High Court of KeralaDivision Bench2015-02-19Appeal disposed of. Enhanced total compensation...

P. Usha and others v. N. Ramakrishnan Nair and Others

Case / Petition Number:MACA No.1118/2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T. R. Ramachandran Nair
P. V. Asha
Judgment Date: 2015-02-19
Court Decision / Holding: The appeal is disposed of. The policy being liability-only, the insurer is not liable for extra loading or coverage beyond basic liability. The Tribunal is remanded to reconsider liability, especially in light of vehicle transfers, and to determine who is liable to satisfy the enhanced award. The enhanced total compensation is fixed at Rs. 9,12,500 with interest at 9% per annum from the date of award. The Tribunal may implead the legal heirs of the deceased if required. Costs of the appeal are to be borne by the parties.
Final Disposition: Appeal disposed of. Enhanced total compensation fixed at Rs. 9,12,500; remanded to Tribunal to decide liability with regard to vehicle transfers; enhanced award to carry 9% interest; opportunity to implead legal heirs; costs to be borne by the parties.

Parties to the Case

Appellants / Petitioners

P. Usha W/o Deceased P. Ramachandran Nair, TC.6/2021(1) Kunnull? Puthen Veedu, Karumankulam Vattiyoorkavu P.O., Thiruvananthapuram
R. Rakesh Chandran S/O Deceased P. Ramachandran Nair, TC.6/2021(1) Kunnull? Puthen Veedu, Karumankulam Vattiyoorkavu P.O., Thiruvananthapuram
K. Parukutty Amma M/O Deceased P. Ramachandran Nair, TC.6/2021(1) Kunnull? Puthen Veedu, Karumankulam Vattiyoorkavu P.O., Thiruvananthapuram

Respondents

N. Ramakrishnan Nair S/O U Narayana Nair, Priya Nivas, 14/601 Ookkode, Ookkode P.O., Thiruvananthapuram
The Oriental Insurance Co. Ltd. Divisional Office, Thiruvananthapuram represented by its Divisional Manager
K. P. Sivadasan S/O Padmanabhan, Vinod Bhavan, Killikolloor Kollam
The New India Assurance Co. Ltd. Divisional Office, Thiruvananthapuram represented by its Divisional Manager

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri Ajith Krishnan

Counsels for Respondents

• Adv. Sri George Cherian (Thiruvalla)
• Adv. Sri KKM. Sherif
• Adv. Sri Lal K. Joseph
• Adv. Sri A. A. Ziyad Rahman
• Adv. Sri K. T. Shyamkumar
• Adv. Sri G. Sudheer

Case Synopsis & Summary

This Motor Accident Claims Appeal arises from an award under the Motor Vehicles Act concerning the death of P. Ramachandran Nair, an autorickshaw driver who died following a 2006 accident near Chathannoor on the Thiruvananthapuram-Kollam National Highway. The Tribunal awarded 4,12,500 to the claimants under various heads including transportation, funeral expenses, damages to clothing, pain and suffering, and dependency loss. The appellants challenged both quantum and policy coverage. The insurer contended the policy is a liability-only policy; basic liability premium is 700, PA is 100, with a fixed extra loading of 210, argued as a non-premium charge, while the appellants contended extra loading should be covered. The High Court held the policy is liability-only and the insurer is not liable for extras. On quantum, the court re-evaluated dependency using a monthly income of 6,000 (citing Minu Rout v. Satya Pradyumna Mohapatra and others, SC 2013) and applied a multiplier of 13, increasing the dependency loss to 6,24,000. Funeral expenses were enhanced from 5,000 to 25,000; loss of love and affection and loss of consortium were both fixed at 1,00,000 each; estate loss at 50,000, with a total award of 9,12,500. The court held the first insured owner liable but remanded liability determination to the Tribunal due to vehicle transfers, with enhanced compensation carrying 9% interest. The appeal was disposed of with costs, and the Tribunal may implead legal heirs of the deceased.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants challenged both the quantum and the coverage under the policy. The policy is admitted as a 'Liability Only Policy'. Basic liability premium is Rs.700, PA is Rs.100, legal liability of the driver Rs.25, and extra loading Rs.210. The appellants argued that the amount representing extra loading should be considered as coverage in cases like the present one, i.e., as an additional premium; however, the insurer maintained that extra loading is a fixed charge not to be treated as premium. On quantum, the appellants urged higher compensation under heads such as loss of dependency, funeral expenses, and non-pecuniary damages, while relying on judicial precedents for appropriate amounts.

