P.A. Shahida @ Sini v. John Joseph and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE** **& THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933 MACA.No. 991 of 2009** **-----------------------OPMV.2036/2004 of M.A.C.T.,KOTTAYAM** ## **APPELLANTS/PETITIONERS::** - **-------------------------** **1. P.A.SHAHIDA @ SINI, PUTHENPARAMBIL, KOLLAMPATTADA, KUMILY, IDUKKI DISTRICT.** **2. P.H.ABDUL AZZEZ, PUTHENPARAMBIL, KOLLAMPATTADA, KUMILY, IDUKKI DISTRICT.** **3. NOORJAHAN T.A., PUTHENPARAMBIL, KOLLAMPATTADA, KUMILY, IDUKKI DISTRICT.** **BY ADV. SRI.ROY CHACKO** ## **RESPONDENTS/RESPONDENTS::** - **---------------------------** **1. JOHN JOSEPH, KALAMPUKATTUSSERY, PULIKUTTUSSERY, KOTTAYAM.** **2. RAJAMANI K., XXI WARD, BUS NILAYA STREET LOWER CAMP, THENI, TAMIL NADU.** **3. THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, KOTTAYAM.** **4. SANTHOSH E.T., ELAVUNKAL HOUSE, KOLLAMPATTADA, KUMILY, IDUKKI DISTRICT.** **5. THE SECRETARY, KADUVATHRA PADASEKHARA NELLULPADAKA SAMITI, PULIKUTTISSERY, KOTTAYAM.** **R,R1 BY SRI.MATHEW JOHN (K) R,R1 BY SRI.AJEESH K.SASI R,R5 BY SRI.SUJITH MATHEW JOSE R,R3 BY SRI.GEORGE CHERIAN (THIRUVALLA) R,R2,4 BY SRI.T.A.UNNIKRISHNAN R,R2,4 BY SRI.K.SATHEESH KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** ## **=====================** M.A.C.A. NO. 991 OF 2009 **=====================** Dated this the 1[st] day of February 2012 ## JUDGMENT ## **Pius C.Kuriakose,J.** The legal heirs of a young labourer who died while travelling in the Trailor of a tractor bearing Registration No. KL5E 8679 from Kollampattada to Kumily are aggrieved b y the quantum of compensation awarded by the Tribunal in its award and more so by the decision of the Tribunal to exonerate the third respondent - Insurance Company from the liability on the reason that the policy did not cover the deceased. The application was one under Section 163A of the Motor Vehicles Act and the learned Tribunal would award total amount of Rs.3,40,000/- as dependency compensation and award Rs.2,500/-, Rs.5,000/- and Rs..2500/- respectively towards funeral expenses, towards loss of consortium for the first appellant, the wife of the deceased and towards loss of estate. 2. In this appeal the ground prominently raised is that the Tribunal went wrong in finding that the third respondent Insurance company is not liable to pay the compensation. The MACA 991/2009 -2- other grounds are raised challenging the adequacy of the compensation awarded by the Tribunal particularly the compensation under the head of loss of dependency. 3. We have heard the submissions of Mr. Roy Chacko, learned counsel for the appellant and Shri George Cherian, learned standing counsel for the Insurance company and the standing counsel for the 2[nd] respondent. 4. Shri Roy Chacko would submit that the Tribunal has exonerated the insurance company from the liability mainly on three premises. The first premise was that the Trailor involved in the accident does not come within the purview of a goods vehicle. The second premise was that the driver who was driving the tractor at the time of the accident did not have a valid driving licence. The third premise was that the policy issued by the Insurance Company does not cover a gratuitous passenger like the deceased. All these three premises are wrong premises According to Shri Roy Chacko. Strong reliance was placed on the judgment of the Supreme Court in **Natwar Parikh & Co.Ltd. v. State of Karnataka[2005)7 S.C.C.364** Shri Roy Chacko submitted that it has been very clearly held under paragraph 24 of that judgment that trailor drawn by a motor MACA 991/2009 -3- vehicle will also be a motor vehicle for the purposes of the Karnataka Motor Vehicles Taxation Act which contains provisions in pari materia with the provisions of the Motor Vehicles Act. Shri Roy Chacko also referred to the judgment of a Division Bench of this Court in **Sasi v. Saidali[2006 ACJ 81]** wherein it has been held that trailor attached to a tractor carrying stones will satisfy the definition of goods vehicle. Drawing our attention to Ext.B3 the policy documents, Shri Roy Chacko submitted that General Exception No.4 therein will show that a passenger carried in the tractor in question in pursuance to a contract of employment is also covered by Ext.B3 policy. In this connection Shri Roy Chacko drew our attention to the statement in clause 28 of the original petition filed before the Tribunal which is to the effect that the deceased was travelling in the tractor from Kollampattada to Kumily in connection with the work of the tractor at the direction of respondents 1 and 2. Lastly Shri Roy Chacko submitted that the contention that the driver of the tractor did not have a valid licence for driving the tractor was not pursued by the Insurance company at the time of enquiry. Shri Roy Chacko would assail the quantum of compensation awarded by the Tribunal. According to him, the MACA 991/2009 -4- Tribunal went wrong in adopting the multiplicand correctly for arriving at the loss of dependency. The annual income of the deceased could have been taken very easily to be 36,000/- in which case towards the head of loss of dependency, the appellants will become eligible for an amount of Rs.3,84,000/(5,76,000x2/3). Counsel also submitted that the Tribunal erred in not awarding any compensation for loss of love and affection for the parents who were solely dependents upon the deceased. 