Maniyamma and Others v. Santosh Kumar and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, 1945** **MACA NO. 2664 OF 2010** **AGAINST THE ORDER/JUDGMENT OPMV 127/2003 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL ,KOLLAM** ## **APPELLANT/PETITIONERS:** - 1 MANIYAMMA AND OTHERS UMAYANALLOOR P.O., KOLLAM. - 2 RAJESH KINARUVILA KIZHAKKATHIL UMAYANALLOOR P.O., KOLLAM. - 3 RAJANI KINARUVILA KIZHAKKATHIL UMAYANALLOOR P.O., KOLLAM. - 4 RAJAMMAM KINARUVILA KIZHAKKATHIL UMAYANALLOOR P.O., KOLLAM. [4TH APPELANT IS DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 12.10.2023 IN MACA NO 2664 OF 2010] BY ADV SRI.PRATHEESH.P ## **RESPONDENT/RESPONDENTS:** - 1 SANTHOSH KUMAR AND OTHERS KAITHAKUZHY, KUMMALLOOR, KOLLAM-691 573. - 2 H.YAHIYA EDAPILAPARA MELE VEEDU PLUNUKKANNOOR, PERUMPUZHA, KOLLAM-691 504. - 3 THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD., KOLLAM, (INSURER OF THE VEHICLE BEARING, REG.NO.KL-2/K 2856), PIN-691 001. - 4 ABDUL LATHEEF CHARUVILAPUTHEN VEEDU VELAKONAM, NALUMUKKU, KOLLAM-691 504. - 5 REMANAN SO.RAJAN REMANA MANDIRAM KAITHAKUZHI, ADICHANALLOOR-691 573. - 6 THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD., KOLLAM, (INSURER OF THE VEHICLE BEARING, REG.NO.KL-2/G 4755)-691 001. 2 M.A.C.A No.2664 of 2010 [R2, R4 AND R5 ARE DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 04.11.2019 IN MACA NO 2664 OF 2010] BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN ## **OTHER PRESENT:** SC SMT.LATHA SUSAN CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 M.A.C.A No.2664 of 2010 ## **JUDGMENT** The appellants are the petitioners Nos.1 to 3 in O.P(M.V) No.127/2003 on the files of the Motor Accidents Claims Tribunal, Kollam. 2. The said claim petition was filed by the appellants along with the 4[th] respondent herein, whose name was deleted subsequently, seeking compensation for the death of one 'Rajan', the husband of the 1[st] appellant, father of the 2[nd] and 3[rd] appellants and the son of the 4[th] petitioner in the claim petition. The death was on 10.05.2001, and the accident occurred when the motorcycle bearing registration No.KL-2/K 2856, on which the deceased was pillion riding, collided with a mini lorry bearing registration No.KL-2/G 4755. The lorry was owned by the 4[th] respondent in the claim petition, driven by the 2[nd] respondent in the claim petition and was insured with the 6[th] respondent /Insurance company. The motorcycle was owned by the 1[st] respondent in the claim petition, ridden by the 5th respondent in the claim petition, and insured with the 3rd respondent in the claim petition. According to the appellants, the deceased was working as a Mechanic with a monthly income of Rs.4,500/-. The 4 M.A.C.A No.2664 of 2010 claim petition was submitted in such circumstances, seeking compensation. 3. The 3[rd] and 6[th] respondent alone filed a written statement, admitting the coverage of policy in respect of the vehicles involved. However, they disputed the liability on various grounds. The quantum of compensation was also disputed by them. It was also contended that the 5[th] respondent was riding the motorcycle without a valid driving license, and the police chargesheeted the said respondent under Section 3(1) of the Motor Vehicles Act for the same. Therefore, exoneration from the liability was sought. 4. During the pendency of the claim petition, the 4[th] petitioner, the mother of the deceased, died. The evidence in this case consists of oral testimonies of PWs 1 and 2 and Exts.A1 to A9 from the side of the appellants. No evidence was adduced from the side of the respondent. After appreciating the materials placed on record, the Tribunal came to a finding that the accident occurred due to the negligence on the part of the 5[th] respondent in the claim petition, the rider of the motorcycle. However, the Tribunal found that as he was riding the motorcycle without driving a license, the 3[rd] respondent/Insurance company was 5 M.A.C.A No.2664 of 2010 exonerated from the liability to pay the compensation. Being the owner of the motorcycle, the 1[st] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.3,50,100/- and the same was directed to be deposited by the 1[st] respondent with interest at the rate of 7.5% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri. Pratheesh P, the learned counsel appearing for the Insurance Company and Smt. Latha Susan Cherian, the learned counsel appearing for the 6[th] respondent/insurance company. 6. One of the main contentions raised by the learned counsel for the appellants is with regard to the exoneration of the insurance company from the liability to pay the compensation. After considering the materials placed on record, I find some force in the said contention. The insurance company was exonerated by the Tribunal merely on the ground that there was a violation of policy conditions on the part of the insured by permitting an unlicensed rider to ride the motorcycle. However, it is a well settled position of law that, in case the finding is violation of policy condition by the insured, the proper course to be adopted is to 6 M.A.C.A No.2664 of 2010 direct the insurance company to satisfy the award at the first instance and to get it recovered from the registered owner after satisfying the award. Under no circumstances the insurance company as such can be exonerated from the liability. Therefore, interference is required to that extent. This is mainly because the dispute is regarding the violation of the policy condition. It is something between the insurer and the insured, and the same will not have any impact on the rights of the claimants. The Tribunal has a bounden duty to ensure that the victim is compensated at the earliest opportunity, and the disputes between the insurer and insured cannot stand in the way of the award and recovery of such compensation. Therefore, the finding of the Tribunal in this regard is set aside, and it is held that the 3[rd] respondent/insurance company is liable to satisfy the award at the first instance, and after such satisfaction of the award, they shall be entitled to recover the said amount from the 1[st] respondent by executing the award. 