Philip Joseph & Leelamma Philip v. Thirumalai Kumar P.S., Hemamanlini, National Insurance Company Ltd., Renjith Philip, Reliance General Insurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 MACA NO. 831 OF 2013`** ``` AGAINSTTHEAWARDDATED17.10.2012INOPMVNO.353OF2008& ORDERDATED31.01.2013INI.A.No.4484/2012INOP(MV) No.353/2008OFMOTORSACCIDENTSCLAIMSTRIBUNAL,MANJERI& ``` ## **`APPELLANTS/PETITIONERS:`** ## **`1 PHILIP JOSEPH`** ``` S/O.JOSEPH,ERUPPAKKATTUHOUSE, ARIVILANJPOYILP.O.,ALLAKKODEAMSOM, DESOM,KANNURDISTRICT,NOWRESIDINGAT NELLIKKATTUTHODIHOUSE,KALLEMPADAM, NILAMBURP.O.,MALAPPURAMDISTRICT. ``` ## **`2 LEELAMMA PHILIP`** ``` W/O.PHILIPJOSEPH,ERUPPAKKATTUHOUSE, ARIVILANJPOYILP.O.,ALLAKKODEAMSOM, DESOM,KANNURDISTRICT,NOWRESIDINGAT NELLIKKATTUTHODIHOUSE,KALLEMPADAM, NILAMBURP.O.,MALAPPURAMDISTRICT. ``` ``` BYADVS. ``` ``` SRI.K.M.SATHYANATHAMENON SMT.KAVERYSTHAMPI ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 THIRUMALAIKUMAR .P S/O. PALANIVEL SWAMY, 99, 1ST STREET, KESAVAPURAM, PULIYARAI, SHEWCOTTAI, TAMIL NADU.`** - **`2 K.S.HEMAMANLINI W/O. H.MAHADEVAN, SAROJ NIVAS, PUDIYA ROAD J.N.(P.O.), IRUMPANAM DISTRICT, TAMIL NADU STATE.`** - **`3 NATIONAL INSURANCE COMPANY LTD. BRANCH OFFICE, KORAMBAYIL ARCADE, PANDIKKAD ROAD, MANJERI P.O., MALAPPURAM DISTRICT-676 121.`** MACA No.831 of 2013 2 ## **`4 RENJITH PHILIP`** ``` S/O.PHILIPJOSEPH,ERUPPAKKATTUHOUSE, ARIVILANJPOYILP.O.,ALLAKKODEAMSOM, DESOM,KANNURDISTRICT-670571. ``` - **`5 RELIANCE GENERAL INSURANCE COMPANY LTD. XL/3599, 4TH FLOOR, ELIZABETH ALEXANDER MEM. BUILDING, SHANMUGHAM ROAD, MARINE DRIVE, KOCHI-682 036.`** ``` R3BYSMT.DEEPAGEORGE,SC. ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD ON04.06.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` MACA No.831 of 2013 3 ## **J U D G M E N T** The claimants in OP(MV) No.353 of 2008 on the file of Motor Accidents Claims Tribunal, Manjeri filed this appeal challenging the award on the ground of inadequacy of compensation, as well as challenging the order in I.A No.4484 of 2012, by which the review petition filed by the 5[th] respondent/insurer was allowed exonerating them from compensating the appellants. 2. One Mr.Sreejith Philip, son of the appellants, died in a road traffic accident occurred on 29.06.2007 at 3 a.m. While he was driving KL-59/172 TATA India car from Kannur to Thrissur, KL-7/AL 9462 Tanker lorry driven by the 1[st] respondent in a rash and negligent manner dashed against his car, and he sustained serious injuries and died on the spot. He was a 31 year old Yoga Therapist in Moscow, earning monthly income of Rs.1,50,000/-. His parents approached the Tribunal claiming compensation of Rs.4 lakh and learned Tribunal awarded Rs.2,07,000/-, and directed the 3[rd] respondent/insurer of the tanker lorry and 5[th] respondent/insurer of the TATA India car to share the liability equally. So, 50% of the compensation amount was to be paid by the 3[rd] respondent/insurer of the tanker lorry and remaining 50% by the 5[th] respondent/insurer of the TATA India car. MACA No.831 of 2013 4 3. The 5[th] respondent/insurer of the TATA India car filed I.A No.4484 of 2012 to exonerate them from the liability to pay 50% of the compensation amount, as they had no liability to compensate the legal heirs of the driver of the TATA India car, who contributed equally towards the accident. Learned Tribunal allowed that application, and exonerated them from making 50% of the compensation amount to the appellants/claimants. Challenging the award as well as the order in I.A No.4484 of 2012, the claimants have come up with this appeal. 4. In the appeal, the 3[rd] respondent/insurer of the tanker lorry entered appearance and admitted the policy of the tanker lorry as on the date of accident. They have no dispute with respect to the compensation awarded by the Tribunal, making them liable to pay 50% of the award amount. 