Contentions of Respondents

The respondents contended that the policy is liability-only and the insurer cannot be held liable for coverage beyond basic liability. They argued that the vehicle was transferred during pendency and that liability should be fixed on the person who held ownership and possession at the relevant time; the Tribunal’s enhanced amount should be guided by policy terms and relevant case law, and liability should be determined by the Tribunal upon remand, considering the transfers.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Rajesh v. Rajbir Singh	2013 (3) KLT 89 (SC)	Positive	Cited to support awarding substantial non-pecuniary damages for loss of love and affection and to justify dependency-related enhancements.
Minu Rout and another v. Satya Pradyumna Mohapatra and others	2013 (10) SCC 695	Positive	Cited for adopting a monthly income of 6,000 for a driver in 2005-06, influencing calculation of loss of dependency.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **& THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 19TH DAY OF FEBRUARY 2015/30TH MAGHA, 1936** **MACA.No. 1118 of 2012 () -------------------------** **AGAINST THE AWARD IN OPMV 1456/2006 of MACT,TRIVANDRUM DATED 0905-2012** ## **APPELLANTS/PETITIONER:** **----------------------------------------------** **1. P.USHA W/O.DECEASED P.RAMACHANDRAN NAIR, TC.6/2021(1) KUNNATHU MELE PUTHEN VEEDU, KARUMANKULAM VATTIYOORKAVU P.O., THIRUVANANTHAPURAM.** **2. R.RAKESH CHANDRAN S/O.DECEASED P.RAMACHANDRAN NAIR, T.C.6/2021(1) KUNNATHU MELE PUTHEN VEEDU, KARUMANKULAM VATTIYOORKAVU P.O., THIRUVANANTHAPURAM.** **3. K.PARUKUTTY AMMA M/O.DECEASED P.RAMACHANDRAN NAIR, T.C.6/2021(1) KUNNATHU MELE PUTHEN VEEDU, KARUMANKULAM VATTIYOORKAVU P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.AJITH KRISHNAN** ## **RESPONDENTS/RESPONDENTS:** **----------------------------** **1. N.RAMAKRISHNAN NAIR S/O.U.NARAYANA NAIR, PRIYA NIVAS, 14/601 OOKKODE, OOKKODE P.O., THIRUVANANTHAPURAM.** **2. THE ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, THIRUVANANTHAPURAM REPRESENTED BY ITS DIVISIONAL MANAGER.** **3. K.P.SIVADASAN S/O.PADMANABHAN, VINOD BHAVAN, KILLIKOLLOOR KOLLAM.** **4. THE NEW INDIA ASSURANCE CO.LTD. DIVISIONAL OFFICE, THIRUVANANTHAPURAM REPRESENTED BY ITS DIVISINAL MANAGER.** **MACA NO.1118/2012** **2** **S/O.SHAHUL HAMEED, BISMI FRESH HALAL CHICKEN THOPPUMUKKU, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM.** **R2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) R4 BY ADV. SRI.KKM.SHERIF R4 BY ADV. SRI.LAL K.JOSEPH R4 BY ADV. SRI.A.A.ZIYAD RAHMAN R1 BY ADV. SRI.K.T.SHYAMKUMAR R5 BY ADV. SRI.G.SUDHEER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1118 OF 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of February, 2015 ## **JUDGMENT** ## Ramachandran Nair, J. The claimants are the appellants herein and amount of compensation claimed is consequent on the death of late Sri.P.Ramachandran, who was an autorickshaw driver. The death occurred after he was involved in an accident which took place on 23/02/2006 at about 8.30 p.m. He was travelling in a Mahindra jeep bearing Reg.No. KBT-5237 through Thiruvananthapuram-Kollam National Highway towards Kollam. When it reached near Chathannoor, it hit against a motor cycle bearing Reg.No.KL-2-U7004, which was coming from the opposite direction. The jeep further proceeded and hit against a goods autorickshaw bearing Reg.No.KL02-T-6757 which was coming from the opposite direction. The jeep capsized and the deceased was thrown out of the jeep and sustained very serious injuries. He died on 25.2.2006 while undergoing MACA No.1118/2012 2 treatment in the Medical College Hospital, Thiruvananthapuram. 2. The registered owner of the vehicle, the first respondent is found liable to meet the liability as the policy was only a 'Liability Only Policy'. A total compensation of `4,12,500/- has been granted by the Tribunal. 3. The learned counsel for the appellant raised two contentions. One is regarding the quantum and the other relating to the coverage under the policy. The Insurance Company has filed an affidavit producing Annexure 1, copy of the policy. It is a 'Liability Only Policy'. Going by the same, for basic liability, ` 700/- has been paid as premium. The premium paid under other heads namely PA ( Personal Accident) is `100/- . The legal liability of driver is `25 and for any extra loading it is `210/-. 4. The argument built up by the learned counsel for the appellants is that the amount representing extra loading is for coverage in a case like the one herein. The learned Senior counsel for the Insurance Company explained that the same is not premium amount obviously. The amount representing extra loading is fixed and MACA No.1118/2012 3 collected by the Insurance Company in the light of the fact that the owner might have availed claims during the previous year. 5. On a perusal of the policy, we find no reason to disagree with the contention raised by the Insurance Company. Therefore the policy being a liability only policy, the company will not be liable. 