MACA.No.2694 of 2012 & Conn. Case; MACA.No.483 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** ## **MACA.No.2694 OF 2012** **AGAINST THE AWARD IN OPMV 1310/2007 DATED 02-11-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANTS/PETITIONERS:** - **1 RAMLATH W/O.LATE MUJEEB RAHMAN, MANAKULANGARAPARAMBIL HOUSE, VARANTHARAPPILLY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** - **2 MUNNER, S/O.MUJEEB RAHMAN REPRESENTED BY HIS MOTHER 1ST APPELLANT, MANAKULANGARAPARAMBIL HOUSE, VARANTHARAPPILLY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** - **3 MUNEERA, D/O.MUJEEB RAHMAN REPRESENTED BY HER MOTHER 1ST APPELLANT, MANAKULANGARAPARAMBIL HOUSE, VARANTHARAPPILLY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS:** - **1 KRISHNAN S/O.ADIMA, ARIPPANTHARA HOUSE, EDAKAZHIYOOR, PUNNAYOOR, GURUVAYOOR 680101.** **2 K.BHAKTHAVALSALAN SO.MADHAVAN NAIR KIZHUPATTU HOUSE PUNNAYOOR, GURUVAYOOR - 680 101.** - **3 THE MANAGER NEW INDIA ASSURANCE CO.LTD. KUNNAMKULAM BRANCH, VADAKKANCHERY ROAD, THRISSUR - 680503.** **MACA.No.2694 OF 2012 & Conn. Case** **2** **4 MAJID MANAKULANGARAPARAMBIL HOUSE VARANTHARAPPILLY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT 680 303. 5 JAMEELA, W/O.MAJID MANAKULANGARAPARAMBIL HOUSE VARANTHARAPPILLY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT - 680303. R1, R3 BY ADV. SMT.M.MEENA JOHN R1 BY ADV. SRI.VIJU THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2021, ALONG WITH MACA.483/2013, THE COURT ON 23-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.2694 OF 2012 & Conn. Case** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** ## **MACA.No.483 OF 2013** **AGAINST THE AWARD DATED 02.11.2012 IN OPMV 1310/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **- APPELLANT/2ND RESPONDENT OWNER:** **K.BHAKTHA VALSALAN S/O.MADHAVAN NAIR,KIZHUPPATTU HOUSE, PUNNAYOOR VILLAGE, GURUVAYOOR, KURANIYOOR POST-680506,CHAVAKKAD(VIA)** **BY ADVS. SRI.T.B.HOOD SMT.M.ISHA** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 3 TO 5:** **1 RAMLATH AGED 38 YEARS W/O.LATE MUJIB RAHIMAN, MANAKKULANGARA PARAMBIL HOUSE, VELUPADAM DESOM, VARANDARAPPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DIST-680303** ## **2 MUNIR** **AGED 17 YEARS** **S/O.LATE MUJIB RAHIMAN ,REP BY NATURAL GUARDIAN MOTHER RAMLATH ,MANAKKULANGARA PARAMBIL HOUSE, VELUPADAM DESOM, VARANDARAPPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DIST-680303** - **3 MUNEERA** **AGED 13 YEARS** **D/O.LATE MUJIB RAHIMAN,REP BY NATHURAL GUARDIAN MOTHER RAMLATH,MANAKKULANGARA PARAMBIL HOUSE, VELUPADAM DESOM, VARANDARAPPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DIST-680303** **MACA.No.2694 OF 2012 & Conn. Case** **4** **4 KRISHNAN, AGED 41 YEARS, S/O.ADIMA, ARIPPANTHARA HOUSE, EDAKAZHIYOOR DESOM, PUNNAYOOR VILLAGE, GURUVAYOOR,KURANIYOOR POST-680506,CHAVAKKAD (VIA)THRISSUR DIST** **5 THE MANAGER THE NEW INDIA INSURANCE COMPANY LIMITED, KUNNAMKULAM BRANCH,VADAKANCHERY ROAD, THRISSUR DIST-680503** **6 MAJID AGED 66 YEARS S/O.CHINNAPAYYIL, MANAKULANGARA PARAMBIL, VELUPADAM, VARANDARAPPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DIST-680303** - **7 JAMEELA** **S/O.MAJID,MANAKULNAGARA PARAMBIL,VELUPADAM, VARANDARAPPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DIST-680303** **R1 BY ADV. SRI.P.V.BABY** **R1, R5 BY ADV. SRI.VIJU THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2021, ALONG WITH MACA.2694/2012, THE COURT ON 23-032021 DELIVERED THE FOLLOWING:** **MACA.No.2694 OF 2012 & Conn. Case** **5** ## **P.V.KUNHIKRISHNAN, J** -------------------------------- M.A.C.A.Nos.2694 of 2012 & 483 of 2013 ------------------------------Dated this the 23[rd] day of March, 2021 ## **JUDGMENT** These two appeals are filed challenging the award dated 2.11.2012 in O.P.