M.V Varghese v. Jessy Peter and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 18TH DAY OF DECEMBER 2017 / 27TH AGRAHAYANA, 1939 **MACA.No. 556 of 2014** AGAINST THE AWARD IN O.P(M.V)2057/2006 of M.A.C.T., PERUMBAVOOR DATED 25-11-2013 ## **APPELLANT** /RESPONDENT NO1 M.V VARGHESE, S/O.VARKEY, AGED 50 YEARS, MANAGING PARTNER, YUVA DEEPTHI ENTERPRISES, 9/301A, KEEZHMADU P.O., ALUVA, ERNAKULAM. BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS** /PETITIONERS AND RESPONDENTS 2 AND 3: 1. JESSY PETER, W/O LATE K.A. PATHROSE @ PETER, KALAPARAMBIL HOUSE, ERUMATHALA KARA, CHUNAGAMVELY, ALUVA EAST VILLAGE - 683 105. 2. JEFFIN PETER (MINOR), AGED 16 YEARS S/O. LATE K.A.PATHROSE @ PETER, KALAPARAMBIL HOUSE, ERUMATHALA KARA, CHUNAGAMVELY, ALUVA EAST VILLAGE - 683 105. REP : BY ITS NEXT FRIEND AND GUARDIAN MOTHER. 3. THRESSIAMA, W/O.LATE ANTONY, KALAMPARAMBIL HOUSE ERUMATHALA KARA, CHUNAGAMVELY, ALUVA EAST VILLAGE - 683 105. 4. VIJI JOSEPH, S/O.M.A.JOSEPH, MAZHUVANCHERRY HOUSE, KEEZHUMADU KARA, KEEZHUMADU P.O., ALUVA EAST VILLAGE - 683 105. 5. NATIONAL INSURANCE COMPANY LTD. URUMBATH BUILDING, PUMP JUNCTION, ALUVA - 683 105. R1-R3 BY ADV. SRI.P.THOMAS GEEVERGHESE R5 BY ADV. SRI.S.K.AJAYAKUMAR R5 BY ADV. SRI. M A GEORGE (B/O, NO MEMO) R-R4 BY ADV. SRI.T.C.SURESH MENON R-R4 BY ADV. SRI.P.S.APPU THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- M.A.C.A.No.556 of 2014 -------------------------------Dated 18[th] December, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is preferred by the first respondent in O.P. (M.V)No.2057 of 2006 on the files of the Motor Accidents Claims Tribunal, Perumbavoor. He is the insured owner of a light goods vehicle bearing Reg.No.KL-07/AW-1461 involved in the accident that led to the filing of the aforesaid claim petition. It was filed by one K.A. Pathrose who sustained injuries in a motor vehicle accident occurred on 12.12.2005 at about 11 a.m. involving the aforesaid vehicle. He was then riding his motorcycle bearing Reg.No.KL-07/8997. On sustaining injuries, he was taken to Medical Trust Hospital, Ernakulam and thereafter he was treated at various other hospitals. After a prolonged treatment for a period of 200 days he succumbed to the injuries on 20.8.2007. The Tribunal held that his legal heirs who subsequently got themselves impleaded as additional petitioners have succeeded in establishing that the proximal cause for his death is the aforesaid accident and consequently granted compensation for death. As against a claim for 13,00,000/- as compensation the Tribunal granted an₹ M.A.C.A.No.556 OF 2014 2 amount of 11,51,253/- as compensation with interest at the rate of₹ 8% per annum from the date of petition till realisation. After analysing the evidence on record, the Tribunal held that the negligence on the part of the 2[nd] respondent, who was the driver of the offending vehicle, led to the accident and respondents 1 to 3 were held liable to pay the amount of compensation. At the same time, holding that the offending vehicle is a heavy goods vehicle and that the second respondent was not then having a valid licence as also badge to drive the said class of vehicles granted liberty to the third respondent therein/5[th] respondent herein, to recover the amount from respondents 1 and 2 therein viz., the appellant and the 4[th] respondent herein, after satisfying the award. It is on being aggrieved by the liberty granted to the insurer of the aforesaid vehicle viz., 5[th] respondent to effect recovery as also raising the contention that the compensation granted is exorbitant that the captioned appeal has been preferred. 2. We have heard the learned counsel for the appellant, the learned counsel appearing for respondents 1 to 3, the learned counsel appearing for the 4[th] respondent as also the learned standing counsel appearing for the 5[th] respondent. 