New India Assurance Company Ltd. v. Moideen and others (MACA Nos. 1786 of 2011 & 1679 of 2012)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY ,THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** ## **M.A.C.A.No. 1786 of 2011** **AGAINST THE AWARD DATED 31-01-2011 IN O.P.(M.V) 1018/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT: 3RD RESPONDENT IN OP (MV) No.1018/07** **THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, VARIKKODAN BUILDING, NILAMBUR ROAD, MANJERI P.O., REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, KADAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM.** **BY ADVS. SRI.LAL GEORGE, SC SMT.M.J.INDUJA** **RESPONDENTS: CLAIMANTS 1 TO 5 AND RESPONDENTS 1 AND 2 IN OP (MV) No. 1018/07** - **1 MOIDEEN, S/O.PAREEKUTTY, ETAYODATH PILAKAL HOUSE, PULPATTA P.O., PIN-678632.** - **2 MYMOONA, W/O.MOIDEEN, ETAYODATH PILAKAL HOUSE, PULPATTA P.O., PIN-678632.** **3 MOHAMED SAFVAN, MINOR 5 YEARS, REPRESENTED BY FATHER MOIDEEN AND NEXT FRIEND GUARDIAN GRANDFATHER MOIDEEN, ETAYODATH PILAKAL HOUSE, PULPATTA P.O., PIN-678632.** - **4 MINHAJ, AGED 3 YEARS, REPRESENTED BY FATHER MOIDEEN AND NEXT FRIEND GUARDIAN GRANDFATHER MOIDEEN, ETAYODATH PILAKAL HOUSE, PULPATTA P.O., PIN-678632.** - **5 SHOJATH, W/O.LATE SHIHABUDDEEN, ETAYODATH PILAKAL HOSUE, PULPATTA P.O., PIN-678632.** MACA Nos. 1786 of 2011 & 1679 of 2012 -2- - **6 ABDULLATHEEF,** **S/O.ABDURAHIMAN, ATHIMANNI HOUSE, P.O.KARUVAMBRAM, MANJERI, MALAPPURAM DISTRICT -676123.** ## **7 MOHAMMED,** **S/O.ALAVI, CHUNDANGA HOUSE, ANAKKAYAM P.O., ERNAD TALUIK, MALAPPURAM DISTRICT-676509.** **BY ADVS. SRI.R.RANJITH (MANJERI)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019, ALONG WITH MACA.1679/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos. 1786 of 2011 & 1679 of 2012 -3- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY ,THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** ## **M.A.C.A.No. 1679 of 2012** **AGAINST THE AWARD DATED 31-01-2011 IN O.P.(M.V) 1018/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANTS/PETITIONERS:** - **1 MOIDEEN, S/O. PAREEKUTTY,** - **2 MYMOONA, W/O.MOIDEEN,** - **3 MOHAMMED SAFVAN. MINOR 5 YEARS,** - **4 MINHAJ.** **AGED 3 YEARS,** **3 AND 4 REP.BY NEXT GUARDIAN GRAND FATER MOIDEEN 1ST APPELLANT/1ST PETITIONER.** - **5 SHOJATH,** **W/O. LATE SHIHABUDDEEN WHO DIED IN ACCIDENT, (ALL ARE RESIDING AT ELAYODATH PILAKAL HOUSE, P.O. PULPATTA, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.M.MOHAMED ABDURAHIMAN THOPPIL** MACA Nos. 1786 of 2011 & 1679 of 2012 -4- ## **RESPONDENTS/RESPONDENTS:** |**1**|**ABDULATHEEF,**| |---|---| ||**S/O. ABDURAHIMAN, ATHIMANNIL HOUSE, P.O.,**| ||**KARUVAMBRAM, MANJERI, MALAPPURAM DISTRICT-676123.**| |**2**|**MOHAMMED,**| ||**S/O.ALAVI, CHUDANGA HOUSE, ANAKKAYAM P.O.,**| ||**ERNAD TALUK, MALAPPURAM DISTRICT.676509.**| |**3**|**THE NEW INDIA ASSURANCE COMPANY LIMITED,**| ||**BRANCH OFFICE, VARIKKODAN BUILDINGS, NILAMBUR ROAD,**| ||**MANUJERI, MALAPPURAM DISTRICT.676505**| **BY ADVS. SRI.C.T.BASHEER SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.LAL GEORGE, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019, ALONG WITH MACA.1786/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos. 1786 of 2011 & 1679 of 2012 -5- ## **JUDGMENT** These appeals arise from O.P.(M.V.)No.1018 of 2007 on the files of the Motor Accidents Claims Tribunal, Manjeri. Among the appeals, M.A.C.A.No.1679 of 2012 is by the claimants in the proceedings and M.A.C.A.No.1786 of 2011 is by the insurer. 2. The predecessor of the claimants Shihabudeen died in a motor accident took place on 18.03.2007 involving an autorikshaw bearing registration No.KL 10 - K 6024 driven and owned by respondents 1 and 2 respectively in the proceedings. The third respondent in the proceedings was the insurer of the said vehicle. Among others, the third respondent contended that they are not liable to indemnify the second respondent as the first respondent was not having the authorisation to drive the transport vehicle involved, at the time of accident. The Tribunal rejected the contention raised by the third respondent and directed them to pay to the claimants the compensation determined as due to them, namely Rs.5,32,000/-. The claimants are aggrieved by the inadequacy of the compensation granted by the Tribunal and the insurer is MACA Nos. 1786 of 2011 & 1679 of 2012 -6- aggrieved by the liability in terms of the award passed by the Tribunal. Hence these appeals. 