M.A.C.A.No.1827 of 2022

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ``` MACA NO. 1827 OF 2022 ``` ``` AGAINST THE AWARD DATED 13.10.2021 IN O.P(M.V) NO.1145 OF 2017 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` ORIENTAL INSURANCE CO.LTD, BRANCH OFFICE, MARINA SHOPPING COMPLEX, THALIPARAMBA, REPRESENTED BY MANAGER, ORIENTAL INSURANCE CO.LTD, METRO PLAZA, XAVIER ARAKKAL ROAD, OPPOSITE NORTH RAILWAY STATION, ERNAKULAM- 682018. ``` ``` BY ADVS.SRI.V.P.K PANICKER ``` ## **`RESPONDENTS/PETITIONERS 1 TO 3/SUPPL.PETITIONERS 5 TO 9:`** - **`1 M. MANI, AGED 46 YEARS, W/O PRAKASHAN, POYYIL HOUSE, EDAKKEPURAM.S, CHERUKUNNU.P.O.,KANNAPURAM VILLAGE, KANNUR TALUK, PIN- 670301.`** - **`2 ATHUL PRAKASHAN, AGED 25 YEARS, S/O.PRAKASHAN, POYYIL HOUSE, EDAKKEPURAM.S, CHERUKUNNU.P.O., KANNAPURAM VILLAGE, KANNUR TALUK, PIN- 670301.`** - **`3 APARNA PRAKASHAN, AGED 18 YEARS, D/O.PRAKASHAN, POYYIL HOUSE, EDAKKEPURAM.S, CHERUKUNNU.P.O., KANNAPURAM VILLAGE, KANNUR TALUK, PIN- 670301.`** - **`4 PREMARAJAN.P, AGED 63 YEARS, POYYIL HOUSE, EDAKKEPURAM SOUTH, CHERUKUNNU.P.O., KANNAPURAM VILLAGE, KANNUR TALUK, PIN- 670301.`** - **`5 DINESAN.P, AGED 58 YEARS, POYYIL HOUSE, EDAKKEPURAM SOUTH, CHERUKUNNU.P.O., KANNAPURAM VILLAGE, KANNUR TALUK, PIN- 670301.`** - **`6 BEENA.P, AGED 50 YEARS, EDAMANA HOUSE, PERUMACHERY, KOLENCHERY.P.O, ERNAKULAM- 682311.`** - **`7 REENA.P, AGED 47 YEARS, KELOTH HOUSE, NR. RAJAS HS, CHIRAKAL.P.O, KANNUR-670011.`** ``` M.A.C.A.No.1827 of 2022 ``` ``` 2 ``` - **`8 VINOD POYYIL, AGED 44 YEARS, POYYIL HOUSE, EDAKKEPURAM SOUTH, CHERUKUNNU.P.O., KANNAPURAM VILLAGE, KANNUR TALUK, PIN- 670301.`** - **`9 MUHAMMED RAFAYIL, S/O AHEMMED, AGED 25 YEARS, 'BUSHRAS HOUSE', PAMBURUTHI, NARATH.P.O., KANNUR- 670601`** - **`10 MUHAMMED ANAZ.C.P, S/O.SIDDIQ HAJI, BISMILLAMANZIL, BADARIYA NAGAR, THALIPARAMBA, KANNUR- 670141.`** ``` BY ADVS. R9 BY SRI.P.T.ABHILASH R2 BY SRI.ABHILASH K.N. SRI.SUNIL NAIR PALAKKAT(K/1049/1999) SRI.RITHIK S.ANAND(K/001899/2021) SRI.ANU PAUL(K/002201/2021) SMT.SREELAKSHMI MENON P.(K/001252/2022) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1827 of 2022 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 05[th] day of March, 2024** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Thalassery (for short ‘the Tribunal’) on 13.10.2021 in O.P(M.V) No.1145/2017. The appeal is filed by the 3[rd] respondent who was the insurer of the offending vehicle. The challenge was raised mainly against the quantum of compensation stood awarded by the Tribunal as well as the liability fixed on the appellant to indemnify the insured. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners and respondents 1 to 3 in accordance with their status in the Original Petition. ``` M.A.C.A.No.1827 of 2022 ``` ``` 4 ``` 3. Before adverting to the arguments advanced by the learned counsel for the 3[rd] respondent, this Court is inclined to have a brief discussion on the facts of the case. The motor accident in question was occurred on 10.07.2017, while Mr.Prakashan who was standing by the side of the road near Kamal Super Market, Kambil, was hit by a motorcycle bearing Registration No.KL59D/6306 due to the rash and negligent driving by its rider. He received fatal injuries and was rushed to AKG hospital, Kannur and shifted therefrom to Koyili Hospital, Kannur. There he succumbed to the fatal injuries sustained. Raising a claim for a total sum of `25,00,000/- as compensation from the rider, the registered owner and the insurer of the motorcycle bearing Registration No.KL-59D/6306 jointly and severally, the Original Petition on hand was filed. ``` M.A.C.A.No.1827 of 2022 ``` ``` 5 ``` 4. During pendency of the Original Petition, the mother of the deceased died and thereupon her legal heirs were brought on record as supplemental petitioners 5 to 9 in the Original Petition. 