3. It is to be noted that there is no dispute regarding the cause of the accident viz., negligence on the part of the 2[nd] M.A.C.A.No.556 OF 2014 3 respondent/4[th] respondent herein, who was the driver of the offending vehicle at the time of the accident. Evidently, the 5[th] respondent, the insurer took up a contention that the 4[th] respondent herein, the driver of the offending vehicle was not having a valid driving licence as also badge to drive the vehicle in question, at the time of the accident. Such a contention was raised by the 5[th] respondent based on the belief that the offending vehicle viz., tipper lorry bearing Reg.No.KL-7/AW-1461 is a heavy goods vehicle. A careful scanning of the impugned award would reveal that the Tribunal had virtually found that the offending vehicle being a tipper lorry is a heavy goods vehicle and that the licence which the second respondent was then possessing was valid only from 19.9.2002 to 18.9.2005 and that the accident had occurred on 12.12.2005, i.e., after the expiry of the said licence. Evidently, it would reveal that the second respondent was also not having a badge to drive the said vehicle. Thus, obviously it is the conclusion arrived at by the Tribunal that the offending vehicle is a heavy goods vehicle that culminated in the ultimate fastening of the liability virtually on the appellant/the first respondent and the second respondent and also in granting liberty to the insurer of the said vehicle to recover the award amount from them after satisfying the award. 4. The learned counsel appearing for the appellant contends M.A.C.A.No.556 OF 2014 4 that the Tribunal had committed a palpable error in holding that the offending vehicle is a heavy goods vehicle. It is to be noted that though the appellant had contested the matter before the Tribunal he could not produce the registration particulars of the vehicle involved in the accident before the Tribunal. However, the registration particulars of the vehicle in question were produced along with this appeal and I.A.No.601 of 2014 was filed with the prayer to accept the RC particulars as well as the driving licence of the 4[th] respondent as additional documents under Order XLI, Rule 27, read with Section 151 of the Code of Civil Procedure. Therefore, the first question is whether the said document can be admitted as additional evidence in this appeal. Though the said application was filed to receive the aforesaid document as an additional evidence, this Court thought it fit to hear the same along with the appeal so that this Court could have the complete picture before deciding the question whether it is a necessary document required for a proper determination of the matter involved in the appeal. This is perfectly in tune with the position of law settled by this Court in **Mariamma** v. **Poulose (2008 (1)KLT 566)** . Though this interlocutory application was filed along with the appeal in the year 2014 the respondents had not filed any objection. After hearing the learned counsel on both sides and perusing the said document we are M.A.C.A.No.556 OF 2014 5 of the considered view that the said document is highly necessary for a proper disposal of this appeal as the fate of this appeal would depend upon the question whether the vehicle involved in this case is a heavy goods vehicle or a light goods vehicle. To decide that question necessarily, the registration particulars of the said vehicle have to be looked into. In such circumstances, we are inclined to accept the said document as additional evidence invoking the power under Order 41 Rule 27 of CPC. It is marked as Ext.B4. 5. Now, the question to be considered is whether the vehicle involved in this case is a heavy goods vehicle or a light goods vehicle. No volume of argument is required to decide the said issue. A perusal of Ext.B4 which contains the registration particulars of the offending vehicle viz., the vehicle bearing Reg.No.KL-07/AW-1461 would reveal that it is a light goods vehicle. We have already noted that none of the respondents had filed any objection in the above mentioned I.A. carrying the prayer for receiving the aforesaid document as additional evidence. Annexure-A1 would further reveal that the class of vehicle is shown there as `LMV-Goods Carrier Truck'. Its unladen weight, going by Annexure-A1, is 3100 Kg. Thus, in the light of Ext.B4, the finding of the Tribunal that the vehicle involved in the accident is a heavy goods vehicle cannot be sustained and it has to be said that the said vehicle is M.A.C.A.No.556 OF 2014 6 a light goods vehicle. The said finding by itself cannot be a reason to upturn the finding of the Tribunal. The next question to be considered is whether the 2[nd] respondent before