National Insurance Company Limited v. Anitha w/o Rajappan and others (MACA No. 2670 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940** **MACA.No. 2670 of 2014** **AGAINST THE AWARD IN OPMV 258/2004 of ADDITIONAL DISTRICT COURT& MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA DATED 06-05-2014** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED THIRUVALLA NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G. ROAD, KOCHI - 35** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1,2,4 & 5:** **1 ANITHA W/O. RAJAPPAN, KONDUPARAMAPIL HOUSE, ITHITHANAM P.O.,CHANGANASSERY NOW RESIDING AT PAZHAVELIL KIZHIKKETHIL HOUSE, THUKALASSERY, THIRUMOOLAPURAM P.O., THIRUVALLA PIN 689320.** **2 ADWITHA RAJ MINOR, D/O. RAJAPPAN, KONDUPARAMAPIL HOUSE, ITHITHANAM P.O.,CHANGANASSERY NOW RESIDING AT PAZHAVELIL KIZHIKKETHIL HOUSE, THUKALASSERY, THIRUMOOLAPURAM P.O., THIRUVALLA PIN 689320 REPRESENTED BY HER MOTHER 1ST RESPONDENT.** **3 SUKUMARAN S/O. GOVINDAN, PERUMPELLIKKATTU MALAYIL HOUSE, THUKALASSERY, THIRUMOOLAPURAM P.O., THIRUVALLA PIN 689320.** **4 SURESH KUMAR S/O. NARAYANA PILLAI, KARIPPAL HOUSE, THUKALASSERY, THIRUMOOLAPURAM P.O., THIRUVALLA 689320.** **5 RAGHAVAN THONDUPARAMBIL HOUSE, ITHITHANAM P.O., CHANGANASSERY - 685328.** MACA.No. 2670 of 2014 2 **6 SOSAMMA** **W/O. RAGHAVAN, THONDUPARAMPIL HOUSE, ITHITHANAM P.O., CHANGANASSERY PIN 685328.** **BY ADVS. SRI.S.SUBHASH CHAND SRI.R.SANTHOSH BABU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 2670 of 2014 3 ## **JUDGMENT** The insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal has come up in this appeal challenging the award passed by the Tribunal. 2. The husband of the first claimant and the father of the second claimant died in a motor accident took place on 08.11.2002 involving a goods autorickshaw covered by a policy of insurance issued by the appellant. The deceased was a passenger in the said vehicle. A sum of Rs.12,00,000/- was claimed in the proceedings by way of compensation. The appellant contested the claim petition on the ground that the vehicle involved in the accident was one in which none other than its driver is permitted to travel and the deceased being an unauthorised passenger in the vehicle, he was not covered by the policy and therefore, they have no liability to indemnify the owner of the vehicle. They also contended that the quantum of compensation claimed in the proceedings is excessive. The Tribunal rejected the contention taken by the appellant as regards their liability. As regards the quantum, the Tribunal found that the claimants are entitled to a sum of Rs.11,80,000/-towards compensation. Consequently, an award was passed directing the appellant to pay a sum of Rs.11,80,000/- to the claimants. The appellant is aggrieved by the said award. 3. Heard the learned senior counsel for the appellant, MACA.No. 2670 of 2014 4 the learned counsel for the claimants as also the learned counsel for the owner of the vehicle involved in the accident. 4. The learned senior counsel for the appellant contended that in an exactly identical case, the Apex Court in **United India Insurance Co.Ltd. v. Suresh** [2008 (4) KLT 552(SC)] has held that the insurer has no liability in the matter. The learned counsel also placed reliance on the decision of the Division Bench of this court in **New India Assurance Company Ltd. v. Abdul Rehaman** [2013 ACJ 1152], in support of the said contention. As regards the quantum of compensation fixed by the Tribunal, the learned counsel contended that this being a case arising from an accident took place in the year 2002, in the absence of any evidence as regards the monthly income of the deceased, the Tribunal ought not have reckoned the monthly income of the deceased at Rs.4,000/-. It was also contended that even assuming that the Tribunal was justified in reckoning the monthly income of the deceased at Rs.4,000/-, the Tribunal was not justified in adding 50% towards future prospects. It was further contended by the learned counsel that the sum of Rs.1,00,000/- granted by the Tribunal towards loss of consortium for the wife is far in excess, in the light of the decision of the Apex Court in **National Insurance Company Ltd** v **Pranay Sethi** [2017(4) KLT 662 (SC)]. It was further contended by the learned senior counsel that there is absolutely no justification for MACA.No. 2670 of 2014 5 the Tribunal in granting Rs.1,70,000/- towards loss of love and affection. 5. The learned counsel for the claimants contended that the deceased was covered by the policy of insurance and the submission made to the contrary by the learned senior counsel for the appellant is incorrect and unsustainable. It was also contended by the learned counsel that even if it is found that the deceased was not covered by the policy of insurance, the insurer is not entitled to be exonerated from the liability and that in such cases, they are only entitled to realise the compensation from the owner after paying the same to the claimants. The learned counsel placed reliance on the decision of the Apex Court in **United India Insurance Co. Ltd. v. Poonam** [2011(1) KLT SN 108 (C.No.152) SC], in support of the said contention. As regards the quantum, the learned counsel contended that the quantum of compensation granted by the Tribunal cannot be said to be excessive in the facts and circumstances of the case. 6. The learned counsel for the owner of the vehicle contended that there is nothing on record in the instant case to indicate the seating capacity of the vehicle involved in the accident. It was his specific contention that in so far as the deceased was traveling in the vehicle as the owner of the goods carried therein, he was covered by the statutory policy issued by the appellant for the vehicle MACA.No. 2670 of 2014 6 ## in terms of the provisions contained in the Motor Vehicles Act 1988. 7. Ext.B1 is the policy of insurance issued by the appellant for the vehicle for the relevant period. Though the policy was produced by the appellant before the Tribunal, no other evidence was let in by them. Ext.B1 does not give any indication as to the seating capacity of the vehicle. In other words, there is nothing on record before the Tribunal as to the seating capacity of the vehicle involved in the accident. It is beyond dispute that the owner of the goods carried in a goods vehicle is a person covered by a statutory policy if the vehicle is one in which he could travel along with the goods. In the absence of any evidence to show that the vehicle involved in the case is one in which the owner of the goods carried in the vehicle could travel along with the goods, I am of the view that the Tribunal is right in holding that the appellant is liable to indemnify the owner as it is admitted by them that the vehicle at the time of accident was covered by a statutory policy. 8. Coming to the quantum of compensation, the accident being one took place in the year 2002, in the light of the decision of the Apex court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited,** (2011) 13 SCC 236, where the Apex court has reckoned the notional monthly income of the claimant who was unable to prove his income at Rs.4,500/- in the MACA.No. 2670 of 2014 7 context of an accident took place in the years 2004, the Tribunal cannot be found fault with for having reckoned the monthly income of the claimant in the context of the accident took place in the year 2002 at Rs.4,000/-. But the learned senior counsel is right in contending that the Tribunal was not justified in reckoning 50% of the same towards future prospects. In the light of the decision in **Pranay Sethi,** as the deceased was not having a permanent employment, the Tribunal should have added only 40% of the income towards future prospects. If compensation for loss of dependency is worked out in that fashion, the same would come to only Rs.8,06,400/- (Rs.5,600x12x16x3/4). In other words, the compensation granted towards loss of dependency is excess by Rs.57,600/-. In **Pranay Sethi** , the Apex court held that under the conventional heads of loss of estate, funeral expenses and loss of consortium, a sum of Rs.70,000/- can be granted. Under those heads, the Tribunal has granted a total sum of Rs.1,35,000/-. A sum of Rs.65,000/- was in excess under the said heads. In **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), the Apex court after referring to **Pranay Sethi** , held that the parents are entitled to compensation for filial consortium. In so far as it is seen that the claim petition is one preferred on behalf of the parents of the deceased also, according to me, filial consortium at the rate of Rs.40,000/- each can be granted to the parents of the deceased. The MACA.No. 2670 of 2014 8 claimants are, therefore, entitled to get a sum of Rs.80,000/- by way of compensation under the said head. The Tribunal has granted a sum of Rs.1,70,000/- to the claimants towards compensation for loss of love and affection. The minor daughter of the deceased is certainly entitled to compensation for loss of love and affection. If compensation payable to her is fixed at Rs.50,000/-, a sum of Rs.1,20,000/- granted under the said head is in excess. Further, it is seen that only a sum of Rs.5,000/- was granted by the Tribunal to the claimants for pain and suffering. According to me, the said compensation has to be raised to Rs.10,000/-. The claimants are, therefore, entitled to an additional compensation of Rs.5,000/- under this head. The excess compensation granted by the Tribunal to the claimants under different heads would come to Rs.2,42,600/-. The additional compensation which the claimants are found to be entitled comes to Rs 85,000/-. The excess compensation to be deducted from the total compensation would therefore come to Rs.1,57,600/-. In the result, the impugned award is modified, refixing the compensation payable to the claimants at Rs.10,22,400/- [11,80,0001,57,600]. All other directions contained in the award will stand. ## **Sd/-** **P.B.SURESH KUMAR** **JUDGE** Mn