M.A.C.A.No.2429 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY ,THE 20TH DAY OF DECEMBER 2018 / 29TH AGRAHAYANA, 1940** ## **M.A.C.A.No.2429 of 2017** **AGAINST THE AWARD IN O.P.(M.V)No.26/2012 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 13-01-2016** ## **APPELLANT/3RD RESPONDENT:** **THE ORIENTAL INSURANCE CO. LTD. ALUVA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18.** **BY ADVS.** **SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** ## **RESPONDENTS/CLAIMANTS AND RESPONDENTS 1 AND 2:** |**1**|**HAJARA, AGED 65YEARS**| |---|---| ||**W/O. MOHAMMED KOYAN, MARIAMKUDY HOUSE, MARAMPILLY,**| ||**PIN - 683 105**| |**2**|**ABDUL SALAM, AGED 40 YEARS**| ||**S/O. MOHAMMED KOYAN, MARIAMKUDY HOUSE, MARAMPILLY,**| ||**PIN - 683 105**| |**3**|**IBRAHIM, AGED 37 YEARS**| ||**S/O. MOHAMMED KOYAN, MARIAMKUDY HOUSE, MARAMPILLY,**| ||**PIN - 683 105**| |**4**|**ABIDA NOUSHAD, AGED 36 YEARS**| ||**S/O. MOHAMMED KOYAN, MARIAMKUDY HOUSE, MARAMPILLY,**| ||**PIN - 683 105**| |**5**|**SHAMEEDHA KHADERKUNJU, AGED 35 YEARS**| ||**D/O. MOHAMMED KOYAN, MARIAMKUDY HOUSE, MARAMPILLY,**| ||**PIN - 683 105**| |**6**|**NOUSHAD, AGED 47 YEARS**| ||**S/O. KOYAN @ S/O. MOHAMMED KOYAN, MARIAMKUDY HOUSE,**| ||**MARAMPILLY, PIN - 683 105**| **M.A.C.A.No.2429 of 2017 2 7 NASEEMA, AGED 50 YEARS D/O. KOYAN @ S/O. MOHAMMED KOYAN AND W/O. ISMAIL MATTATHIL HOUSE, EDATHALA, ALUVA, PIN - 683 561. 8 RASHEED NAZAR S/O. NAZAR, MATTUMMEL HOUSE, CHOORNIKARA, THAIKKATTUKARA P.O., PIN - 683 106. 9 RAFEEQ S/O. AZEEZ, NADUPARAMBIL HOUSE, KUNNATHERY, THAIKKATTUKARA, ALUVA, PIN - 683 106. BY ADVS. R1 TO R7 BY SRI.RAJESH S.SUBRAHMANIAN SRI.V.R.RAJESH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No.2429 of 2017 3** ## **JUDGMENT** The challenge in this appeal is against the quantum of compensation arrived at by the Tribunal as payable to the claimant and also fixation of the entire liability upon the insurer without the right of recovery being granted to them. 2. The appellant before this Court is the third respondent before the Tribunal, who was the insurer of the offending vehicle. The facts of the case are brief in the following effect: At about 4.45 p.m, on 11.09.2011, while Mr.Mohammed Koyan was walking through the side of the Aluva-Perumbavoor road, a motor cycle bearing registration No.KL-41/E-3613, knocked him down near Marampilly junction and thereby he sustained injuries. He was rushed to Ernakulam Medical Centre and therefrom was referred to Medical Trust Hospital, Ernakulam for treatment. While undergoing treatment at Medical Trust Hospital, Ernakulam, due to the seriousness of the injuries sustained, he succumbed to death on 12.11.2011. Alleging that the accident was occurred due to the rash and negligence riding of the motor cycle by its rider and claiming a compensation of Rs.9,00,000/-, the claim petition as aforesaid was preferred before the Tribunal. The owner, rider and insurer of the motor ## **M.A.C.A.No.2429 of 2017 4** cycle were arrayed as respondent Nos.1 to 3 in the claim petition. First and second respondents, who are the owner and rider of the motor cycle, remained ex-parte before the Tribunal. 3. The third respondent has filed written statement admitting insurance coverage of the motor cycle bearing registration No. KL-41/E-3613 at the relevant time of accident. It was contended in the written statement that, the accident was occurred due to negligence of the deceased himself, while crossing the road, that the second respondent, the rider of the motor cycle was a minor boy and riding the same without a valid driving licence and that the third respondent, insurer is entitled to get recovery right inview of the violation of conditions of policy by the insured by letting a minor boy without licence to ride the Motor cycle. 4. Before the Tribunal, the petitioner had adduced documentary evidence as Exts.A1 to A10. The only contesting third respondent failed to adduce either oral or documentary evidence. On an elaborate appreciation of evidence on record, the Tribunal found negligence on the part of the second respondent, who was riding the motor cycle at the relevant time but declined to grant recovery right to the insurer for the reason that, they failed to establish the breach of policy conditions. The ## **M.A.C.A.No.2429 of 2017 5** Tribunal has also found the petitioners entitled to get compensation for the death of Mr.Mohammed Koyan and arrived at Rs.13,77,056/- as the compensation payable. The aggrieved insurer, the third respondent before the Tribunal had approached this Court in the captioned appeal challenging the award on grounds as stated above. 