5. All respondents were served with notice. 1[st] respondent entered appearance and filed written statement raising contentions that he was not riding the motorcycle at the relevant time of the motor accident and therefore is not related to the motor accident in question. According to him, he was a minor at the relevant time and the police has fabricated a false chargesheet against him and filed it before the Juvenile Justice Board and that is pending consideration there as C.C.No.7/2018. It was further contended that the motorcycle was neither in his possession nor in his control at the relevant time of the motor accident. 2[nd] respondent though received ``` M.A.C.A.No.1827 of 2022 ``` ``` 6 ``` notice from the Tribunal did not turn up to contest the . Original Petition and therefore was declared _ex parte_ 6. 3[rd] respondent has filed written statement admitting insurance coverage of the motorcycle bearing Registration No. KL-59D/6306 as on date of the motor accident. It was contended further that the 1[st] respondent was not holding a driving licence at the relevant time of the motor accident and therefore was fined `500/- by the police under Section 3(1) read with Section 181 of the Motor Vehicles Act, 1988 (for short ‘the MV Act’). It is contended further that the 2[nd] respondent, the owner of the motorcycle was also fined `500/- under Section 5(1) read with Section 180 of the MV Act for permitting a person without authorisation to ride the motorcycle. Both respondents paid the fine as directed. The 3[rd] respondent thus canvassed for exoneration from liability to indemnify ``` M.A.C.A.No.1827 of 2022 ``` ``` 7 ``` the 2[nd] respondent and from paying the compensation to the petitioners. 7. Before the Tribunal, oral evidence was adduced by the wife of the deceased as PW1 and Exts.A1 to A15 were marked. Exts.B1 to B5 were marked on the side of the 3[rd] respondent. On the basis of the above evidence, the Tribunal found that the motor accident in question was occurred due to the rash and negligent riding of the motorcycle by the 1[st] respondent. The Tribunal calculated the compensation and arrived at a sum of `14,21,400/- as the compensation payable in favour of the petitioners. The Tribunal has also found violation of policy conditions by the insured who permitted a minor having no authorisation to ride the motorcycle. Accordingly, the Tribunal directed the 3[rd] respondent to pay the compensation in favour of the petitioners ``` M.A.C.A.No.1827 of 2022 ``` ``` 8 ``` and to get recovery of the same from the 2[nd] respondent. 8. It is contended by Sri.V.P.K.Panicker, the learned counsel for the appellant that the 3[rd] respondent ought to have been exonerated from liability by the Tribunal instead of granting recovery rights in its favour. The learned counsel contended that the compensation stood awarded by the Tribunal is against the normal principles governing grant of compensation and seeks for interference with the impugned award on those counts. 9. The learned counsel for the respondents/petitioners contended on the contrary that the monthly income was fixed by the Tribunal on the lower side and therefore, it requires modification. 