(MV) No. 1310/07 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. Therefore, I am disposing these two appeals by a common judgment. (Hereinafter, the parties are mentioned in accordance to their rank in the Tribunal) 2. The short facts are like this. On 5.4.2007, at 6.30 p.m. while the deceased Mujib Rahiman was riding his motorcycle bearing registration No. KLH/5-3277 from south to north through National Highway. When he reached near Ulumbathukunnu near Kodakara, a motor car bearing registration No. KL-8/E-8271 driven by the first respondent in a rash and negligent manner came from opposite side and hit against the motorcycle causing injuries to deceased who **MACA.No.2694 OF 2012 & Conn. Case** **6** later succumbed to the injuries. The second respondent is the registered owner of the offending vehicle and the third respondent is the insurer. 3. To substantiate the case, Exts.A1 to A10 were marked on the side of the petitioner/claimants and Exts. B1 and B2 were marked on the side of the respondents. 4. After going through the evidence and documents, the Tribunal passed an award of Rs.3,43,000/- with interest at the rate of 7.5% per annum from the date of petition till realisation. The third respondent is directed to pay the compensation. But the Tribunal allowed the third respondent to recover the amount from the registered owner because the driver of the offending vehicle was not having a badge. Aggrieved by the recovery order passed by the Tribunal, the second respondent, the owner of the offending vehicle filed M.A.C.A.No.483 of 2013. Petitioners 1 to 3 filed M.A.C.A. No.2694 of 2012 for enhancement of compensation. 5. Head counsel for the appellants and counsel for the respondents. **MACA.No.2694 OF 2012 & Conn. Case** **7** 6. First I will consider M.A.C.A.No.483/2013. Before the Tribunal, the third respondent contended that the first respondent has no badge to drive the vehicle. Ext.B2 is the copy of the licence which shows the permission of the Motor Vehicle Department that the badge was valid only up to 19.3.2012 and the accident occurred on 5.4.2007. Based on the same, the Tribunal found that the insurer cannot be allowed to avoid its liability unless the breach is so fundamental which contributing the cause of the accident **.** Thereafter, the Tribunal directed that the third respondent is entitled to recover the amount from the first respondent. The finding of the Tribunal itself is contradictory. Moreover in the light of the decision of the Full Bench of this Court in _**Shaji v. Pradeesh (2018 (2) KLT 136 (F.B))**_ and the Apex Court decision in _**Mukund Dewangan Vs. Oriental Insurance Co. Ltd., (2017 (3) KLT 1000),**_ the above finding of the Tribunal will not stand. The Apex Court in _**Mukund Dewankan's**_ case considered this point in detail in paragraph 45 and held that no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class. Admittedly, the vehicle involved in this **MACA.No.2694 OF 2012 & Conn. Case** **8** case is a light motor vehicle. Therefore, the direction in the impugned award allowing the insurance company to recover the compensation from the second respondent who is the appellant in M.A.C.A No.483/2013 will not stand. Then I will consider M.A.C.A.No.2694/2012. ## M.A.C.A.No.2694/2012 This appeal is filed for enhancement of compensation. The counsel for the petitioners 1 to 3 submitted that the Tribunal fixed the monthly income of the deceased as Rs.2,500/- . According to the counsel, he was a driver by profession and he was aged only 35 years at the time of the accident. The accident happened on 5.4.2007. The counsel submitted that in the light of the decision of _**Ramachandrappa V. Royal Sundaram Alliance Insurance Co.