3. Heard the learned counsel for the claimants and the learned counsel for the insurer. 4. As noted, the deceased was aged 24 years at the time of accident. The deceased was stated to be working as a mason. It was stated by the claimants in the claim petition that the deceased was earning a monthly income of Rs.6,000/-. The Tribunal reckoned the monthly income of the deceased at Rs.3,500/- and worked out the compensation payable for loss of dependency on that basis. The amount of compensation arrived at by the Tribunal under the said head was Rs.5,04,000/-. In addition, the Tribunal has granted a sum of Rs.10,000/- towards loss of love and affection, Rs.10,000/- towards loss of consortium for the wife, Rs.5,000/- towards loss of estate and Rs.3,000/- towards funeral expenses. It is in the aforesaid manner the Tribunal has arrived at the total compensation at Rs.5,32,000/-. According to the learned counsel for the claimants, the compensation granted under all the aforesaid heads is grossly inadequate. 5. As noted, the accident took place on MACA Nos. 1786 of 2011 & 1679 of 2012 -7- ## 18.03.2007. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** , (2011) 13 SCC 236, the Apex Court held, in the case of a person who was unable to prove his income, that his monthly income can be reckoned notionally at Rs.4500/- in the context of an accident took place in the year 2004. In the light of the said judgment, according to me, the income of the deceased in the instant case, in the context of the accident took place on 18.3.2007 can be reckoned at Rs.6,000/- as claimed by the claimants. If compensation payable to the claimants is worked out adding 40% to the said income towards future prospects and deducting one-fourth of the total towards personal expenses, applying the multiplier '18', the compensation payable would come to Rs.13,60,800/-. As the claimants were granted only a sum of Rs.5,04,000/- towards loss of dependency,they are entitled to a further sum of Rs.8,56,800/under the said head. 6. In **National Insurance Company Ltd V. Pranay Sethi** [2017(4) KLT 662 (SC)], it was held that a sum of Rs.70,000/- can be granted under the conventional heads namely loss of consortium, loss of estate and funeral expenses. MACA Nos. 1786 of 2011 & 1679 of 2012 -8- Under the aforesaid heads, the Tribunal has granted only Rs.28,000/-. The claimants are, therefore, entitled to a further sum of Rs.42,000/- under the said heads. Thus, the claimants are entitled to an additional compensation of Rs.8,98,800/- . 7. Coming to the appeal filed by the insurer, as noted, the contention advanced before the Tribunal was that the first respondent was not having the authorisation to drive the transport vehicle involved in the accident namely, the autorickshaw. The said contention, however, was not pressed by the learned counsel, in the light of the decision of the Apex Court in **Mukund Dewangan v. Oriental Insurance Company Limited** [2017(3) KLT 1000(SC)]. Instead, it was contented by the learned counsel that the first respondent was not holding licence to drive the autorickshaw involved in the accident and therefore, they are entitled to realise the compensation directed to be paid to the claimants from the owner, as there was a requirement in terms of the policy conditions that the driver should hold a valid driving licence. In support of the said contention, the learned counsel has placed reliance on the judgment of this court in M.A.C.A.No.2055 of 2011. This being a contention not raised by the insurer in the MACA Nos. 1786 of 2011 & 1679 of 2012 -9- written statement filed before the Tribunal, the same cannot be raised in the appeal, as the Tribunal cannot be found fault with for having not decided a contention which was not raised in the proceedings. In the result, M.A.C.A.No.1786 of 2011 is dismissed and M.A.C.A. No.1679 of 2012 is allowed in part granting a further sum of Rs.8,98,800/- to the claimants by way of compensation. Needless to say, the claimants will be entitled to interest for the additional amount of compensation at the rate of 7.5%. It is, however, made clear that the claimants will not be entitled to interest for the enhanced compensation granted, for the period of delay in fling the appeal, as ordered on 21.8.2012 in C.M.Application No.1985 of 2012. ## **Sd/-** ## **P.B.SURESH KUMAR** ## **JUDGE** vv