Rajan v. Babu (S/o Kunjappan) and Babu (S/o Raman) and Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 22ND DAY OF JUNE 2017 / 1ST ASHADHA, 1939 **MACA.No. 147 of 2010** AGAINST THE AWARD DATED 25-05-2009 IN OP(MV)NO.1626/2004 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA ## **APPELLANT** /PETITIONER RAJAN, S/O. LATE RAMAN CHERUVATHOOR HOUSE, KAVILPPADAM DESOM, KODAKARA. BY ADV.SRI.T.N.MANOJ ## **RESPONDENTS/** RESPONDENTS: 1. BABU, S/O.KUNJAPPAN - KOMBATH HOUSE, VASUPURAM, MATTATHURKUNNU, KODAKARA. 2. BABU, S/O.RAMAN, PADINJAREKKUTTY HOUSE, MATTATHURKUNNU, KODAKARA. 3. THE MANAGER ORIENTAL INSURANCE COMPANY LTD., CHALAKUDY. R3 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C.T.RAVIKUMAR & ANIL.K.NARENDRAN, JJ. ============================= M.A.C.A. Nos.147/2010 & 941/2012 ============================ Dated this the 22[nd] day of June, 2017** ## **JUDGMENT** ## **C.T.Ravikumar, J.** These appeals arise from the judgment and award dated 25.05.2009 in O.P.(MV)No.1626/2004 passed by the Motor Accidents Claims Tribunal, Irinjalakuda, germane from an accident that occurred on 30.09.2003. The former appeal is filed by the claimant seeking enhancement of the compensation and the latter appeal has been preferred by the third respondent, the insurer of the offending vehicle involved in the accident seeking the right of recovery of the amount of compensation payable, after paying the same to satisfy the award, on the allegation that there was breach of policy conditions. The basis for the said contention is that according to the insurer, the driver of the vehicle was not holding a valid driving licence at the time of the accident. In such _M.A.C.A.Nos.147/2010 & 941/2012_ 2 circumstances, these appeals are jointly heard and they have been disposed of by this common judgment. 2. We have heard the learned counsel for the appellant in M.A.C.A.No.147/2010 and the learned counsel for the appellant in M.A.C.A. No.941/2012 as well as the learned counsel for the respondents in the respective appeals. For the sake of convenience hereinafter in this judgment, the parties are referred to in accordance with their status in the claim petition. 3. The petitioner is the brother of one Shaju, who died in the motor vehicle accident involved in this case that occurred on 30.09.2003. He was aged 27 years at the time of the accident. He was a pillion rider of the motor cycle bearing Reg.No.KL-8/x 4077. The rash and negligent driving of the said vehicle by the second respondent caused the accident. Mr.Shaju sustained fatal injuries in the accident and he succumbed to the said injuries on 02.10.2003. It is in the said circumstances that the petitioner filed the claim petition for compensation under Section 163A of the Motor Vehicles Act. Before the Tribunal, respondents 1 and 2 who are respectively the _M.A.C.A.Nos.147/2010 & 941/2012_ 3 rider and the owner of the vehicle involved in the accident filed a written statement. The third respondent, the appellant in the latter appeal filed a written statement admitting the insurance policy and at the same time, taking note of the contention that the pillion rider is not covered by the policy. That apart, it was specifically contended that the second respondent who was the rider of the said offending vehicle had no licence at the time of the accident. Before the Tribunal both sides did not adduce any oral evidence. On the side of the appellant, Exts.A1 to A6 were got marked and Ext.B1 which is the policy certificate was got marked on the side of the respondents. The Tribunal after considering the rival contentions and the evidence on record, granted a compensation of Rs.79,500/- with interest at the rate of 7% per annum from the date of petition till realisation. A perusal of the impugned judgment would reveal that virtually the Tribunal quantified the compensation for the death of Shaju by following the multiplier-multiplicand method. The Tribunal was under a finding that the petitioner was not a dependent of the deceased. At the _M.A.C.A.Nos.147/2010 & 941/2012_ 4 same time, it was observed that the compensation is granted to him solely because he is a legal heir, claiming compensation under Section 167(A) of the MV Act. The fact that the Tribunal assessed the compensation by following the multiplier-multiplicand method is evident from the fact that the Tribunal evidently adopted a multiplier of 5 for calculating the compensation. The Tribunal held that the petitioner is a grown up brother of the deceased and therefore it could not be believed that he was a dependent of the