National Insurance Company Limited v. Vineetha W/o Sivakumar, Sivakumar, Yash (Minor) represented by his mother Vineetha, Poul Raj

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 12TH DAY OF NOVEMBER 2018 / 21ST KARTHIKA, 1940** **M.A.C.A.No. 1119 of 2016** **AGAINST THE AWARD IN O.P.(M.V.) NO. 1017/2015 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 11-12-2015** ## **APPELLANT/2ND RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED KOZHIKODE NOW REPRESENTED BY ITS ASST. MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI 35.** **BY ADVS.** **SRI.MATHEWS JACOB (SR.), SC SRI.P.JACOB MATHEW, SC** ## **RESPONDENT/PETITIONRES AND 1ST RESPONDENT:** - **1 VINEETHA W/O.SIVAKUMAR, DR.AMBEDKAR COLONY, NEAR GANDHI ASRAMAM, MALAPARAMBA P.O, KOZHIKODE 673 009.** - **2 SIVAKUMAR** **S/O.POUL RAJ,DR.AMBEDKAR COLONY, NEAR GANDHI ASRAMAM, MALAPARAMBA P.O., KOZHIKODE 673 009.** - **3 YASH (MINOR) DR.AMBEDKAR COLONY, NEAR GANDHI ASRAMAM, MALAPARAMBA P.O., KOZHIKODE 673 009 REPRESENTED BY HIS MOTHER 1ST RESPONDENT.** - **4 POUL RAJ S/O.MARIYANANDAM, 12/2424, SANTHI HOUSE, KANNEERIPARAMBA, MALAPARAMBA P.O., KOZHIKODE 673 009.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 1119 of 2016** **2** ## **JUDGMENT** This appeal is filed by the insurer of a motorcycle bearing registration No. KL-11-AR-8435, the offending vehicle which caused the accident. 2. The facts of the case in brief are to the following effect: At about 8.15 p.m on 06.01.2015, a minor boy namely Shan.S aged 9 years, travelling as pillion rider in a motorcycle bearing registration No.KL-11-AR-8435 from Malaparamba to Eranhipalam, was thrown away therefrom, while overtaking a lorry bearing registration No.KA-21-A-7769 by its rider. The boy was thrown down from the motorcycle and was run over by the lorry. He had sustained fatal injuries. Though rushed to Medical College Hospital, Kozhikode for treatment, he succumbed to the injuries on the way. Alleging that the driver of the lorry was responsible for causing the accident by his rash and negligent driving and claiming for a sum of Rs.10,00,000/- as compensation, the claim petition as O.P.(M.V.) No.1017 of 2015 **M.A.C.A.No. 1119 of 2016** **3** was moved before the Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) by the parents and sibling of the deceased. The owner cum rider and insurer of the motor cycle involved in the accident were arrayed respectively as respondents 1 and 2 in the claim petition. 3. The first respondent has filed written statement before the Tribunal admitting the accident but denying negligence on his part towards the accident. It was contended by the first respondent that the accident was occurred due to rash and negligent driving of the lorry bearing registration No. KA-21A7769 by its driver. The insurance coverage of the Motorcycle with the second respondent at the relevant time was admitted. The second respondent had also filed written statement before the Tribunal admitting insurance coverage of the motorcycle bearing registration No.KL-11-AR-8435. Holding of driving licence by the first respondent and negligence on his part to cause the accident were denied. It is also stated that the rider of the motorcycle was charge sheeted by the Police for offence punishable under Section 3(1) read with 181 of the Motor Vehicles Act. **M.A.C.A.No. 1119 of 2016** **4** 4. The petitioners had adduced documentary evidence before the Tribunal and those include Exts.A1 to A8. On the side of respondents, two documents were marked as Exts.B1 and B2. On appreciation of evidence as aforesaid, the Tribunal has arrived at a finding that the accident was occurred due to negligence of first respondent, who is none other than the owner cum rider of the motorcycle bearing registration No.KL-11-AR-8435. The Tribunal has also arrived at a sum of Rs.6,55,000/- as compensation in favour of petitioners by the award under challenge and directed the insurer to compensate the petitioners. Aggrieved by the aforesaid award, the captioned appeal was preferred by the insurer. 5. Sri. Mathews Jacob, the learned Standing Counsel for the 2[nd] respondent has contended that the award under challenge will not sustain for two reasons. According to him, the quantum of compensation awarded is exorbitant and a modification is required to make it a reasonable sum. Secondly it is contended by the learned Standing Counsel that despite raising contention that the rider of the motor cycle was not holding valid driving **M.A.C.A.No. 1119 of 2016** **5** licence and adducing evidence in that respect, the Tribunal failed to advert to those and thereby declined to grant right to the 2[nd] respondent to recover the compensation amount from the 1[st] respondent, after deposting the same in favour of petitioners. It is specifically contended by the learned Senior Counsel that the sum awarded as compensation under the head funeral expenses is on the higher side in view of the decision of the constitution bench of the Apex court in _**National Insurance Company Limited v. Pranay Sethi [2017 (4) KLT 662 (SC)]**_ . According to him, as per the decision cited supra only a sum of Rs.15,000/is payable under the head funeral expenses. 