5. All the submissions of Mr. Roy Chacko were very stiffly opposed by Sri George Cherian, learned standing counsel for the Insurance Company Mr. George Cherian submitted that judgment of the Supreme Court in **Natwar Parikh & Co.Ltd.'s** case(supra) taking the view that the trailor attached to the tractor is also motor vehicle has been rendered in the context of the Karnataka Motor Vehicle Taxation Act, 1957 wherein under Section 228 of that Act, the expression 'motor vehicle' has been defined in a comprehensive manner as to take in trailor attached to a tractor also. The said definition cannot be imported to the present proceedings where we have to go by the definition given under Section 2 of the Motor Vehciles Act. Mr.George Cherian submitted that even assuming for the sake of argument that the MACA 991/2009 -5- trailor in which the deceased was travelling was a motor vehicle, then also the Insurance company cannot be made liable on the expressed terms of Ext.B3 policy. Drawing our attention to page No.1 of Ext.B3 which deals with the Essential Conditions o of liability and coverage. 6. Mr.George Cheiran submitted that coverage is limited to own premises of the owner of the tractor, the insured. General Exception No.4 can come into play only subject to the essential conditions which controlled the liability. The Insurance company cannot be made liable in the present case where the tractor was travelling from Kollampattada to Kumily far way from the premises of the owner of the tractor. It was submitted by the learned counsel for the first respondent that first respondent would support the submissions of Mr.Roy Chacko in his submissions regarding the liability of the Insurance company. However, he would argue that the quantum of compensation determined by the learned Tribunal is inadequate. He also submitted that first respondent is financially in dire straits. 7. We have given our anxious consideration to the rival submissions addressed at the Bar. We have very carefully gone through the award. We have kept in mind the ratio emerging MACA 991/2009 -6- various decisions cited at the Bar especially the judgment of the Supreme Court in **Natwar Parikh Co.Ltd.'s** case (supra) as well as the judgment of the Division Bench of this Court in **Sasi's case(supra).** As regards the judgments, we may at once advert to the judgment of the Division Bench in **Sasi's case** (supra)and observe that the above decision cannot have any application to the facts in the present case. In **Sasi's case(supra)** the Insurance Company had admitted the liability to the extent of Rs. 50,000/-. It is also seen on reading the judgment that the Tractor involved in that case was a tractor which was being used authorisedly for carrying stones and the person who died was the representative of the owner of the tractor who was admittedly accompanying the goods which were transported. In the present case, the tractor was intended to be used only for agricultural purposes and that too within the own premises of the first respondent as is evident from Ext.B3. The liability of the insurance company is specifically limited to the user of the tractor within the own premises of the user. A small amount of Rs.360.38 alone is collected as premium,in view of the above limitation imposed on the user of the premises to be confined to the own premises of the first respondent . We find force in the MACA 991/2009 -7- submission of Shri George Cherian. That General Exception of 4 highlighted by Shri Roy Chacko can only be subjected to the conditions which regulates the liability of the Insurance company. The question whether the trailor attached to the tractor will be a motor vehicle for the purposes of the Motor Vehicles Act does not arise for decision in this case. We will only observe that the above question may have to be decided in each case on the basis of the facts and circumstances which attended on the given case. 8. In view of our finding that the Insurance company cannot be made liable, the only issue surviving is the correctness of the quantum of compensation. We find force in the submissions of the Roy Chacko that learned Tribunal could have taken the annual income of the deceased to be Rs.36000/-. Going by the 2[nd] schedule attached to Section 163 A, the dependency compensation will have to be refixed at Rs.3,84,000/-. This means that towards dependency compensation, the appellants will become eligible for a further amount of Rs.44,000/-. We award to the appellant the above sum. We are not in a position to award any compensation towards head, loss of love and affection as the application was one filed under Section 163 A of MACA 991/2009 -8- the Motor Vehicles Act. The impugned award stands modified only to the extent on enhancing the total compensation by Rs.44,000/-. In all other respects including the question of liability of the Insurance company, the impugned award shall stand confirmed. The appeal is disposed of as above. ## **Sd/-** **PIUS C.KURIAKOSE, JUDGE** **Sd/A.V.RAMAKRISHNA PILLAI, JUDGE** ## **ks.** **True copy** ## **P.s.To Judge**