deceased. Assigning such reasons, it was held that in such circumstances a higher multiplier for assessing compensation need not be taken. As noticed hereinbefore in the latter appeal, the third respondent who is the insurer of the offending vehicle challenged the fastening of liability to indemnify the insured owner of the vehicle contending that the rider of the vehicle was not having a valid driving licence to drive the motor cycle at the time of the accident. Obviously that question was not at all considered by the Tribunal. In fact no specific issue was also framed in that regard. It is also pertinent to note that a review petition was filed seeking a _M.A.C.A.Nos.147/2010 & 941/2012_ 5 review of the judgment and award passed in O.P. (MV)No.1626/2004 by the third respondent and the same was also dismissed by the Tribunal. 4. When these appeals taken up for consideration on 18.02.2016, this Court passed an order of reference evidently taking note of a conflict between two decisions in respect of awarding compensation under Section 163A of the MV Act, 1988. In **Joseph v. Giji Varghese** [2009 (4) KLT 199] a Division Bench of this Court took the view that in a case where the claimants are not dependents, no amount could be awarded taking note of the multiplier based on the age of the deceased or the age of the claimant as provided under the structured formula in second schedule under Section 163(A) of the MV Act. Another Division Bench in **Kadeeja v. Kerala State Road Transport Corporation** [2013 (4) KLT 683] held that dependency is not relevant in a claim for compensation under Section 163A of the MV Act and therefore the Tribunal need not go into the question as to the selection of the multiplier. The reference was answered by the Full Bench in the decision in **Rajan v. Biju and** _M.A.C.A.Nos.147/2010 & 941/2012_ 6 **Another** reported in 2017 (3) KHC 133 [FB]. The Full Bench held that in a claim petition filed under Section 163A of the MV Act apart from the victim, legal heirs of the victim are also entitled to claim compensation in contradistinction to the legal representatives empowered to file claim petition under Section 166 of the MV Act. It was also held that in a claim petition filed under Section 163-A of the MV Act, dependency got no relevancy. After answering the reference and holding that the decision of the Division Bench in **Joseph** 's case (supra) is no more good law and affirmed the view taken in **Kadeeja** 's case (supra). After answering the reference, the matters were ordered to be placed before the appropriate Bench for disposal and that is how the matters came up for our consideration. 5. We have already adverted to the facts involved in this case. There can be little doubt with respect to the position that in a claim petition filed under Section 163A of the MV Act, compensation payable has to be determined by looking into the structured formula under the Second schedule to the Act. A perusal of the _M.A.C.A.Nos.147/2010 & 941/2012_ 7 same would reveal that virtually the twin factors which are relevant for such determination are the age of the victim to decide the age group to which he belong and his income to know the range of annual income. In this case the relevant details to decide the said factors are available. The deceased was aged 27 years. In such circumstances he belong to the age group of 26-30 years going by the Second Schedule. The Tribunal took note of the fact that despite taking up the contention that the deceased was working in a furniture polishing company and was earning Rs.3250/-, no evidence to establish such contention regarding occupation and income was adduced and consequently fixed the income notionally as Rs.1,500/considering the wage structure in 2003. Obviously the said amount was fixed as the notional monthly income. In such circumstances, the annual income of the deceased is to be taken as Rs.18,000/-. Once the age group and the range of the annual income are ascertained, the corresponding figure has to be identified from the Second Schedule of the Motor Vehicles Act. Going by the same, the amount payable is Rs.3,06,000/-. Going by the note under the _M.A.C.A.Nos.147/2010 & 941/2012_ 8 Second Schedule, the amount of compensation so arrived at in the case of fatal accident claims shall be reduced by 1/3[rd] in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. After deducting 1/3[rd] the appellant could be entitled to get a compensation of Rs.2,04,000/- as compensation for loss of dependency. The Tribunal has also granted an amount of Rs.60,000/- under