5. Now this Court is called upon to find out whether there is any illegality, irregularity or impropriety in the Award of the Tribunal as well as in the order in I.A No.4484 of 2012, warranting interference by this Court. 6. Heard learned counsel for the appellants and learned counsel for the 3[rd] respondent/insurer of the tanker lorry. 7. Though the appellants were claiming in the claim petition that MACA No.831 of 2013 5 the deceased was a passenger in the TATA Indica car involved in the accident, it has come out in evidence that, the deceased was actually driving the car at the time of accident. Exts.B1 and B2, copy of A charge and B charge, will show that the driver of the car as well as the driver of the tanker lorry contributed equally towards the accident, and no contra evidence is forthcoming to rebut the findings in Exts.B1 and B2. So, learned Tribunal found that, both R3 and R5, the insurer of the tanker lorry as well as of the TATA India car, were equally liable to compensate the legal heirs of the deceased and the liability was apportioned among them, equally. But, in the review petition, learned Tribunal found that the deceased driver of the TATA India car contributed equally towards the accident and he actually stepped into the shoes of the owner of the car, and so the insurer of that car was not liable to compensate his legal heirs, even to the extent of 50%. 8. Learned counsel for the 3[rd] respondent, relying on the decision **Jiljet and another v. Stamphen George and others** [2018 (5) KHC 206], argued that, when a person driving the vehicle gets himself injured, the insurer is not liable to compensate him as he will not come under the definition of a 3[rd] party. In a case of comprehensive policy also, where no wider coverage is provided in MACA No.831 of 2013 6 respect of the rider, by paying any additional premium, then also the insurer is not liable to compensate the rider. 9. Based on the law declared by the Apex Court in **Ningamma and another v. United India Insurance Company Ltd** [2009 KHC 5046], this Court held that the rider who rides the motorcycle after borrowing it from the insured will step into the shoes of the insured. What is required to be insured mandatorily as per Section 147 of the Motor Vehicles Act is the liability towards 3[rd] party and the insured/person riding the motorcycle, will not be a 3[rd] party. If at all anybody else is to be covered, particularly the insured (whose liability towards 3[rd] party is agreed to be satisfied by the insurer), wider coverage has to be obtained by paying additional premium. There is no concept of owner/insured becoming liable to pay compensation to himself under any circumstances and as such no liability can be shifted to the shoulders of the insured. 10. Based on the principles laid down in _Ningamma’s case_ , which was followed by this Court in _Jiljet’s case_ cited supra, the driver of the car who stepped into the shoes of the owner of the car was not liable to be compensated by the insurer of the car, as he will not come under the definition of a 3[rd] party. Policy certificate of the car was not MACA No.831 of 2013 7 produced to show that it was a comprehensive policy with wider coverage covering the insured/driver by paying any additional premium. So, this Court finds no illegality or irregularity in the order of the learned Tribunal in I.A No.4484 of 2012, exonerating the 5[th] respondent/insurer of the car from, making compensation to the appellants. 11. Now coming to the quantum dispute, learned counsel for the appellants would submit that, the deceased Sreejith Philip was a 31 year old Yoga Therapist in Moscow, earning monthly income of Rs.1,50,000/-. In the absence of any evidence to prove his monthly income, learned Tribunal fixed his notional income @ Rs.3,500/-. 