Meenakshi A v. Nithin Thomas and Others

``` MACA NO. 1983 OF 2014 ``` 1 ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 ``` ## `MACA NO. 1983 OF 2014` ``` AGAINST THE AWARD DATED 25.10.2013 IN OP(MV)NO.420/2011 OF ``` ``` MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KALPETTA ``` ## `APPELLANTS/PETITIONERS 1 TO 4:` ``` 1MEENAKSHI A, AGED 45 YEARS W/O.DECEASED E.K. PRABHAKARAN @ RAVI. 2VINEESH E.K., AGED 27 YEARS S/O.DECEASED E.K.PRABHAKARAN @ RAVI, 3REMYA E.K.AGED 27 YEARS D/O.DECEASED E.K.PRABHAKARAN @ RAVI, 4VINAYAK (MINOR), AGED 12 YEARS, REPRESENTED BY MOTHER MEENAKSHI.A, W/O.DECEASED E.K.PRABHAKARAN @ RAVI, ALL RESIDING AT IRINKOZHA HOUSE, KANNOTHUMALA THAMSAM, KAMPETTY POST, THAVINJAL VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT. BY ADV SMT.CELINE JOSEPH ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1NITHIN THOMAS, AGED 19 YEARS S/O.THOMAS, KARIMBIN THOTTATHIL HOUSE, MANANTHAVADY POST, KULIRERIKKUNNU, WAYANAD DISTRICT. 2ANTHRU, PUTHALATHU HOUSE, KODIYUR POST, NADAPURAM. 3THE ORIENTAL INSURANCE COMPANY LTD. SREE NIDHI BUILDING, BADAGARA, CALICUT. 4THOMAS, S/O.THOMAS, KARIMBIN THOTTATHIL HOUSE, MANANTHAVADY POST, KULIRERIKKUNNU, WAYANAD DISTRICT. R1,R4- SRI.ABRAHAM MATHEW , R3- SRI.GEORGE CHERIAN (SR.) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1983 OF 2014 ``` 2 ## `JUDGMENT` ``` The appellants are the petitioners 1 to 4 in O.P.(MV)No.420 of 2011 on the files of the Motor Accidents Claims Tribunal, Kalpetta. ``` ``` 2.The said claim petition was filed by the appellants along with the 5[th] petitioner therein, seeking compensation for the death of one ``` ``` E.K.Prabhakaran @ Ravi due to the injuries sustained in a motor accident that occurred on ``` ``` 26.08.2011. The accident occurred when the ``` ``` motorcycle bearing registration No.KL-18F 2903, ridden by the 1[st] respondent, owned by the 2[nd] ``` ``` respondent and insured by the 3[rd] respondent, hit ``` ``` the said Prabhakaran while walking through the road. The 1[st] appellant is the wife of the ``` ``` deceased, and appellants 2 to 4 are the children. ``` ``` The 5[th] petitioner in the original petition was the father of the deceased, who passed away, while the original petition was pending consideration before the Tribunal. Subsequently, ``` ``` MACA NO. 1983 OF 2014 ``` 3 ``` the supplementary 4[th] respondent was impleaded in the claim petition as he was the owner of the said vehicle at the time of the accident. According to the claimants, the deceased was an agriculturist aged 54 years and earning Rs.7,000/- as monthly income. The claim petition was submitted in such circumstances seeking compensation. ``` ``` 3.The 1[st] respondent appeared and filed a ``` ``` written statement denying the negligence on his part in riding the motorcycle. He denied the involvement of the motorcycle in the accident. The 3[rd] respondent Insurance Company filed a written statement admitting the coverage of ``` ``` policy in respect of the said vehicle. However, it was contended that the said vehicle was being ridden by the 1[st] respondent, a minor at the relevant time, without valid driving licence and therefore, there was violation of policy conditions. They also disputed the quantum of compensation. ``` ``` MACA NO. 1983 OF 2014 ``` 4 ``` 4.The evidence in this case consists of the ``` ``` oral testimony of PW1 and Exts.A1 to A8 from the ``` ``` side of the appellants. From the side of the respondents, Exts.B1 to B3 were marked. After the ``` ``` trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 1[st] respondent. ``` ``` 5.However, as it was found that a minor was riding the vehicle, the 3[rd] respondent, the ``` ``` Insurance Company, was absolved from the ``` ``` liability, and respondents 1 and 4 were jointly ``` ``` and severally found liable to pay the compensation. The quantum of compensation was ``` ``` fixed as Rs.6,85,400/- and respondents 1 and 4 ``` ``` were directed to deposit the said amount with interest at the rate of 7.5% per annum from the ``` ``` date of petition till realisation. This appeal is filed by the appellants in such circumstances ``` ``` challenging the order exonerating the Insurance Company and seeking enhancement of compensation. ``` `6. Heard Smt.Celine Joseph, the learned` ``` MACA NO. 1983 OF 2014 ``` 5 ``` counsel appearing for the appellants and Adv.Sri Abraham Mathew, the learned counsel appearing for thefirstandfourthrespondentsand Adv.Smt.Latha Susan Cherian, the learned counsel ``` ``` appearing for the third respondent. ``` ``` 7.It is evident that the case advanced by the Insurance Company was related to the violation of policy conditions. They did not dispute the coverage of the policy in the said vehicle. Of course, it is true that the records ``` ``` would clearly establish that the first respondent was driving the motorcycle without a valid driving licence and he was not competent to ride the said vehicle. However, that cannot be a reason to completely exonerate the Insurance Company from the liability to pay the ``` ``` compensation. As far as the claim put forward by the claimants is concerned, it is the obligation of the Tribunal and this Court, to ensure that the amount is recovered and paid to them as expeditiously as possible. Therefore, when the ``` ``` MACA NO. 1983 OF 2014 ``` 6 ``` contentions raised by the Insurance Company are related to the violation of policy condition, which is essentially a dispute between the insurer