that head. In such circumstances, the petitioner would be entitled to get an amount of Rs.1,44,000/- over and above the said amount. Going by the second schedule the petitioner was entitled only to get an amount of Rs.2,000/- towards funeral expenses and an amount of Rs.2,500/- towards loss of estate and a maximum of Rs.50,000/- towards medical expenses, if it is supported by bills and vouchers. Since the deceased was a bachelor no amount is payable towards loss of consortium. Admittedly, the amount payable under those heads were already granted as per the impugned award. If so, the petitioner is entitled to get an additional compensation of **Rs.1,44,000/** - (Rupees _M.A.C.A.Nos.147/2010 & 941/2012_ 9 One lakh forty four thousand only). The said amount will carry interest at the rate of 8% per annum from the date of petition till realisation. 6. In the latter appeal, the third respondent insurance company has taken up a specific contention that the question whether the driver of the offending vehicle was having a valid driving licence at the time of the accident was not considered by the Tribunal though such a contention was specifically taken in the written statement. It is also to be noted that I.A.No.2380/2009 was filed in O.P.(MV)No.1626/2004 by the third respondent seeking for a direction to the driver to produce his driving licence to drive the class of vehicle involved, at the time of the accident. The records would reveal that the said IA was rejected. At the same time it is a fact that the third respondent has specifically taken up a contention in the written statement that the rider of the motor cycle was not having a driving licence at the time of the accident. Even then the Tribunal had not specifically formulated an issue as to whether the rider of the motor cycle was possessing a valid driving licence at the time of _M.A.C.A.Nos.147/2010 & 941/2012_ 10 the accident. Going by Section 5 of the MV Act, the owner or a person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of Section 3 or Section 4 to drive the vehicle. In such circumstances, if the owner of the vehicle had permitted the rider who was not having a valid driving licence to drive the class of vehicle to which the offending vehicle belong, at the time of the accident he cannot wriggle out of the responsibility in view of the provisions under Section 5 of the MV Act. Then, if it is proved, the question is whether the insurer could be absolved of his liability to indemnify the insurer. Taking into account the specific contention raised in the written statement and in view of the aforesaid provisions of law, we are of the considered view that the Tribunal ought to have framed a specific issue in that regard especially when such a specific contention was taken in the written statement. Though notice was ordered and served on respondents 2 and 3 in these appeal they have not chosen to enter appearance and contest the matter. Considering all such aspects we are of the view that the matter is to be remanded to the _M.A.C.A.Nos.147/2010 & 941/2012_ 11 Tribunal solely for the purpose of finding the question as to whether the third respondent insurer is liable to indemnify the insured owner of the vehicle and certainly subject to the question as to who is liable to pay the compensation is also to be decided. 7. In the result, M.A.C.A.No.147/2010 is allowed. Additional compensation of Rs.1,44,000/- is awarded. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The third respondent shall deposit the amount along with interest thereon within a period of 2 months from the date of receipt of a copy of this judgment. M.A.C.A.N.941/2012 8. The judgment and award in O.P. (MV)No.1626/2004 is set aside to the extent it fixed the liability to indemnify the insured owner of the offending vehicle on the third respondent and the matter is remanded to the Tribunal to consider the question of liability and in case of a finding that the third respondent is not liable, who is liable to indemnify the driver and to fix the liability to compensate the petitioner. The insurer and _M.A.C.A.Nos.147/2010 & 941/2012_ 12 also the respondents 1 and 2 shall be afforded with an opportunity to adduce the evidence if they so desire in that regard while deciding the question of liability to pay the compensation. Since the claim petition is of the year 2004 a decision shall be taken as expeditiously as possible. In both the appeals, there will be no order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **ANIL.K.NARENDRAN, JUDGE** VS // true copy // Sd/- P.S. To Judge