10. The respondents/petitioners failed to prefer appeal from the award passed by the Tribunal. ``` M.A.C.A.No.1827 of 2022 ``` ``` 9 ``` `11,000/- was fixed by the Tribunal as the monthly income on a notional basis and 10% was added to it, in consideration of loss of future prospects. It was in a context when evidence of any nature was not forthcoming from the petitioner to establish the occupation and the monthly income of the deceased. Therefore, the Tribunal is justified in adopting the monthly income as `11,000/- on a notional basis. Tribunal is also justified in adding 10% to the monthly income in consideration of loss of future prospects. Therefore, interference with the quantum of compensation stood awarded by the Tribunal towards loss of dependency is uncalled for. 11. The learned counsel for the 3[rd] respondent has pointed out that the Tribunal failed to award compensation under the conventional heads in accordance with the direction of the Constitution ``` M.A.C.A.No.1827 of 2022 ``` ``` 10 ``` Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)]** . According to him, the Tribunal has awarded excess sums under the above heads though the petitioners are entitled to get only `40,000/- per head as compensation towards loss of consortium and `15,000/- each as compensation towards loss of estate and funeral expenses. Therefore, `4,000/- being the excess sum stood awarded in favour of each of the petitioner under the head loss of consortium [`16,000/- (`4000/- x 4)] and `3,000/- (`1,500/- x 2) stood awarded in excess in favour of the petitioners towards loss of estate and funeral expenses are also deducted. 12. It is found that `10,000/- was awarded by the Tribunal as compensation towards pain and sufferings. It has been settled by the Apex Court that ``` M.A.C.A.No.1827 of 2022 ``` ``` 11 ``` the petitioners being the legal representatives of the deceased are not entitled to get compensation under that head. Therefore, `10,000/- is also deducted from the total compensation payable. 13. In the above manner of calculation, petitioners will get only `13,92,400/- (`14,21,400/- - `1,500/- - `1,500/- - `10,000/- - `16,000/-) (Rupees Thirteen lakhs ninety two thousand and four hundred only) as the total compensation payable instead of `14,21,400/- stood awarded by the Tribunal. 14. 1[st] respondent is established from the evidence on record as riding the motorcycle without authorisation. He was charged for that by the police under Section 3(1) read with Section 181 of the MV Act. Being a minor, he is not entitled to get any authorisation under the MV Act to drive a motor vehicle. Therefore, it was not incumbent on the 3[rd] ``` M.A.C.A.No.1827 of 2022 ``` ``` 12 ``` respondent to prove that the 1[st] respondent was devoid of authorisation to ride the motorcycle at the relevant time of the motor accident. The Tribunal has fastened liability upon the 3[rd] respondent to pay the compensation in favour of the petitioners and to have it recovered from the 2[nd] respondent who was the registered owner of the motorcycle bearing registration No.KL-59D/6306 involved in the motor accident. Exoneration from liability though sought by the 3[rd] respondent, this Court is declined to order so for the reasons but only to maintain the right of recovery already stood granted by the Tribunal in favour of them. 15. Appeal on hand is allowed in part. 3[rd] respondent/appellant herein was directed to deposit the compensation modified as above with interest accrued on it at the rate fixed, within a period of two ``` M.A.C.A.No.1827 of 2022 ``` ``` 13 ``` months from the date on which a certified copy of this judgment is received. Disbursal of the amount shall be in accordance with the directions issued by the Tribunal in the impugned award as well as the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. If any sum was already deposited by the appellant while filing the appeal on hand, that shall be adjusted by the Tribunal in the sum payable as compensation. Sd/- **MARY JOSEPH JUDGE** NAB