Muthammal and others v. Basheer and Sidheeq and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 29TH DAY OF AUGUST 2018 / 7TH BHADRA, 1940** ## **MACA.NO. 2440 OF 2008** **AGAINST THE AWARD IN O.P.(M.V.) NO.925/2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM DATED 29.12.2007** ## **APPELLANTS/PETITIONERS :** **1 MUTHAMMAL,AGED 28 YEARS, W/O LATE KUMAR @ VIJAYAKUMAR, KEELAKUNNU PETTI(P.O),THURAYUR TALUK, TRICHI DISTRICT, TAMIL NADU. 2 PRABAKARAN, AGED 12 YEARS (MINOR), S/O.LATE KUMAR @ VIJAYAKUMAR, REPRESENTED BY NEXT FRIEND AND MOTHER MUTHAMMAL, W/O.LATE KUMAR @ VIJAYAKUMAR, AGED 28 YEARS, KEELAKUNNU PETTI(P.O.), THURAYUR TALUK, TRICHI DISTRICT, TAMIL NADU. 3 BHAVANESWARY, AGED 8 YEARS (MINOR), S/O.LATE KUMAR @ VIJAYAKUMAR, REPRESENTED BY NEXT FRIEND AND MOTHER MUTHAMMAL, W/O.LATE KUMAR @ VIJAYAKUMAR, AGED 28 YEARS, KEELAKUNNU PETTI(P.O.), THURAYUR TALUK, TRICHI DISTRICT, TAMIL NADU. 4 MUTHUKUMAR, AGED 7 YEARS (MINOR), S/O LATE KUMAR @ VIJAYAKUMAR, REPRESENTED BY NEXT FRIEND AND MOTHER MUTHAMMAL, W/O.LATE KUMAR @ VIJAYAKUMAR, AGED 28 YEARS, KEELAKUNNU PETTI (P.O.), THURAYUR TALUK, TRICHI DISTRICT, TAMIL NADU. 5 RAJAMMAL, W/O.SANKA PILLAI, KEELAKUNNU PETTI (P.O),THURAYUR TALUK, TRICHI DISTRICT, TAMIL NADU.** **MACA.NO. 2440 OF 2008** **2** **6 SANKA PILLAI, S/O.ONDHAN, KEELAKUNNU PETTI (P.O),THURAYUR TALUK, TRICHI DISTRICT, TAMIL NADU. BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE** ## **RESPONDENTS/RESPONDENTS :** |**1**|**BASHEER, S/O KUNHIMOIDU,**| |---|---| ||**CHUNGATH HOUSE, NATTUKAL P.O.,**| ||**MANNARKKAD TALUK, PALAKKAD DISTRICT.**| |**2**|**SIDHEEQ, S/O.KUNHIMOIDU,**| ||**CHUNGATH HOUSE,NATUKAL P.O.,**| ||**MANNARKAD TALUK, PALAKKAD DISTRICT.**| |**3**|**UNITED INDIA INSURANCE CO.LTD.,**| ||**PEECHI COMPLEX, CALICUT ROAD,**| ||**PERINTHALMANNA, MALAPPURAM DISTRICT.**| ||**BY ADVS.SRI.MANSOOR.B.H.**| ||**SRI.P.MURALEEDHARAN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 2440 OF 2008** **3** ## **JUDGMENT** This appeal is preferred against the award in O.P. (M.V.) No.925 of 2005 of the Motor Accidents Claims Tribunal, Ottappalam by the dependants of the deceased Kumar @ Vijayakumar. On 22.07.2003 at 7.30 p.m., the deceased met with an accident while travelling in a mini lorry KL-5/C-1253 and the learned Tribunal awarded compensation of Rs.4,73,000/(Rupees Four Lakh Seventy Three Thousand only) with 7% interest and cost. Being aggrieved by that, the dependants of the deceased preferred this appeal. 2. The accident was not disputed by the driver and owner in the lower court. The claimants case in the lower court was that, on 22.07.2003 at 7.30 p.m., the deceased and some other workers were travelling in a Mini Lorry KL-5/C-1253 from Shoranur to Ottappalam and when they reached at the place of occurrence, the vehicle capsized and the deceased Vijayakumar and Kamalakannan sustained serious injuries and they succumbed to the injuries on the way to hospital. The dependants of the deceased preferred O.P.(M.V.) Nos.925 of **MACA.NO. 2440 OF 2008 4** 2005 and 926 of 2005 before the Tribunal. The driver and owner were ex parte in the lower court. The insurer admitted the insurance of the vehicle, but contended that the deceased were gratuitous passengers in a goods vehicle and the insurance company have no liability to indemnify the owner. 3. Both cases O.P.(M.V.) Nos.925 and 926 of 2005 were tried jointly. The evidence consist of oral testimony of PW1 and PW2 and documentary evidence of Exts.A1 to A10. Respondents evidence consists of documentary evidence of Ext.B1. 4. Learned counsel appearing for the appellants contended that the income taken by the tribunal was very meagre since the deceased was working as a concrete worker. They were accompanying the goods such as concrete mixture, tools and implements carried in the vehicle and the insurer is liable to pay compensation. There is no violation of the permit conditions. It is also contended that meagre amount was awarded towards loss of consortium and Funeral expenses. 