and insured, the outcome of the said dispute cannot have an impact upon the claim of the victim of the motor accident. Therefore, under no circumstances, the order passed by the Tribunal, exonerating the Insurance Company could be sustained and it is set aside; however, clarifying that the third respondent-Insurance Company shall be at liberty to recover the amount determined as compensation, from the first and fourth respondents after satisfying the award. ``` ``` 8.The next aspect is relating to the quantum of compensation. The main dispute concerns the amount awarded under the head of ``` ``` loss of dependency. For the purpose of computing the same, the Tribunal took the monthly income of the deceased as Rs.4000/- In the facts and circumstances of the case, the said amount appears to be grossly inadequate. Going by the ``` ``` MACA NO. 1983 OF 2014 ``` 7 `principles laid down by the Hon’ble Supreme Court in` _`Ramachandrappa’s V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236] and Syed Sadiq V. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735],`_ `in the absence of any evidence, the monthly income of an ordinary worker has to be fixed as Rs.4500/- in the accident occurred in the year 2004. For the subsequent years, the monthly income could be reckoned by adding Rs.500/- each per year. The said method of computation is logical, and it is consistently followed by this Court. When adopting the said method, the monthly income in this case would come to Rs.8000/-, as the accident occurred in the year 2011. Of course, it is true that the amount claimed in the claim petition is only Rs.7000/-. However, the deceased was an agriculturist, and the monthly income varies from month to month. The deceased was not a person with a static monthly income; hence, the possibility of lesser amounts being` ``` MACA NO. 1983 OF 2014 ``` 8 `shown in the claim petition cannot be ruled out. In several other decisions, including the Minu Rout and Another v. Satyapradyumna Mohapatra and` ``` Others [(2013)10 SCC 695], Honourable Supreme Court took the monthly income than the one claimed in the claim petition. Therefore, I deem it appropriate to adopt the monthly income that is calculated based on the principles laid down in Ramachandrappa and Syed Sadiq’s cases (supra) as Rs.8,000/- Therefore, while reassessing the compensation for loss of dependency with the monthly income of Rs.8000/- and by applying the other parameters as per the decision of the Hon’ble Supreme Court inNational Insurance Company Ltd., v. Pranay Sethi [2017(4) KLT 662(SC)],the said amount would come to Rs.8,71,200/- [(8000 + 10%) X 12 X 11 X ¾]. Thus, after deducting Rs.4,55,400/, the amount awarded by the Tribunal under the said head, the additional amount would come to Rs.4,15,800/-. The other head, highlighted by the learned ``` ``` MACA NO. 1983 OF 2014 ``` 9 `counsel for the appellants, is for loss of consortium, which was Rs.1,00,000/- The deceased left behind five dependents, who are the wife, three children and father. Therefore, all of the said persons are entitled to compensation for loss of consortium @ Rs.40,000/- each, which would come to a total sum of Rs. 2,00,000/However, it is seen that in the award, in addition to the amount already awarded for loss of consortium, a further sum of Rs.1,00,000/- is awarded towards loss of love and affection. As per the decision rendered by the Hon’ble Supreme Court in` _`Satinder Kaur @ Satwinder Kaur and Other [(2021)11 SCC 780],`_ `the compensation for loss of love and affection need not be granted when compensation is awarded for loss of consortium. Therefore, the amount of Rs.1,00,000/- awarded towards loss of love and affection can be adjusted to the amount receivable by the appellants for loss of consortium. Therefore, no enhancement has to be` ``` MACA NO. 1983 OF 2014 ``` 10 `granted under the said head. Similarly, the amount awarded by the Tribunal under the head of funeral expenses is in excess by Rs.10,000/-, whereas it is lesser by Rs.10,000/- under the head of loss of estate. Therefore, these amounts can be adjusted against each other, to ensure just compensation. Therefore, no further addition is required. Thus, the total additional` ``` compensation receivable by the appellants in this case would come to Rs.4,15,800/-. ``` ``` 9.In the light of the aforesaid ``` ``` observations and finding, this appeal is allowed, andtheawarddated25.10.2013in ``` ``` OP(MV)No.420/2011 passed by the Motor Accidents Claims Tribunal, Kalpetta is hereby modified by granting an additional amount of Rs.4,15,800/- (Rupees Four Lakhs Fifteen thousand Eight hundred only). Since this Court had already found that the order exonerating the Insurance Company from the liability to pay the compensation was not proper, the Insurance Company is directed to ``` ``` MACA NO. 1983 OF 2014 ``` **==> picture [12 x 9] intentionally omitted <==** ``` deposit the entire amount of compensation as awarded by the Tribunal along with the additional compensation determined in this appeal with interest at the rate as ordered by the Tribunal ``` ``` and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. It is clarified that, upon the deposit of the said amount, the third respondent can recover the said compensation from respondents 1 and 4 in this appeal by executing the award. ``` ``` This appeal is allowed accordingly. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A, JUDGE ``` ``` R.AV ```