5. Sri.George Cheriyan, the learned Senior Counsel has contended that, a charge under Section 3(1) read with 181 of the Motor Vehicles Act was there against the second respondent, the rider of the motor cycle, in Ext. A3, the charge sheet laid by the police in the case registered on the basis of the motor accident. According to the learned counsel, despite the factum that a charge under Section 3(1) read with 181 of the Motor Vehicles Act is there in Ext.A3, the Tribunal had observed that the third respondent, insurer failed to establish breach of policy conditions and accordingly, declined to grant the right to get the award amount recovered from the insured. According to the learned counsel interference with the award is called for to correct it. The further contention advanced was that though the deceased was established as survived by his wife and six major children, the Tribunal had deducted only 1/5 of the monthly income towards personal expenses. According to the learned counsel, the Tribunal ## **M.A.C.A.No.2429 of 2017 6** ought to have deducted 1/3 towards personal expenses in consideration of the number of surviving members. According to him, six children though arrayed as legal heirs of the deceased cannot be considered so, all of them being major ones and therefore, wife alone will be a dependent of the deceased. Therefore, the learned counsel canvassed for a re-fixation after deducting 1/3[rd] of the monthly income in consideration of personal expenditure. 6. It is pertinent to note from the calculation adopted by the Tribunal that Rs.4,000/- was considered as the monthly income. The monthly income taken being Rs.4,000/-, this Court is declined to refix the compensation as sought by the learned counsel. Therefore, amount arrived at by the Tribunal as compensation under the head loss of dependency is maintained for the reasons stated. 7. A challenge was raised with regard to the quantum of compensation awarded under the head funeral expenses. It is pertinent to note from the impugned award that the Tribunal had awarded a sum of Rs.25,000/-, which in view of the Constitutional Bench of the Apex Court in _**National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662 (SC)]**_ is on the higher side. The amount payable under the head funeral expenses being ## **M.A.C.A.No.2429 of 2017 7** Rs.15,000/-, this Court finds it appropriate to deduct Rs.10,000/therefrom. Under the head loss of consortium, the Tribunal has awarded a sum of Rs.1,00,000/-. In view of **Pranay Sethi's** supra, this court finds it appropriate to deduct Rs.60,000/- from Rs.1,00,000/-. Therefore, the petitioners are entitled to get only Rs.40,000/- under the head loss of consortium. Under the head loss of love and affection, the Tribunal has awarded a sum of Rs.4,00,000/- taking into consideration that the deceased was survived by his wife and six major children. _**Pranay Sethi's**_ case is silent about the grant of compensation under the head loss of love and affection. The Apex Court in _**Pranay Sethi's**_ case has held that the dictum in _**Rajesh's**_ case is not a binding precedent. Therefore, this Court is not in a position to grant any compensation under the head loss of love and affection. All the children of the deceased are majors and married also. Therefore, this Court finds justification in setting aside the award of compensation of Rs.4,00,000/- under the head loss of love and affection. 8. Therefore, in the modification of the award by this Court in the aforesaid manner, the petitioners will get a sum of Rs.9,07,056/- [(13,77,056) - (4,00,000+60,000+10,000)]. Therefore there will be a deduction of Rs.4,70,000/- from the ## **M.A.C.A.No.2429 of 2017 8** compensation arrived at by the Tribunal as payable to the petitioners. 9. It is true that, breach of policy condition was not established by the third respondent, insurer by filing an application and directing the second respondent specifically to produce the driving licence. But, going by Ext.A3, the final report marked in evidence in the case on hand, it seems that the second respondent was aged only 17 years. Therefore, there is evidence to establish that, the second respondent was a minor at the relevant time of accident and is below the age limit prescribed by the Act for obtaining a driving licence. The second respondent was a party before the Tribunal as well as before this Court in the appeal. Though, effectively served with, he has not turned up to contest the appeal. Therefore, the third respondent is held as entitled to recover the award amount after depositing the same in favour of the petitioners. Accordingly, the finding of the Tribunal that the 3[rd] respondent is not entitled to recovery is set aside. Right of recovery, is liable to be granted to the insurer/appellant. In the result, the appeal stands allowed. The petitioners are found entitled to get **Rs.9,07,056/- (Rupees nine lakhs seven thousand and fifty six only)** with interest at the rate of 9% per annum (as fixed by the Tribunal in the impugned award) from the ## **M.A.C.A.No.2429 of 2017 9** date of the claim petition till the date of realisation. It is submitted by the learned counsel for the appellant that Rs.7,00,000/- was already deposited before the Tribunal. Therefore, the appellant/third respondent shall deposit the remaining sum with interest at the rate as fixed by the Tribunal from the date of the claim petition till the date of realisation, within a period of three months from the date of receipt of a copy of this judgment. The appellant/third respondent shall recover the entire amount of compensation after deposit from the insured after depositing the same in favour of petitioners. **Sd/-** **MARY JOSEPH JUDGE** NAB