Mani and others v. Joby John and Oriental Insurance Co. Ltd.

**“CR”** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937 MACA.No. 605 of 2008 ( ) ------------------------- AGAINST THE AWARD IN OPMV 427/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 20-08-2007 APPELLANT/PETITIONERS: ------------------------------------------------ 1. MANI, S/O.KRISHNAN, RESIDING AT PEPPATHI HOUSE, KARINGAZHA, CHELAD KOTHAMANGALAM (FATHER OF THE DECEASED) 2. SATHI, W/O.MANI, RESIDING AT PEPPATHI HOUSE, KARINGAZHA, CHELAD KOTHAMANGALAM (MOTHER OF THE DECEASED) 3. MANJU, W/O.PRASAD, RESIDING AT THEKKEKOOTTU HOUSE, BRAHAMANGALAM THALAYOLAPARAMBU (SISTER OF THE DECEASED) 4. MAYA, D/O.MANI, RESIDING AT PEPPATHI HOUSE, KARINGAZHA, CHELAD KOTHAMANGALAM. (SISTER OF THE DECEASED) BY ADVS.SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU ## RESPONDENTS/RESPONDENTS: ------------------------------------------------- 1. JOBY JOHN, S/O.JOHN KUNNUPURATHUPUTHENPURA HOUSE, PERIMBADARI, MANNARKAD. 2. THE BRANCH MANAGER THE ORIENTAL INSURANCE CO.LTD., KOTHAMANGALAM. R2 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **“CR”** **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -------------------------------------------------M.A.C.A.No.605 OF 2008** **-------------------------------------------------DATED THIS THE 19[th] DAY OF JANUARY, 2016** ## **JUDGMENT** ## **P.R.RAMACHANDRA MENON, J** . The grievance of the appellant is two fold; firstly that the Tribunal has gone wrong in exonerating the Insurance Company and secondly, that the quantum awarded in respect of the death of a person aged 28 years is much on the lower side. 2. The sequence of events narrated in the appeal shows that there occurred an accident on 1.12.2002, when the lorry bearing No.KL-10B/4604 owned and driven by the 1[st] respondent and insured by the 2[nd] respondent capsized on the road resulting in serious injuries to the deceased, leading to his death on the same day. The case projected by the claimants, who are the parents and siblings of the deceased, was that on the date of accident, the deceased was returning along with the goods carried in the lorry bearing No.KL-10B/4604 and it was because of the rash and negligent driving by the driver, that the accident had occurred. M.A.C.A.No.605/08 -2- 3. The owner-cum-driver of the vehicle chose to remain ex parte. The matter was contested by the Insurance Company mainly contending that though there was a valid policy, there was no liability for the Insurance Company to satisfy the risk in respect of the person who was travelling in the goods carriage. But the version of the claimants was that the deceased was travelling in the lorry in his capacity as the owner accompanying the goods. It was also contended that, the deceased was working as a TV/Radio Technician earning a sum of 6,000/- per₹ month based on his qualifications in the field. In order to substantiate the facts and figures, Exts.A8, A9 and A10 certificates (National Trade Certificate issued by the NCVT, Government of Kerala, Provisional National Trade Certificate issued by the NCVT, Government of India and certificate issued from the National Institute of TV and VCR Technology, Kothamangalam) were produced. That apart, PW1 was also examined, who was also travelling in the very same vehicle, though his name and particulars have not been mentioned in the appendix, where it is simply stated that witness on both sides M.A.C.A.No.605/08 -3- 'nil'. The relevant portions of the deposition of the witnesses have been examined by the Tribunal in Paragraph No.11. On going through the said version and also going through the lower court records, particularly, Exts.A1 FI Statement and A3 scene mahazar, pieces of granite stones were very well available on the spot of occurrence. The specific place from where granite stones were procured was also deposed by PW1. It was stated that he was requested by the deceased Manoj to accompany him for selecting designs of granite stones/dressed granite stones for constructing the residential building. The stage of construction was also deposed by the said witness and there is no effective cross examination in this regard. The version of the claimants was not satisfactorily rebutted by the respondents by adducing any evidence from their side; but for producing copy of policy and copy of the permit as Exts.B1 and B2. We find no reason to have discarded the evidence tendered by PW1 and the version put forth by the claimants that the deceased was returning in the lorry bearing No.KL-10B/4604 accompanying his goods and this being the position, the finding to the contrary rendered by the M.A.C.A.No.605/08 -4- Tribunal as if the deceased was only a gratuitous passenger is not liable to be accepted. It is ordered accordingly. 