**_ _**Ltd. (2011 (13) SCC 236),**_ the Tribunal ought to have fixed the monthly income of the deceased as Rs.6,000/-. I think there is some force in the argument of the counsel for the appellant. In the year 2004, the Apex Court fixed the monthly income of a coolie as Rs.4,500/- in _**Ramachandrappa's**_ case (supra). By taking the principle in **MACA.No.2694 OF 2012 & Conn. Case** **9** the above case, I think the monthly income of the deceased can be safely fixed as Rs.6,000/- in the year 2007. Moreover, 40% of the income is to be increased towards future prospectus in the light of the decision of the Apex Court in _**National Insurance Company Ltd. V** ._ _**Pranay Sethi (2017 (4)**_ _**KLT 662 (SC)'s**_ case. Therefore the monthly income is to be fixed as Rs.8,400/- after adding 40% towards future prospects to Rs.6,000/- which is the claim of the petitioners. Therefore, the monthly income of the deceased is fixed as Rs.8,400/-. The learned counsel for the petitioners also submitted that in the light of _**Sarla Verma & Others v. Delhi Transport Corporation & another [2010 (2) KLT 802]**_ and _**National Insurance Co. Ltd v. Pranay sethi [2017(4) KLT 662],**_ the Tribunal erred in deducting 1/3[rd] towards the personal expense of the deceased. The Tribunal ought have deducted only 1/4[th] . There is no dispute on that from the counsel for the insurance company. Therefore, the deduction from the compensation awarded for loss of dependency for the personal expense of the deceased will be 1/4[th] . Then the counsel submitted that the towards funeral expense Rs.2,000/- is allowed. The appellants are entitled another **MACA.No.2694 OF 2012 & Conn. Case** **10** Rs.13,000/- in that head. The appellants are the wife and two minor children. The counsel submitted that they are entitled loss of consortium at rate of Rs.40,000/-, in the light of the decision in _**Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others.[2018 (18) SCC 130].**_ In the light of above decision, the appellants are entitled compensation for loss of consortium at the rate of Rs.40,000/-. The amount already granted is to be deducted and the balance amount will be Rs.1,15,000/-. Then the counsel submitted that towards loss of estate only an amount of Rs.5,000/- is allowed and the petitioners are entitled Rs.10,000/- more. That also can be allowed. Therefore, the loss of dependency is to be reassessed in the following manner i.e. 8,400 x 12 x 16 x 3/4 = 12,09,600/-. The Tribunal awarded an amount of Rs.3,20,000/- which is to be deducted. Then the balance amount will be: 12,09,600 – 3,20,000 = 8,89,600/- Then the enhanced compensation entitled by the appellants **MACA.No.2694 OF 2012 & Conn. Case** **11** can be summerised like this: = Loss of dependency 8,89,600/= Funeral Expense 13,000/Loss of Consortium = 1,15,000/Loss of Estate = 10,000/_____________ Total = 10,27,600/- The appellants are entitled to get interest for the above amount at the rate of 7.5% from the date of application till realization. Therefore, these appeals are disposed in the following manner. (i) MACA No.483/2013 is allowed. The order allowing the 5[th] respondent/3[rd] respondent insurance company to recover the compensation from the appellant/2[nd] respondent is set aside. (ii) MACA No.2694/2012 is allowed in part. The appellants are entitled an enhanced compensation of Rs.10,27,600/- with interest at the rate of 7.5% per annum **MACA.No.2694 OF 2012 & Conn. Case** **12** from the date of application till realization. The 3[rd] respondent is directed to pay the enhanced compensation with interest. al/VPK **Sd/P.V.KUNHIKRISHNAN JUDGE**