rs.6,38,700/- and passed an award directing respondents 1 and 2 to pay the said amount to the claimants holding that the deceased was not a person covered by the statutory policy of insurance issued by the third respondent. As noted, the claimants as also respondents 1 and 2 are aggrieved by the said decision of the Tribunal and hence these appeals. 3. Heard the learned counsel on either side. 4. The learned counsel for the appellants in MACA No.2009 of 2012, namely respondents 1 and 2 in the proceedings, contended that in so far as it is admitted that the vehicle was covered by a policy MACA.837/2012, MACA.2009/2012 7 of insurance, the Tribunal ought to have directed the third respondent to pay compensation to the claimants and then realise the same from the first respondent. It was pointed out by the learned counsel that the said course is adopted invariably by the Apex Court in all cases including cases where the insurer has no liability in terms of the policy, as the question whether such a course could be adopted in a case where the insurer has no liability is pending consideration before a larger bench of the Apex Court in a reference. The decision of the Apex Court in **Manager, National Insurance Co. Ltd. v. Saju P.Paul and another** (2013 KHC 4013) was relied on by the learned counsel to substantiate the said contention. 5. The learned counsel for the appellants in MACA No.837 of 2012, viz, the claimants in the proceedings, supported the contention raised by the learned counsel for respondents 1 and 2. In addition, the learned counsel contended that the compensation granted by the Tribunal to the claimants is grossly inadequate. 6. The learned counsel for the third respondent contended that the deceased being a person who was admittedly standing on the platform of a moving goods autorickshaw, he is not covered by the statutory policy issued by the third respondent and as such, the Tribunal cannot be found fault with for having exonerated the third respondent from the liability to pay compensation to the claimants. 8 MACA.837/2012, MACA.2009/2012 7. I have considered the contentions raised by the learned counsel for the parties. 8. Ext.A2 is the charge sheet filed by the police in the case registered in connection with the accident. As noted by the Tribunal, it is mentioned in Ext.A2 charge sheet that the deceased was standing on the platform of the moving goods autorickshaw at the time of accident. In the absence of any contrary case for the claimants or for respondents 1 and 2, the statement to that effect made in Ext.A2 charge sheet can be accepted as correct. If that be so, the deceased cannot be treated as a third party covered by the statutory policy of insurance stated to have been issued by the third respondent. The materials on record indicate that goods were being carried in the vehicle at the time of accident. In so far as the deceased was standing on the platform of the vehicle along with the goods, he cannot also be considered as the owner or the authorised representative of the owner of the goods carried in the vehicle [See **National Insurance Co. Ltd.** **v. Cholleti Bharatamma** (2008)1 SCC 423 and **New India Assurance Co. Ltd. v. Alekutty Antony** 2009(4) KLT 130)]. The finding rendered by the Tribunal that the statutory policy issued by the third respondent would not cover the risk of the deceased is, therefore, in order. 9. In claim petitions filed under Sections 163A and 166 of 9 MACA.837/2012, MACA.2009/2012 the Motor Vehicles Act 1988, an insurer is entitled to raise defences available to them in terms of Section 149(2) of the said Act. The defences available to the insurer under the said provision relate to breach of the conditions of the policy of insurance in relation to matters dealt with therein, and enforceability of the policy of insurance, for being void on the ground that it was obtained by nondisclosure of a material fact or by a representation of fact which was false in some material particular. The insurer, however, needs to take up one or more of the defences aforesaid only in proceedings where it has the liability otherwise to indemnify the insured in terms of the policy. The concept of pay and recovery would arise only in cases where the insurer has the liability otherwise to indemnify the insurer [See **National Insurance Co. Ltd. v. Swaran Singh,** (2004) 3 SCC 297]. In cases where the question is as to whether the policy of insurance is enforceable including cases where the insurer contends that the risk in respect of which the policy of insurance is sought to be enforced is not a risk covered by the policy of insurance, if the Tribunal answers the question in favour of the insurer, there is no question of the Tribunal directing the insurer to pay compensation to the claimant and then permitting the insurer to recover the same from the insured, for, there has been no contract of insurance between the insurer and the insured in such cases. The decisions cited by the learned counsel 10 MACA.837/2012, MACA.2009/2012 for respondents 1 and 2 where the Apex Court has issued directions to the insurer to pay compensation to the claimants and then realise the same from the insured, even when the insurer has no liability either under the Motor Vehicles Act or under the policy of insurance, can be understood only as decisions rendered by the Apex Court in exercise of its power under Article 142 of the Constitution of India. Such directions cannot be issued by this Court while exercising the power under Section 173 of the Motor Vehicles Act, for the scope of the jurisdiction vested in the High Court under that provision is only to examine the correctness of the decision taken by the Tribunal. The contention raised by the learned counsel for respondents 1 and 2 is, therefore, only to be rejected. 10. I shall now deal with the correctness of the quantum of compensation granted by the Tribunal. Though it is stated in the claim petition that the deceased was earning a sum of Rs.8,000/- per month, in the absence of supporting evidence, the Tribunal has reckoned the monthly income of the deceased only at Rs.4,000/- for the purpose of computing the compensation payable to the claimants for loss of dependency. In the absence of any evidence in support of the plea as regards the income of the deceased, in the light of the decision of the Apex Court in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], where 11 MACA.837/2012, MACA.2009/2012 the Apex Court has reckoned the monthly income of a similarly placed person at Rs.4,500/- in the context of the accident took place in the year 2004, I am of the view that the monthly income of the deceased in the instant case could have been certainly reckoned by the Tribunal at Rs.5,000/-, in the context of the accident took place in 2007. In the light of the decision of the Apex Court in **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], as the dependants of the deceased were six in number, one fourth of the income has to be deducted towards personal expenses, and as the deceased was aged below 40, 40% of the income reckoned has to be added towards future prospects for arriving at the multiplicand while computing the compensation for loss of dependency. As the deceased was aged 34, the multiplier to be applied for the said purpose is '16'. If compensation for loss of dependency is arrived at on that basis, the same would come to Rs.10,08,000/-(Rs.5000x12x3/4x140/100x16). As the Tribunal has granted only a sum of Rs.5,76,000/- towards compensation under that head, the claimants would be entitled to an additional compensation of Rs.4,32,000/-. 11. In the light of the decision of the Apex Court in **Pranay Sethi** , and having regard to the fact that the accident in the instant case is one that took place in the year 2007, I am of the view that the Tribunal should have granted Rs.30,000/- to the wife of the 12 MACA.837/2012, MACA.2009/2012 deceased towards compensation for loss of consortium. Similarly, in the light of the said decision, the Tribunal should have granted to the claimants Rs.10,000/- towards compensation for loss of estate and Rs.10,000/- towards funeral expenses. The Tribunal has granted only a sum of Rs.20,000/- under those heads. The claimants are, therefore, entitled to a further sum of Rs.30,000/- under those heads. 12. Coming to the compensation for loss of love and affection, in the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), having regard to the fact that the accident in the instant case is one that took place in the year 2007, I am of the view that the parents and the children of the deceased are entitled to a sum of Rs.30,000/each. As the claimants were granted only a sum of Rs.30,000/- under that head, they are entitled to a sum of Rs.1,20,000/- by way of additional compensation. The compensation granted by the Tribunal under the remaining heads appear to be in order. 13. In short, the claimants are entitled to Rs.5,82,000/- by way of additional compensation. In the result, M.A.C.A. No. 2009 of 2012 is dismissed and M.A.C.A.No.837 of 2012 is allowed granting to the claimants a sum of Rs.5,82,000/- by way of additional compensation. Needless to say, the claimants will be entitled to interest for the additional compensation at MACA.837/2012, MACA.2009/2012 13 the rate of 7.5%. It is clarified that all other directions in the impugned award will stand. The parties will be at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** tgs