6. The contention secondly advanced was with regard to the exorbitance of the sum awarded as compensation under the head loss of love and affection. According to the learned Standing Counsel, Rs.3,00,000/- was awarded by the Tribunal by granting Rs.1,00,000/- each to petitioners 1 to 3. According to him, the Tribunal is unjustified in granting such a huge sum as compensation under the head and interference is needed to make it reasonable. **M.A.C.A.No. 1119 of 2016** **6** 7. This Court is convinced on a perusal of the impugned award that Rs.1,00,000/- each has been awarded by the Tribunal under the head loss of love and affection to petitioners 1 to 3. The petitioners include the parents and sibling of the deceased. The sibling is a minor boy aged 8 years. There cannot be any dispute that love and affection is lost to petitioners 1 and 2 with the loss of their son aged 9 years and the 3[rd] petitioner with the loss of an elder brother. However, Rs.1,00,000/- awarded by the Tribunal to each of them under the head appears to this Court unjust and unreasonable and therefore is inclined to reduce the same to Rs.2,00,000/-. Thus, there will be a reduction of Rs.1,00,000/- from the compensation arrived at by the Tribunal as payable to the petitioners by the impugned award. There is merit in the contention advanced by the learned counsel that Rs.25,000/- awarded by the Tribunal under the head funeral expenses is an excess sum and therefore this Court is inclined to modify the same by reducing Rs.10,000/- therefrom to make it in tune with the direction in **Pranay Sethi** 's case (supra). **M.A.C.A.No. 1119 of 2016** **7** 8. A sum of Rs.1,00,000/- was awarded by the Tribunal under the head loss of companionship and guidance to petitioner No.3, the sibling of the deceased. According to the learned Senior Counsel, such a practice is not in vogue and the Tribunal is unjustified in doing so. Thus, he seeks for setting aside the grant of compensation under the said head. In **Magma General Insurance Co. Ltd v. Nanu Ram Alias Chuhru Ram & Ors.** [2018 (11) SCALE 247] the Apex court has dealt with the grant of compensation under the head filial consortium to parents who lost their only son. Since the deceased being the elder brother of the 3[rd] petitioner, had he been alive, he will be a company and guide for him. Therefore, there is nothing wrong in granting compensation under the head filial consortium. However, the grant of compensation of Rs.1,00,000/- under the head appears to this Court a higher sum. To make the compensation reasonable, Rs.25,000/- is deducted from Rs.1,00,000/- already awarded by the Tribunal under the impugned award. In re-fixation of compensation as above, a total sum of Rs.1,35,000/-(10,000 + 1,00,000 + 25,000) is liable to be **M.A.C.A.No. 1119 of 2016** **8** deducted from Rs.6,55,000/-, awarded by the Tribunal as per the impugned award. 9. Coming to the second contention advanced by the learned Standing Counsel, the rider of the motorcycle is very much a party to the claim petition as the 1[st] respondent. It is relevant to notice that steps have been taken against the 1[st] respondent and direction issued to him for production of the driving licence possessed by him. The 1[st] respondent entered appearance and has filed written statement. But, he has not produced the driving licence held by him. Therefore it has come out in evidence that 1[st] respondent was not holding valid driving licence to ride the motor cycle at the relevant time of accident. Therefore, as rightly contended by the learned Standing Counsel, the appellant/insurer is entitled to recover the compensation amount from the 1[st] respondent, the owner cum rider of the motorcycle. Tribunal had discussed the above aspect in paragraph 8 of the impugned award. The Tribunal had also found the 2[nd] respondent insurer entitled to recover the compensation from the 1[st] respondent after paying it in favour of the petitioners. But it failed to direct **M.A.C.A.No. 1119 of 2016** **9** recovery of the amount by the 2[nd] respondent from the 1[st] respondent in the decreetal part of the award. This can only be treated as an omission of the Tribunal in oversight and this Court is inclined to correct it. In the result, the appeal is allowed. The petitioners are found entitled to get a sum of Rs.5,20,000/- (Rupees Five lakhs twenty thousand only) (6,55,000 - 1,35,000). The said amount will carry interest at the rate as directed by the Tribunal in the impugned award. The appellant (the 2[nd] respondent before the Tribunal) is entitled to get the compensation recovered from the 4[th] respondent in this appeal (1[st] respondent before the Tribunal) after depositing the same in favour of petitioners. No order as to costs. **Sd/MARY JOSEPH** **JUDGE** NAB