the Tribunal, viz., 4[th] respondent herein was authorised to drive the said vehicle at the time of the accident. In other words, the question is whether in addition to the licence to drive a light motor vehicle any endorsement on the said licence to drive the vehicle in question was required. The said question is no longer _res integra_ in the light of the decision of the Hon'ble Apex Court in **Mukund Dewangan** v. **Oriental Insurance Company Limited (2017 (3) KLT 1000)** . The Hon'ble Apex Court had considered the question whether a driver who was having a licence to drive `light motor vehicle' and was driving `transport vehicle' of that class was required additionally to obtain an endorsement to drive a transport vehicle. The Apex Court held thus:- “Light motor vehicle' as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.” In the contextual situation, it is only apposite to refer to the aforesaid provisions of law. Sections 2(15), 2(21) & 2(48) of the Motor Vehicles M.A.C.A.No.556 OF 2014 7 Act read thus:- - “ **2(15)** “gross vehicle weight” means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle; - **2(21)** “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed [7500] kilograms; - **2(48)** “unladen weight” means the weight of a vehicle or trailer including all equipment ordinarily used with the vehicle or trailer when working, but excluding the weight of a driver or attendant; and where alternative parts or bodies are used the unladen weight of the vehicle means the weight of the vehicle with the heaviest such alternative part or body;” Going by the said decision, the Hon'ble Apex Court held that a transport vehicle and an omnibus, the gross weight of either of which does not exceed 7500 Kg. would be a light motor vehicle and also motor car or tractor or a road roller, `unladen weight' of which does not exceed 7500kg. would also be a light motor vehicle. Furthermore, the Hon'ble Apex Court considered the question, to drive such class of vehicles, besides a licence to drive light motor vehicles whether a separate endorsement to drive transport vehicle is required and it was answered in the negative. In other words, the Apex Court held that there would not be any requirement to obtain separate endorsement to drive a 8 M.A.C.A.No.556 OF 2014 transport vehicle which is a light motor vehicle. If the driver is holding a licence to drive class of `light motor vehicle', he could drive transport vehicles of such class without any separate endorsement to that effect. In the light of the aforesaid exposition of law by the Hon'ble Apex Court it is evident that a separate independent endorsement on the licence was not required by the second respondent to drive the said vehicle. As noticed hereinbefore and going by Annexure-A1, in the light of the decision of the Apex Court in **Mukund Dewangan's** case (supra) as also the provisions under Sections 2(21) the vehicle involved in the accident is a `light goods vehicle'. Admittedly, there is no dispute that the second respondent was having a licence to drive light motor vehicles. The Tribunal had granted liberty to the third respondent to recover the amount required to satisfy the impugned award on the premise that the vehicle in question is a heavy goods vehicle and the second respondent was not having a valid licence and badge to drive such class of vehicles. When once it is found that the vehicle involved is only a light goods vehicle and the second respondent was having a valid licence to drive light motor vehicles, in the light of the decision in **Mukund Dewangan's** case (supra) the finding of the Tribunal cannot be sustained. In other words, it has to be held that the second respondent was authorised to drive the offending vehicle at the time of M.A.C.A.No.556 OF 2014 9 the accident. When that be so, the liberty granted to the third respondent to effect recovery of the awarded amount from respondents 1 and 2 has to be set aside. We do so. In other words, in such circumstances, the third respondent therein viz., 5[th] respondent herein, the insured owner of the vehicle is bound to indemnify the appellant herein. Accordingly, it is held that respondents 1 to 3 before the Tribunal viz., the appellant, 4[th] and 5[th] respondents are jointly and severally liable to compensate the claimants/ respondents 1 to 3 herein. 