12. Relying on the decision _**Ramchandrappa**_ vs. _**Manager, Royal Sundaram Alliance Insurance Company Limited**_ (AIR 2011 SC 2951), learned counsel for the appellants would submit that, in the year 2007, even a coolie worker was entitled to get his notional income fixed @ Rs.6,000/-. Even in the absence of any evidence to prove monthly income of the deceased, based on _Ramchandrappa’s case_ cited supra, this Court is inclined to fix his notional income as Rs.6,000/-. Since he was aged below 40, 40% addition could have been given towards future prospects and so, his income could have MACA No.831 of 2013 8 been fixed as Rs.8,400/- (6000+40%). Since he was a bachelor, 50% was liable to be deducted towards his personal expenses. So, the balance income would be Rs.4,200/-. The multiplier applicable was 16, as he was aged 31. So, the compensation for loss of dependency could have been assessed as Rs.8,06,400/- (4200x12x16). After deducting Rs.1,89,000/- already awarded by the Tribunal, appellants are entitled to get the balance Rs.6,17,400/-under the head loss of dependency. 13. Towards transportation expenses, though the appellants claimed Rs.10,000/-, no amount was awarded by the Tribunal. Immediately after the accident, the deceased was taken to hospital and on his death, his body was taken to his house at Kannur. So, this Court is inclined to award Rs.3,000/- towards transportation expenses. 14. Towards damage to clothing also, no amount was given by the Tribunal. So, this Court is inclined to award Rs.500/- under that head. 15. Towards loss of consortium, the appellants, who are the parents of the deceased, are entitled to get Rs.40,000/- each based on the decision **National Insurance Company Ltd. v. Pranay Sethi and others, [(2017) 16 SCC 680]** . Learned Tribunal MACA No.831 of 2013 9 awarded Rs.10,000/- only under the head loss of love and affection. After deducting that amount, the appellants are entitled to get Rs.70,000/- as compensation under the head loss of consortium. 16. Towards loss of estate, learned Tribunal awarded only Rs.5,000/-. Based on _Pranay Sethi’s case_ cited supra, the appellants are entitled to get Rs.15,000/-. So, the balance amount entitled will come to Rs.10,000/-. 17. For funeral expenses also, the amount awarded by the Tribunal i.e. Rs.3,000/- is on the lower side. Based on _Pranay Sethi’s case,_ the appellants are entitled to get Rs.15,000/-. So, the balance amount entitled will come to Rs.12,000/-. |**Head of claim**<br>**(1)**|**Amount**<br>**awarded by the**<br>**Tribunal**<br>**(2)**|**Amount**<br>**awarded in**<br>**appeal**<br>**(3)**|**Difference to**<br>**be drawn as**<br>**enhanced**<br>**compensation**<br>**(4)**| |---|---|---|---| |Loss of dependency|Rs.1,89,000/-|Rs.8,06,400/-|Rs.6,17,400/-| |Transportation<br>expenses|-|Rs.3,000/-|Rs.3,000/-| |Damage to clothing|-|Rs.500/-|Rs.500/-| |Loss of love and<br>affection/ loss of<br>consortium|Rs.10,000/-|Rs.80,000/-|Rs.70,000/-| |Loss of estate|Rs.5,000/-|Rs.15,000/-|Rs.10,000/-| |Funeral expenses|Rs.3,000/-|Rs.15,000/-|Rs.12,000/-| |**Total**|**Rs.2,07,000/-**|**Rs.9,19,900/-**|**Rs.7,12,900/-**| MACA No.831 of 2013 10 18. In the result, the appellants are entitled to get Rs.7,12,900/(Rupees Seven lakh twelve thousand nine hundred only) as enhanced compensation. But, they are entitled to get only 50% of that amount, as the deceased contributed equally towards the accident. So, they are entitled to get Rs.3,56,450/- (Rupees Three lakh fifty six thousand four hundred and fifty only) as enhanced compensation, and the 3[rd] respondent/insurer of the tanker lorry is liable for the same. The 3[rd] respondent-National Insurance Company Ltd, the insurer of the tanker lorry, is directed to deposit the enhanced compensation of Rs.3,56,450/- (Rupees Three lakh fifty six thousand four hundred and fifty only) with interest @ 9% per annum from the date of petition till the date of deposit before the Motor Accidents Claims Tribunal, Manjeri, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to appellants 1 and 2 in equal share, after deducting the liabilities, if any, towards Tax, balance court fee and legal benefit fund. The appeal is allowed to the extent as above with proportionate cost. Sd/- **SOPHY THOMAS JUDGE** smp