4. Going by the quantum of compensation payable, the Tribunal has reckoned only a sum of 2,500/- as the monthly₹ income. With reference to the age of the parents, appropriate multiplier was fixed as '13' granting a total amount of ₹2,60,052/- as the compensation for the loss of death (i.e., 1667x12x13, after deducting 1/3[rd] towards personal expenses). As discussed above, the claimants have produced Exts.A8 to A10 to show the qualifications of the deceased. This coupled with the deposition of PW1 should have persuaded the Tribunal to have reckoned a higher notional monthly income. Considering the facts and figures and also considering the date of accident, we find it appropriate to reckon 4,000/- as the notional monthly₹ income for working out the compensation. Since the parents alone could be considered as the dependents, 50% could be deducted towards the probable personal expenses and the remaining 50% is to be considered as the contribution to the family. Similarly, we also find that the appropriate multiplier by M.A.C.A.No.605/08 -5- virtue of the law settled, has to be based on the age of the deceased. Since the deceased was aged 28 years, we find it appropriate to reckon the multiplier as '17'. On reworking the figures towards loss of dependency, it comes to 4,08,000(i.e.,₹ 4000x12x50/100x17). After giving credit to the sum of ₹2,60,052/-, the balance comes to **₹1,47,948/-** . The amounts awarded by the Tribunal under other relevant heads as discussed in Paragraphs 16 to 22 are as given below: Loss of dependency : 2,60,052.00 Transport to hospital : 2,000.00 Loss of estate : 2,500.00 Funeral expenses : 5,000.00 Pain and suffering : 10,000.00 Loss of love and affection : 15,000.00 (i.e., 7500x2) Loss of support in respect of petitioner No.3 : 5,000.00 Loss of support in respect of petitioner No.4 : 5,000.00 ----------Total : 3,04,552.00 ₹ (Total amount is wrongly ========== shown in the Award as 2,99,552/- in Para.23) ₹ 5. Only a sum of 5,000/- has been awarded towards the₹ funeral expenses. We enhance the same by a further sum of **₹5,000/-** considering the date of accident. Similarly, towards loss of love and affection, only a sum of 25,000/- has been₹ M.A.C.A.No.605/08 -6- awarded by the Tribunal. Though the 3[rd] and 4[th] appellants/ claimants are not the dependents of the deceased, they being the siblings, they are also entitled to be compensated along with the parents. By virtue of the position made clear by the Apex Court in **Rajesh v. Rajbir Singh 2013 (3) KLT 89 (SC)** , a sum of ₹1 lakh has to be paid towards loss of love and affection. It is true that the date of accident in the said case was in the year 2007, whereas in the instant case, it was in the year 2002. But considering the overall facts and circumstances, and the number of members in the family, we adopt the said figure as the compensation payable towards loss of love and affection. In the above circumstance, balance compensation payable under the head loss of love and affection comes to **₹75,000/-** .(i.e., 1,00,000- 25,000). Thus the appellants will be entitled for an additional compensation of **₹2,27,948/-** which shall be satisfied by the Insurance Company with interest @9% per annum from the date of petition till satisfaction. 6. Coming to the violation of the permit condition, it is a ground very much available to the Insurance Company, as M.A.C.A.No.605/08 -7- envisaged under Section 147(1)(a)(i)(c) and the law by the Apex Court as well as per decision reported in **National Insurance Company v. Challa Bharathamma** [ **2004 (3) KLT 454 (SC)].** (Since the judgement rendered by a Full Bench of this Court reported in **Augustine v. Ayyappankutty (2015 (2) KLT 139)** to the contrary, has not adverted to the verdict passed by the Apex Court, which is the law of the land by virtue of the sanctity and mandate under Article 141 of the Constitution of India, we respectfully cannot rely on the said verdict, as bound by the judgment of the Supreme Court). It is true that there were more number of persons in the cabin of the lorry, than the seating capacity. But even if more persons than the permitted capacity are carried in a transport vehicle, in the matter of awarding compensation, the position has been made clear by the Apex Court in **National Insurance Co. Ltd.** v. **Anjana Shyam (2007 (3) KLT 993),** holding that cases where the 'maximum compensation' payable have to be identified, based on the actual seating capacity and the said extent has to be satisfied by the Insurance Company. In the instant case, only one claim petition M.A.C.A.No.605/08 -8- was there and as such, this Court does not find it necessary to go into any further exercise with regard to the apportionment. However, in view of the violation of the statutory/policy condition, the Insurance Company is granted right of recovery from the insured after satisfying the liability in respect of the victim, from the 1[st] respondent. The appeal stands allowed to the said extent. Sd/- **P.R.RAMACHANDRA MENON** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn True copy P.S.to Judge