Radha, Ranjini, Rajeevan and Reshma v. Hamza K.K., Rasheed and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 17[TH] DAY OF DECEMBER 2021/26TH AGRAHAYANA, 1943** **MACA NO. 741 OF 2013** **AGAINST THE AWARD IN OPMV 65/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA** ## **APPELLANTS/PETITIONERS 1 TO 3 & 5S:** 1 RADHA, WIFE OF NANU, RESIDING AT KUNNUMMAL HOUSE, POST IRINGAL, VIA MELADI, KOZHIKODE - 673 521. 2 RANJINI, DAUGHTER OF NANU RESIDING AT KUNNUMMAL HOUSE, POST IRINGAL, VIA MELADI, KOZHIKODE - 673 521. 3 RAJEEVAN, SON OF NANU RESIDING AT KUNNUMMAL HOUSE, POST IRINGAL, VIA MELADI, KOZHIKODE - 673 521. 4 REHANA, DAUGHTER OF NANU RESIDING AT KUNNUMMAL HOUSE, POST IRINGAL, VIA MELADI, KOZHIKODE - 673 521. BY ADV SRI.JACOB ABRAHAM ## **RESPONDENTS/RESPONDENTS 1 TO 3 & THE 4TH PETITIONER:** 1 HAMZA K.K. KATTUKANDY HOUSE, POST KIZHUR, VIA MELADI, KOZHIKODE - 673 521. 2 RASHEED, SON OF ABOOBACKER K.K. KUMMUTTIKUNI HOUSE, POST MEEDADI, KOZHIKODE - 673 325. 3 THE ORIENTAL INSURANCE CO. LTD. SREENIDHI BUILDING, P.B NO.27, NARAYANA NAGAR, VATAKARA- 673 101. M.A.C.A.No.741 of 2013 2 4 RESHMA DAUGHTER OF NANU, RESIDING AT KUNNUMMAL HOUSE, POST IRINGAL, VIA MELADI, KOZHIKODE - 673 521. BY ADVS. R1 BY SRI.ZUBAIR PULIKKOOL SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.9.2021, THE COURT ON 17.12.2021 DELIVERED THE FOLLOWING: M.A.C.A.No.741 of 2013 3 ## **T.R. RAVI, J.** ## **--------------------------------------------** M.A.C.A.No.741 of 2013 -------------------------------------------Dated this the 17[th] day of December, 2021 ## **JUDGMENT** On 2.11.2001, when the 1[st] appellant's husband Nanu was walking on the side of the National Highway, a motorcycle driven by the 2[nd] respondent in a rash and negligent manner hit him and he sustained serious injuries. He was taken to Medical College Hospital, Kozhikode, but he succumbed to the injuries on the same day. The legal representatives of the deceased preferred the claim petition. The Tribunal awarded a sum of Rs.1,36,000/- as compensation. The appeal is filed claiming enhancement. 2. Heard the counsel for the appellants and the respondents. 3. The 1[st] respondent contended that he had sold the vehicle to the 2[nd] respondent on 13.12.2000 and possession had also been handed over on that date. It is submitted that he had no intimation regarding the accident and it was the 2[nd] respondent who had got the vehicle released from the Police station as owner in possession of the motor cycle. It is hence submitted that since he is not the owner of the vehicle, he is not liable to pay any M.A.C.A.No.741 of 2013 4 compensation. The 2[nd] respondent remained ex parte. The 3[rd] respondent contended that the vehicle was insured with them during the relevant period, but that the 2[nd] respondent did not have a valid driving license at the time of the accident. The Tribunal found that the person responsible for the accident was the 2[nd] respondent who was negligent in driving the vehicle. The insurer had filed an application for causing production of the driving license from the 2[nd] respondent but the 2[nd] respondent did not produce the driving licence and hence adverse inference was drawn against him. Exhibit X1 is the petition filed before the Judicial First Class Magistrate Court, Payyoli, for release of the vehicle. It can be seen that the petition was filed by the 2[nd] respondent stating that he is the real owner and the vehicle was released to him. The 1[st] respondent placed reliance on the decision in **Mathew Thankachan v. Manoharan** reported in **[ILR 1998 (1) Kerala 476]** . The contention is that when the ownership of the offending vehicle is transferred bona fide, the transferee will be liable to pay compensation even if the registration certificate is not transferred. The Court had held that the endorsement of transfer in the certificate of registration is not a condition precedent for sale of the vehicle. In the above circumstances, the Tribunal passed the M.A.C.A.No.741 of 2013 5 ## award against the 2[nd] respondent alone. 4. If the driver of the offending vehicle did not have a license, it is a breach of condition of the contract of insurance and the owner would be liable to pay the compensation [ **See National Insurance Co Ltd v. Kusum Rai [2006 (2) KLT 300 (SC)]** . It is the admitted case that the registration certificate still shows the 1[st] respondent as the owner of the vehicle. In **Naveen Kumar v. Vijay Kumar & Ors.** reported in **[(2018) 3 SCC 1]** , the Hon'ble Supreme Court has categorically held that the owner of the vehicle as per the records of the Registering Authority does not stand absolved of the liability even if his case is that he had transferred the vehicle. 5. In view of the law laid down by the Hon'ble Supreme Court, the 1[st] respondent could not have been absolved from the liability. Even if the 2[nd] respondent driver did not have a licence, the insurer would have been liable to pay the compensation and claim recovery from the registered owner of the vehicle, for the reason of violation of policy conditions. It is submitted by the counsel for the 1[st] respondent that the 2[nd] respondent driver expired. Since this Court had declared that service to the 2[nd] respondent was sufficient, there was no way to ascertain the above M.A.C.A.No.741 of 2013 6 fact. The counsel for the 1[st] respondent also points out that if the parties are able to prove that the 2[nd] respondent in fact had a valid licence, then the liability cannot be fastened on the 1[st] respondent. Since the fixation of the liability by the Tribunal is not in accordance with law, the case needs to be remanded for passing of fresh award in accordance with law as far as that aspect is concerned. However, I am of the opinion that the issue regarding the quantum of compensation need not be remanded. 6. As far as the quantum of compensation is concerned, the Tribunal had fixed the notional income as Rs.2,000/-. The case of the appellants is that the deceased was a businessman doing business in copra and was earning Rs.4,500/- per month. In the absence of evidence, applying the yardstick in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.** , reported in **[AIR 2011 SC 2951]** , the notional income should be fixed as Rs.3,000/- per month. An increase of 10% of the income should be made towards future prospects since the deceased was between 50 and 60 years of age and was not having a permanent employment. As per the dictum in **Sarla Verma vs Delhi Transport Corporation & Ors.** reported in **[2010 (2) KLT 802]** , the multiplier to be adopted in M.A.C.A.No.741 of 2013 7 the case of the deceased should be 11. Since the dependents were the wife and 4 children, the amount to be deducted towards personal expenses should be 1/4[th] . The amount payable towards loss of dependency will hence be Rs.3,26,700/- (3000x110%x 12x11x3/4). After deducting the sum of Rs.1,28,000/- awarded by the Tribunal, the appellants will be entitled to an additional compensation of **Rs.1,98,700/-** under that head. Regarding the conventional heads, the amounts awarded by the Tribunal are very less. The appellants are entitled to Rs.15,000/- each towards funeral expenses and loss of estate. After deducting Rs.2,000/awarded by the Tribunal, the appellants will be entitled to an additional amount of **Rs.13,000/-** towards funeral expenses and a sum of **Rs.15,000/-** towards loss of estate. The 1[st] appellant will be entitled to Rs.40,000/- towards loss of consortium in the place of Rs.5,000/- awarded. An additional amount of Rs.35,000/- has to be paid under that head. The 4 children of the deceased are entitled to parental consortium. However, since they are major children, I am of the opinion that the amount of parental consortium should not be at the rate of Rs.40,000/- as in the case of spousal consortium. The 4 children together are awarded a sum of Rs.1,00,000/- towards parental consortium. The total amount to M.A.C.A.No.741 of 2013 8 be awarded under the head loss of consortium will hence be **Rs.1,35,000/-** . In the result, the appeal is allowed in so far as it relates to the claim for enhancement of the compensation. The appellants along with the 4th respondent are entitled to additional compensation of **Rs.3,61,700/- (Three Lakhs Sixty One Thousand Seven Hundred only)** with interest at the rate of 9% per annum from the date of filing of the claim petition (08.01.2002) till the date of realisation, with proportionate costs. The appeal was filed with a delay of 2120 days. By order dated 12.03.2020, this Court condoned the delay in filing the appeal on condition that the appellants will not be entitled to interest on the enhanced compensation which may be awarded by this Court for the period of 2120 days. The interest payable on the enhanced compensation shall be hence excluding the period of 2120 days. The 3rd respondent shall deposit the additional compensation awarded along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellants are liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the M.A.C.A.No.741 of 2013 9 appellants shall be in accordance with law. The case is remanded to the Tribunal for passing a fresh award after deciding as to the liability of the respondents 1 and 2. The 3rd respondent shall be entitled to recover the amount of compensation awarded by the Tribunal as modified by this Court, from the person found liable by the Tribunal. The parties shall be entitled to let in additional evidence regarding the above issue. The parties will appear before the Tribunal on **24.01.2022** . The Tribunal shall endeavour to pass fresh award as directed, within 6 months from 24.01.2022. Sd/- **T.R. RAVI JUDGE** dsn