7. When moving on to the quantum of compensation, it was contended by the learned counsel for the appellants that the amount awarded under the head of loss of dependency is grossly inadequate. It was pointed out that, even though a monthly 7 ## M.A.C.A No.2664 of 2010 income of Rs.4,500/- was claimed, the Tribunal fixed the monthly income as Rs.2,500/-. It is true that no evidence was adduced to substantiate the nature of employment and the income derived by the deceased from the same. However, it is a fact that the accident occurred in the year 2001. In **Ramachandrappa v.** **Manager, Royal Sundaram Alliance Insurance Company Ltd.** **[(2011) 13 SCC 236]** , the honourable Supreme Court, even in the absence of any evidence, was pleased to fix the monthly income of a coolie as Rs.4,500/- in respect of an accident that occurred in the year 2004. In such circumstances, considering the principles laid down therein, the date of the accident and the nature of employment, I deem it appropriate to fix the monthly income in this case as Rs.3,500/-. 8. Another shortcoming in the award is that no addition was made towards future prospects, which was mandatory as per the principles laid down by the Honourable Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)]. In the light of the **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802], the proper multiplier to be applied is '15', as the appellants belong to the age group of 35-40. In such circumstances, when reassessing the compensation 8 M.A.C.A No.2664 of 2010 for loss of dependency, the amount would come to Rs.5,88,000/[(3,500+40%)x12x15x2/3). The amount already awarded by the Tribunal is Rs.3,20,064/- and after deducting the same, the additional amount entitled by the appellants is fixed as Rs.2,67,936/-. 9. Another head on which the revision becomes necessary is compensation for the loss of consortium. The appellants and the 4[th] petitioner, being wife, children and mother, respectively, are entitled to compensation under this head at the rate of Rs.40,000/- each, as held in **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780]. The amount awarded by the Tribunal under the said head is only 10,000/-. In addition to the same, a further amount of Rs.10,000/- is granted under the head of loss of love and affection. As held in **New India Assurance Company Ltd. v. Somwati & Ors.** [(2020) 9 SCC 644], when compensation for loss of consortium is awarded, no amount needs to be granted for loss of love and affection. Therefore, Rs.10,000/- awarded by the Tribunal towards love and affection can be adjusted to the amount of compensation determined under the head of loss of consortium, 9 M.A.C.A No.2664 of 2010 and thus, it results in an additional compensation of Rs.1,40,000/under the said head. 10. An amount of Rs.5,000/- is seen granted under the head of transport to hospital and funeral expenses combined together. As the amount fixed for funeral expenses is Rs.15,000/- as per **Pranay Sethi** 's case (supra), the same is granted, and the amount of Rs.5,000/- granted under the head of transport to hospital and funeral expenses is adjusted in the said amount. Thus, additional compensation under the said head comes to Rs.10,000/-. Under the head of transport to the hospital, a separate amount of Rs.1,000/- is granted. No amount is seen granted towards loss of estate, and therefore, an amount of Rs.15,000/- is granted under the said head. Thus, the total additional compensation is determined as Rs.4,33,936/- (2,67,936 + 1,40,000 + 10,000 + 1,000 + 15,000). In the light of the aforesaid findings and observations, this appeal is allowed and the award dated 30.11.2009 passed by the Motor Accidents Claims Tribunal, Kollam in O.P.(MV) No. 127/2003 is hereby modified by setting aside the finding exonerating the 3[rd] respondent/insurance company from the liability and holding that, they are liable to pay the compensation at the first instance and 10 M.A.C.A No.2664 of 2010 thereupon they shall be entitled to get it recovered from the 1[st] respondent. The additional compensation is determined as Rs.4,33,936/-(Rupees four lakhs thirty three thousand nine hundred and thirty six only). The 3[rd] respondent is directed to deposit the said amount and the amount initially awarded by the tribunal, along with interest at the rate as ordered by the Tribunal with proportionate costs, from the date of petition till realization, within a period of three months from the date of receipt of a copy of this judgment, and upon such deposit, it shall be open for them to realize the said amount from the 1[st] respondent. However, it is clarified that the appeal was filed with a delay of 233 days, the appellants shall not be entitled to claim any interest for the said period for the additional amount. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk