National Insurance Company Limited v. Nabeeza & Others (MACA Nos. 783/2013, 844/2013 & 255/2014), High Court of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, ``` ## **`1943`** ## **`MACA NO. 783 OF 2013`** ``` AGAINST THE COMMON AWARD IN O.P(MV) 682/2010 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, PALA`** ## **`APPELLANT/ADDL. 3RD RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LIMITED, KOTTAYAM 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 & 1ST RESPONDENT:`** ``` 1NABEEZA, W/O.LATE MOHAMMED BASHEER, VALIYAVEETTIL HOUSE, VALLAKKADAVU P.O., MANCHUMALA VILLAGE ``` ``` NOW RESIDING AT KANIAMKUNNEL HOUSE, NADACKAL P.O., ERATTUPETTA VILLAGE, MEENACHIL TALUK. PIN - 686 320. 2RUKKIYA BEEVI, D/O.LATE MOHAMMED BASHEER, VALIYAVEETTIL HOUSE, VALLAKADAVU P.O., MANCHUMALA VILLAGE, NOW RESIDING AT KANIAMKUNNEL HOUSE, NADACKAL P.O., ERATTUPETTA VILLAGE, MEENACHIL TALUK. PIN - 686 320. 3UKKASH V.M., S/O.LATE MOHAMMED BASHEER, VALIYAVEETTIL HOUSE, VALLAKADAVU P.O., MANCHUMALA VILLAGE, NOW RESIDING AT KANIAMKUNNEL HOUSE, NADACKAL P.O., ERATTUPETTA VILLAGE, MEENACHIL TALUK. PIN - 686 320. ``` ``` M.A.C.A Nos.783, 844 of 2013 & 255 of 2014 ``` 2 ``` 4UMMULKULSOOM, D/O.LATE MOHAMMED BASHEER, VALIYAVEETTIL HOUSE, VALLAKADAVU P.O., MANCHUMALA VILLAGE, ``` ``` NOW RESIDING AT KANIAMKUNNEL HOUSE, NADACKAL P.O., ERATTUPETTA VILLAGE, MEENACHIL TALUK. PIN - 686 320. ``` ``` 5PATHUKUNJ, W/O.FAKEER, VALIYAVEETTIL HOUSE, VALLAKADAVU P.O, MANCHUMALA VILLAGE, ``` ``` NOW RESIDING AT KANIAMKUNNEL HOUSE, NADACKAL P.O., ERATTUPETTA VILLAGE, MEENACHILTALUK. PIN - 686 318. ``` - `6 RAVI, S/O.GOPALAN, PUTHUPARAMBIL HOUSE, THANGAMALA, VANDIPERIYAR P.O., IDUKKI DISTRICT. PIN - 685 320.` ``` BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2021, ALONG WITH MACA.844/2013 AND MACA.255/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A Nos.783, 844 of 2013 & 255 of 2014 ``` 3 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, ``` ## **`1943`** ## **`MACA NO. 844 OF 2013`** ``` AGAINST THE COMMON AWARD IN O.P(MV) 849/2010 OF MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL, PALA ``` ## **`APPELLANT/ADDL. 3RD RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LIMITED, KOTTAYAM, ``` ``` NOW REPRESENTED BY THE ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS/PETITIONER & 1ST RESPONDENT:`** ``` 1ABDUL KHADER, S/O.P.K.IBRAHIM, PUTHUPARAMBIL HOSUE, VALLAKKADAVU P.O, MANCHUMALA VILLAGE, ``` ``` NOW RESIDING AT KANIAMKUNNEL HOUE, NADACKAL P.O, ERATTUPETTA VILLAGE, MEENACHIL TALUK-686 318. ``` ``` 2RAVI, S/O.GOPALAN, PUTHUPARAMBIL HOUSE, THANGAMALA, VANDIPERIYAR P.O, IDUKKI DIST-685 556. ``` ``` BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2021, ALONG WITH M.A.C.A. Nos.783/2013 AND 255/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A Nos.783, 844 of 2013 & 255 of 2014 ``` 4 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, ``` ## **`1943`** ## **`MACA NO. 255 OF 2014`** ``` AGAINST THE COMMON AWARD IN O.P.(M.V) NO.682/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1NABEEZA, W/O. LATE MOHAMMED BASHEER, VALIYAVEETTIL HOUSE, VALLAKKADAVU P.O., VALLAKKADAVU KARA, MANCHUMALA VILLAGE, ``` ``` NOW RESIDING AT KANIAMKUNNEL HOUSE, NADAKKAL P.O., ERATTUPETTA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. ``` ``` 2RUKKIYA BEEVI, D/O. LATE MOHAMMED BASHEER, VALIYAVEETTIL HOUSE, VALLAKKADAVU P.O., VALLAKKADAVU KARA, MANCHUMALA VILLAGE, ``` ``` NOW RESIDING AT KANIAMKUNNEL HOUSE, NADAKKAL P.O., ERATTUPETTA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. ``` ``` 3UKKASH V.M., S/O. LATE MOHAMMED BASHEER, VALIYAVEETTIL HOUSE, VALLAKKADAVU P.O., VALLAKKADAVU KARA, MANCHUMALA VILLAGE, ``` ``` NOW RESIDING AT KANIAMKUNNEL HOUSE, NADAKKAL P.O., ERATTUPETTA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. ``` ``` 4UMMULKULSOOM, D/O. LATE MOHAMMED BASHEER, VALIYAVEETTIL HOUSE, VALLAKKADAVU P.O., VALLAKKADAVU KARA, MANCHUMALA VILLAGE, ``` ``` NOW RESIDING AT KANIAMKUNNEL HOUSE, NADAKKAL P.O., ERATTUPETTA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. ``` ``` M.A.C.A Nos.783, 844 of 2013 & 255 of 2014 ``` 5 ``` 5PATHUKUNJ, W/O.FAKEER, VALIYAVEETTIL HOUSE, VALLAKKADAVU P.O., VALLAKKADAVU KARA, MANCHUMALA VILLAGE, ``` ``` NOW RESIDING AT KANIAMKUNNEL HOUSE, NADAKKAL P.O., ERATTUPETTA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. ``` ``` BY ADV SRI.ABRAHAM MATHEW (VETTOOR) ``` ## **`RESPONDENTS:`** - `1 RAVI, S/O. GOPALAN, PUTHUPARAMBIL HOUSE, THANGAMALA, VANDIPERIYAR P.O., IDUKKI DISTRICT. PIN-685 533.` - `2 THE NEW INDIA ASSURANCE CO. LTD., REP.BY ITS DIVISIONAL MANAGER, KOTTAYAM. PIN-686 001.` - `3 THE NATIONAL INSURANCE CO. LTD., REP.BY ITS DIVISIONAL MANAGER, KOTTAYAM. PIN-686 001.` ``` BY ADVS. SRI.P.JACOB MATHEW SRI.LAL K.JOSEPH SRI.MATHEWS JACOB SR. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2021, ALONG WITH MACA Nos.844/2013 AND 255/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A Nos.783, 844 of 2013 & 255 of 2014 ``` 6 ## **`COMMON J UDGMENT`** ``` M.A.C.A No.255/2014 is at the instance of the petitioners in O.P.(M.V) No.682/2010, on the file of Motor Accidents Claims Tribunal, Pala challenging the award dated 31.01.2013. ``` ``` 2.The 3[rd] respondent, Insurance Company in O.P.(M.V) No.682/2010 filed M.A.C.A. No.783/2013 challenging the same award in this appeal. ``` ``` 3.M.A.C.A. No.844/2013 also one filed by the 3[rd] respondent, Insurance Company in O.P. (M.V) No.849/2010 challenging the award dated ``` ``` 31.01.2013, on the file of Motor Accidents Claims Tribunal, Pala. ``` `4. Heard both sides in detail.` `5. Summary of the case:` ``` Petitioners in O.P.682/2010 are the wife, ``` ``` M.A.C.A Nos.783, 844 of 2013 & 255 of 2014 ``` 7 ``` children as well as the mother of the deceased Mohammed Basheer, aged 49 years, who died in a motor accident occurred on 15.04.2010 at 2 P.M. near Kakki Junction at Vandipperiyar Kara in Vandipperiyar village. Petitioner in O.P. No.849/10 is an injured, who sustained injuries in the same motor accident at Kakki junction. The deceased husband of the 1[st] petitioner to O.P.No.682/2010 was alleged to be travelling in auto No.KL-37/6246 driven by the 1[st] respondent at the time of accident. Petitioner in O.P. No.849/10 was also as a passenger in the same auto. When the auto reached near the place of accident, due to the rash and negligent driving of the vehicle by the 1[st] respondent, it overturned. Mohammed Basheer sustained serious injuries and he succumbed to the injuries on the way to the ``` ## **`M.A.C.A Nos.783, 844 of 2013 & 255 of 2014`** **==> picture [7 x 9] intentionally omitted <==** ``` Taluk Headquarters Hospital, Vandipperiyar. Petitioner in O.P. No.849/10 sustained bodily injuries in the accident. He was admitted in the Govt. Hospital, Vandipperiyar and remained in the hospital as inpatient. The accident caused due to the rash and negligent driving of the auto by the 1[st] respondent, owner-cum- driver of the vehicle. ``` ``` 6.Additional 3[rd]respondent was the insurer of the vehicle at the time of the accident. ``` ``` 7.According to the petitioners, deceased Mohammed Basheer was a businessman, who was running a tea shop and grocery shop at Vallakadavu in Periyar village and was earning Rs.10,000/- per month at the time of the accident. The petitioner in O.P.No.849/10 states that he was running tea shop and was earning Rs.10,000/- per month at the time of ``` ``` M.A.C.A Nos.783, 844 of 2013 & 255 of 2014 ``` **==> picture [7 x 9] intentionally omitted <==** ``` the accident. Hence these petitions claiming compensation. ``` ``` 8.In M.A.C.A No.255/2014, it is argued by the learned counsel for the appellants that though Rs.10,000/- was claimed as the income of the deceased, who was running a tea shop, the Tribunal fixed the same at Rs.4,800/- and no addition was given towards future prospects. ``` `9. However, the learned counsel for the Insurance Company would submit that income based on the ratio in` _**`Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.`**_ `:` **`(2011) 13 SCC 236,`** `can be taken in this case with 25% addition as argued by the learned counsel for the appellants subject to reduction of` ¼ `considering the number of appellants as ‘4’ following the ratio in` ## **`M.A.C.A Nos.783, 844 of 2013 & 255 of 2014`** **==> picture [13 x 9] intentionally omitted <==** ## _**`National Insurance Company Ltd. v. Pranay`**_ ``` Sethi : (2017) 16 SCC 680. It is submitted by the learned counsel for the Insurance Company further that the Tribunal reduced only ⅕ on a wrong notion without following the ratio and, therefore, ¼ reduction is to be made. ``` ``` 10.On appreciating the rival submissions the compensation granted by the Tribunal required to be re-calculated by taking Rs.7,500/- as the monthly income, following the ratio inRamachandrappa’scase (supra), where Rs.4,500/- was fixed as the monthly income of injured coolie worker during 2004. Thus, the monthly income is re-fixed as Rs.7,500/-. Following the ratio inPranay Sethi’scase (supra), 25% is added towards future prospectus. ``` ``` 7,500 + 25% = 9,375x12x13x¾ = 10,96,875/- Out of which Rs.5,99,040/- was given by ``` 11 ``` M.A.C.A Nos.783, 844 of 2013 & 255 of 2014 ``` ``` the Tribunal and the remaining amount come to Rs.4,97,835/-. ``` ``` 11.Apart from the above, the learned counsel for the appellants canvassed increase under the conventional heads following the ratio in Pranay Sethi’scase (supra). The Tribunal granted Rs.5,000/- under the 'funeral expenses' and Rs.2,500/- was granted under the head ‘loss of estate’. It is settled as per the decision inPranay Sethi’scase (Supra) that the appellants are entitled to get Rs.10,000/- more under the head 'funeral expenses' andRs.12,500/-more under the head 'loss of estate'. Therefore, Rs.22,500/- more is granted under these heads. On perusing the award, it seems that Rs.15,000/- alone was granted under the head ‘loss of consortium’ though the appellants together are entitled to Rs.2,00,000/-. Therefore, Rs.1,85,000/- more is ``` ``` M.A.C.A Nos.783, 844 of 2013 & 255 of 2014 ``` **==> picture [13 x 9] intentionally omitted <==** ``` granted under the head ‘loss of consortium’ following the ratio inPranay Sethi'scase (supra). ``` ``` 12.Following the ratio inUnited India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others : 2020 (3) KHC 760,Rs.20,000/- was granted under the heads ‘pain and sufferings’ and 'loss of love and affection', and the same is reduced. ``` ``` 13.Coming to M.A.C.A.Nos.783/2013 & 844/2013 the learned counsel for the Insurance Company/appellants submitted that these appeals have been filed canvassing exoneration of the Company from liability, highlighting the point that the autorickshaw involved in the accident carried 5 persons as against the permissible limit of 3. However, the learned counsel fairly submitted that this contention is having no force in view of the recent ``` ``` M.A.C.A Nos.783, 844 of 2013 & 255 of 2014 ``` **==> picture [13 x 9] intentionally omitted <==** ## `judicial pronouncement.