6. As far as the quantum of compensation is concerned, the Tribunal has granted compensation going by the table given below under different heads : |**_Head of claim_**|**_Amount Awarded in_** **_rupees_**| |---|---| |Transportation to hospital|3000| |Funeral expenses|5000| |Damage to clothing and other articles|500| |Pain and suffering|10000| |Compensation for premature death, loss of consortium of wife, loss of love and affection to dependent son and mother|30000| |Loss of dependency|364000| |Total|412500| MACA No.1118/2012 4 7. The deceased was treated for three days after which he died. The Tribunal has granted `10,000/- towards compensation for pain and suffering, which is justified. But as far as funeral expenses is concerned, `5,000/- alone has been granted which we enhance to `25,000/-. For loss of consortium of wife and loss of love and affection of the dependent son and the mother of the deceased, we grant @ `100,000/- in the light of the judgment in **Rajesh v.Rajbir** . **Singh ( 2013 (3) KLT 89 (SC)** For loss of estate, nothing has been granted by the Tribunal. We grant an amount of `50,000/- under the said head. 8. The deceased was aged 48 at the time of the accident and the multiplier fixed is 13. The driving licence of the deceased has been produced as Ext.A7. Even though documentary evidence is not there with regard to the monthly income, in the light of the fact that he was a skilled driver, it will be only reasonable to fix `6,000/- as the monthly income since the accident is of the year 2006 and we also rely upon the judgment of the Apex Court in **Minu Rout and another v. Satya** MACA No.1118/2012 5 **Pradyumna Mohapatra and others** ( **2013 (10)SCC 695)** , where the Apex Court has adopted `6,000/- as the monthly income of the driver in an accident which occurred in the year 2005. It was held that the Tribunal and the Courts should take judicial notice of the fact that the driver is having a skilled job. Therefore, the compensation towards loss of dependency is recomputed as `6,24,000/- ( 6000 x 12 x 13 x 2/3). 9. Accordingly the total compensation will be as follows : |**_Head of claim_**|**_Amount Awarded in_** **_rupees_**| |---|---| |Transportation to hospital|3000| |Funeral expenses|25000| |Damage to clothing and other articles|500| |Pain and suffering|10000| |Loss of love and affection|100000| |Loss of consortium|100000| |Loss of estate|50000| |Loss of dependency|624000| |Total|912500 (Nine lakhs twelve thousand five hundred only)| MACA No.1118/2012 6 10. As regards the liability of the first respondent, we have heard the learned counsel for the first respondent and the learned counsel for the fifth respondent. It is submitted by the learned counsel for the above respondents that the vehicle was actually transferred by the first respondent to the fifth respondent who in turn transferred it to the sixth respondent before the Tribunal. But during the pendency of the matter before the Tribunal, he died. He was impleaded in the light of the contention raised by the first respondent. It is submitted that his legal heirs were not impleaded before the Tribunal. According to the learned counsel for the first respondent as the vehicle has already been transferred and possession was also with the sixth respondent, no liability can be fastened on the first respondent. The same is the argument raised by the learned counsel for the fifth respondent also. 11. The learned counsel therefore seeks for a remand of the matter to consider the same. As far as the appellants are concerned, for recovering the amount, the liability of the person who was having ownership and possession of the vehicle has to be fixed . The first respondent was found liable since he was the registered owner. MACA No.1118/2012 7 Therefore for the limited purpose, we remand the matter for consideration by the Tribunal and as regards the total compensation allowed, the same will be at the rate as we now fixed. The enhanced compensation will carry interest @ 9% per annum. Appropriate decision will be taken by the Tribunal as regards the person who is liable to satisfy the award. All the parties are given opportunity to adduce evidence. It is open to the appellants to implead the legal heirs of deceased sixth respondent before the Tribunal. The appeal is accordingly disposed of. The parties shall bear their costs in the appeal. ## **T.R.RAMACHANDRAN NAIR, JUDGE** ## **P.V.ASHA, JUDGE** sv.