5. Apex Court in **National Insurance Company** V. **Pranay Sethi [2017 (4) KLT 622 (SC)]** held as follows: 61. In view of the aforesaid analysis, we proceed to record our **MACA.NO. 2440 OF 2008** **5** ## conclusions:- (i) The two-Judge Bench in Santhosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. **MACA.NO. 2440 OF 2008** **6** (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 6. In fatal accident case, the measure of damage is towards the pecuniary losses, which is to be suffered by the dependants as a result of the death. But the assessment of damages to the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables. The life expectancy of the deceased and the dependants are the major factors. Secondly, the amount that the deceased would have earned during the remaining period of his life, the amount that he would have contributed to the dependants during that period is also relevant. The chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better job and earned more income also have to be considered by the Tribunal. 7. Appellant claimed Rs.4,500/- as the monthly income, **MACA.NO. 2440 OF 2008 7** but in the absence of any evidence, the learned Tribunal took Rs.3,000/- as his monthly income and in view of **Pranay Sethi** (Supra) 40% (3,000+1,200=4,200) is to be added towards future prospects. The deceased was aged 28 years at the time of accident, therefore the multiplier is 17. There are five dependants. Therefore, in view of **Sarla Verma** v. **Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** 1/4[th] has to be deducted where the number of dependants is from 4 to 6. Therefore, they are entitled to get Rs.6,42,600/(4200x17x12x3/4) for Loss of dependency. The learned Tribunal awarded Rs.4,32,000/- on that head. The balance is Rs.2,10,600/-. Along with that they are entitled to get Rs.30,000/- for Loss of Consortium, Rs.12,000/- for Funeral expenses and Rs.15,000/- for Loss of Estate. Hence they are entitled to get Rs.2,67,600/- (Rupees Two Lakhs Sixty Seven Thousand Six Hundred only) as enhanced compensation in addition to Rs.4,73,000/- (Rupees Four Lakh Seventy Three Thousand only) with 9% interest and proportionate cost. Learned counsel appearing for the insurer contended that the deceased was a gratuitous passenger in a goods vehicle and no **MACA.NO. 2440 OF 2008 8** liability can be fastened on the insurer. Claimants contended that they were travelling along with the goods carried in the vehicle such as, concrete mixture, tools and other implements. When they have accompanied the goods carried in the vehicle, the insurer is liable to pay compensation. Apex Court in **Manuara Khatun and Others** v. **Rajesh Kumar Singh and** ## **Others [(2017) 4 Supreme Court Cases 796]** held as follows: - In view of the foregoing discussion, we are of the view that the - direction to United India Insurance Company (Respondent No.3) - they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Co. Ltd. Respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo) Respondent No.1 in execution proceedings arising in this very case as per the law laid down in Para 26 of **National Insurance Co. Ltd.** v. **Saju P. Paul [(2013) 2 SCC 41]** . ## 8. Apex Court in **National Insurance Co. Ltd.** v. ## **Saju P. Paul[(2013) 2 SCC 41]** held as follows: 20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the insurance company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (respondent no. 2 herein). **MACA.NO. 2440 OF 2008** **9** ## **** 25. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur5 and Challa Bharathamma should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years' old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01.08.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along-with accrued interest. The insurance company (appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma . 9. Therefore, the facts highlighted by the appellants show that the deceased had accompanied the goods in the offending vehicle and no merit in the submission made by the learned counsel appearing for the insurer. Hence, in view of **Manuara Khatun** (Supra), the direction of exoneration issued **MACA.NO. 2440 OF 2008** **10** by the Motor Accidents Claims Tribunal, Ottappalam is hereby set aside and the insurer is directed to satisfy the enhanced compensation and reimburse the amount paid by the insurer from the owner of the vehicle within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. M.A.C.A. is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ NS P.A. To Judge