` ``` 14.Therefore, M.A.C.A. No.783/2013 is allowed in part by reducing the expenses towards personal expenses by ¼instead of ⅕ and by reducing the amounts granted under the heads 'pain and sufferings' and 'loss of love and affection'. At the same time M.A.C.A. No.844/2013 stands dismissed. ``` ``` 15.M.A.C.A. No.255/2013 is allowed. It is held that the appellants are entitled to get Rs.13,28,375/- as compensation out of which Rs.6,43,040/- was granted by the Tribunal and the balance amount of Rs.6,85,335/- is granted as enhanced compensation with the same rate of interest awarded by the Tribunal payable by the 3[rd] respondent, Insurance Company. ``` ``` 16.The appellants in M.A.C.A. No.255/2014 valued the claim at Rs.12,00,000/-. In view of grant of Rs.1,28,375/- in excess of the claim, ``` ## **`M.A.C.A Nos.783, 844 of 2013 & 255 of 2014`** **==> picture [13 x 9] intentionally omitted <==** ``` the appellants are bound to deposit additional court fee for the said sum coming to Rs.1,285/-. The Insurance Company is directed to deposit the additional court fee by a separate cheque in favour of M.A.C.T and the remaining amount in the name of the appellants, in the proportion fixed by the Tribunal, within two months from today. ``` ``` 16.The recovery right granted in favour of the 3[rd] respondent by finding violation of policy violations by the Tribunal would apply not only to the amount granted by the Tribunal but to the amount granted under the enhanced heads also. The Insurance Company is allowed to realise the entire amount after depositing the same, in the name of petitioners in the proportion fixed by the Tribunal, as per law along with the same rate of interest awarded by the Tribunal, from the date of petition ``` 15 ## **`M.A.C.A Nos.783, 844 of 2013 & 255 of 2014`** ## `till the date of deposit or realisation.` ``` Thus it is specifically ordered that the Insurance Company is entitled to recover the amount from the insured/owner of the vehicle, inclusive of future interest @ 9% from the date of deposit till the date of realisation or payment and incidental costs incurred thereof. However, it is made clear that the right of recovery granted herein is liable to be revisited by the Tribunal while proceeding with execution proceedings for recovery of the amount, if the driver or the owner of the offending vehicle produce effective Driving Licence to the satisfaction of the Tribunal concerned after notice and providing opportunity of hearing to the counsel for the Insurance Company. On satisfying possession of valid and effective driving licence by the driver of the offending ``` ``` M.A.C.A Nos.783, 844 of 2013 & 255 of 2014 ``` **==> picture [13 x 9] intentionally omitted <==** ``` vehicle, the Tribunal can record the said fact and ignore the recovery hereby granted and close the execution proceedings without proceeding further to recover the amount in . view of this judgment ``` ``` Sd/- ``` ``` A.BADHARUDEEN, JUDGE. ``` ``` ww ```