6. Now, the question to be considered is whether the compensation granted is exorbitant warranting interference. As noticed hereinbefore, the Tribunal had granted compensation treating the claim petition as one for the death of Pathrose. He was aged 42 at the time of the accident and as noticed hereinbefore, he succumbed to the injuries only on 20.8.2007 though he sustained the injuries in the motor vehicles accident occurred on 12.12.2005. He is survived by his wife, aged 36 years, his son aged 9 years and his mother aged 67 years. They are the additional petitioners before the Tribunal and respondents 1 to 3 herein. As against a claim of 13,00,000/- the Tribunal had₹ granted only an amount of 11,51,253/-. The learned counsel₹ appearing for the appellant submitted that the compensation granted towards pain and sufferings, love and affection, loss of consortium are M.A.C.A.No.556 OF 2014 10 on the higher side in the light of the decision of the Hon'ble Apex Court in **National Insurance Company Limited** v. **Pranay Sethi (2017** **(4) KLT 662 (SC))** . On looking at the quantum of compensation granted under the said heads, it is to be taken that there is substance in the contention of the learned counsel appearing for the appellant. But, at the same time, we are of the considered view that, that by itself cannot be a reason to interfere with the quantum of compensation granted in a claim petition filed seeking compensation for death under Section 166 of the M.V. Act. In the light of Section 168 of the Motor Vehicles Act, a Claims Tribunal is bound to grant just compensation. Therefore, we will have to consider the question whether what was ultimately granted by the Tribunal as per the impugned award is just compensation or not. In the claim petition it was averred that the deceased Pathrose was earning 5,000/- per month. In fact, the claim₹ petition was filed by him seeking compensation for the injuries and it was converted as a claim for death when he succumbed to the injuries during the pendency of the said petition. As noticed hereinbefore, the accident had occurred on 12.12.2005 and at that time, he was aged 42 years. Pathrose was maintaining a family consisting of four members including himself. At the same time, the Tribunal had taken the monthly income for calculation purpose notionally only as 3,500/-.₹ M.A.C.A.No.556 OF 2014 11 After taking the monthly income notionally as 3,500/- 1/3₹ rd of the same was deducted towards personal expenses. Considering the year of the accident as also the age of the deceased we are of the considered view that there was absolutely no reason for disbelieving the claim of the income of the deceased. The first respondent was aged only 36 years at the time of the death of her husband and the 2[nd] respondent, the son of Pathrose was aged only 9 years. Taking into account all such aspects, we are of the considered view that though compensation granted under certain heads are excessive, the aggregate compensation granted by the Tribunal can only be said to be just compensation taking into account the aforesaid facts and factors. When once it is found that what is granted by the Tribunal is a just compensation the fact that under certain heads compensation was granted excessively cannot be a reason to interfere with the award. In such circumstances, the contention of the appellants that the quantum of compensation is exorbitant and liable to be scaled down, stands rejected. In the light of the aforesaid findings, this appeal is partly allowed. In other words, the quantum of compensation granted by the Tribunal is confirmed and the liberty granted to the insurer of the offending vehicle viz., 5[th] respondent to recover the amount to satisfy M.A.C.A.No.556 OF 2014 12 the award from the appellant and the 4[th] respondent is set aside. It is held that consequently, the 5[th] respondent/3[rd] respondent before the Tribunal is directed to deposit the amount, if not already deposited, in terms of the impugned award. There will be no order as to costs in this appeal. The appellant shall be refunded the statutory amount deposited in terms of Section 173(2) of the Motor Vehicles Act, on proper application. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS