Rajayyan and others v. Simon Joseph and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 9[TH] DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, 1943 ``` ``` MACA NO. 776 OF 2011 ``` ``` AGAINST THE AWARD DATED 10.11.2010 IN OPMV 226/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THIRUVANANTHAPURAM ``` ## `APPELLANT/PETITIONER:` ``` 1RAJAYYAN, T.C.50/717, ARAMADA P.O., THRAKKANNAPPURAM, THIRUVANANTHAPURAM. ``` ``` 2SANTHI MARIYA, CARMEL HOUSE, T.C.50/717, ARAMADA P.O., THRAKKANNAPPURAM, THIRUVANANTHAPURAM. 3ANTONAY ALBERT, CARMEL HOUSE, T.C.50/717, ARAMADA P.O., THRAKKANNAPPURAM, THIRUVANANTHAPURAM. ``` ``` BY ADVS.SRI.R.T.PRADEEP SRI.V.VIJULAL ``` ## `RESPONDENTS/RESPONDENTS 1 & 2 & ADDITIONAL RESPONDENT NOS.3 TO 5` ``` 1SIMON JOSEPH, VALU PARAMBIL VEEDU, OZHAVOOR P.O., PALA, KOTTAYAM. 2PUSHPA RAJ K.(DELETED), ROSE TELMA HOUSE, T.C.47/656, POONTHURA P.O., THIRUVANANTHAPURAM. ``` ``` 3V.C.JOY, S/O.CHACKO VADAKKEKUDIYIRAPPIL, VELLILAPPALLY VILLAGE, KOODUPPULAM P.O., MEENACHIL TALUK, KOTTAYAM. ``` ``` 4PRASANTH, S/O.SETHURAJAN NAIR, ``` M.A.C.A.No.776/2011 -:2:- ``` MOHANAVILAS, POONGUMOODU LANE, ULLOOR, CHERUVAICKAL VILLAGE. ``` ``` 5THE ORIENTAL INSURANCE COMPANY LTD., ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE NO.II, ST.MARY VILLA, ULLOOR, THIRUVANANTHAPURAM. (R2 IS DELETED FROM PARTY ARRAY NAT THE RISK OF THE APPELLANT AS PER ORDER DATED 23/09/2021 IN I.A. 1/2021 IN MACA NO.776/2011.) ``` ``` BY ADVS.SRI.GEORGE CHERIAN THIRUVALLA SRI.G.HARIHARAN SRI.PRAVEEN.H. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.776/2011 -:3:- Dated this the 9[th] day of December, 2021 ## **J U D G M E N T** The appellants were the petitioners in O.P. (MV)No.226/2002 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The original respondents 1 to 5 in the appeal were the respondents before the Tribunal. At the instance of the appellants, the second respondent has been deleted from the party array. Therefore, the parties are referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 163A of the Motor Vehicles Act, 1988(in short, 'Act'), claiming compensation on account of the death of one Justine Jose(deceased), the son of the petitioners 1 and 2 and the sibling of the third petitioner. It was their case that, on 01.04.2000, while the deceased was travelling in a Tata Sumo Car bearing registration No.KL-05/F-6190(car), on the M.A.C.A.No.776/2011 -:4:- Bangalore Mysore road, due to the poor mechanical condition of the car, the car lost control and hit against a tree on the side of the road. In the accident, the deceased sustained fatal injuries and lost his life on the way to hospital. The deceased was aged 29 years and was doing business of his own. He was earning a monthly income of Rs.3,000/-. The petitioners 1 and 2 were completely dependent on him. The accident occurred due to the involvement of the car. There is no negligence on the part of the deceased. Hence, the petitioners are entitled to get compensation from the respondents. The respondents are the owner and insurer of the vehicle. The appellants claimed a total compensation of Rs.4,00,000/- from the respondents. 3. The first respondent had filed a written statement contending that he had sold the vehicle to one V.C. Joy, as per agreement dated 23.02.2000, and he was not a necessary party in the proceeding. 4. The second respondent did not contest the M.A.C.A.No.776/2011 -:5:- proceeding and was set ex parte. 5. On the basis of the averments in the written statement filed by the first respondent, the petitioners impleaded the additional third respondent as a party in the claim petition. 6. The additional third respondent had filed a written statement contending that he had sold the car, on 01.04.2000, to one Prasanth. The vehicle had a valid insurance policy with the Oriental Insurance Company. 7. The first respondent then filed an additional written statement contending that the petitioners had filed another original petition before the Motor Accidents Claims Tribunal, Neyyattinkara, claiming compensation on account of the death of the deceased. Hence, the present claim petition was not maintainable. 8. Consequent to the filing of the written statement by the third respondent, the petitioners M.A.C.A.No.776/2011 -:6:- impleaded the said Prasanth as the additional fourth respondent and the insurer as the additional fifth respondent. 9. The additional fourth respondent did not contest the proceeding and was set ex parte. 10. The additional fifth respondent-insurer had filed a written statement contending that the car was used for smuggling spirit. The deceased was not having a valid driving licence. The owner and driver had violated the insurance policy conditions. Even though the car was having a valid insurance coverage, the additional fifth respondent was not liable to indemnify the additional fourth respondent. 11. The petitioners produced and marked Exts.A1 to A5 in evidence. The additional fifth respondent produced the insurance policy, which was marked as Ext.B1. 12. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in M.A.C.A.No.776/2011 -:7:- recover an part, by permitting the petitioners to amount of Rs.3,44,568/- with interest and cost from the additional fourth respondent. The additional fifth respondent-insurer was exonerated of any liability for the reason that the additional fourth respondent had violated the insurance policy conditions, and under Section 163A, the insurer was not having any liability to pay the compensation amount. 13. Aggrieved by the exoneration of the additional fifth respondent and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 14. Heard; Sri. R.T. Pradeep, the learned counsel appearing for the appellants/petitioners, Sri. G. Hariharan, the learned counsel appearing for the third respondent and Smt. Latha Susan Cherian, the learned counsel appearing for the additional fifth respondent-insurer. 15. The questions that arise for consideration in M.A.C.A.No.776/2011 -:8:- the appeal are: - (i) whether the exoneration of the additional fifth respondent is sustainable in law? - (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No:(i)** 16. The definite case of the petitioners in the claim petition was that, while the deceased was travelling in the car from Bangalore to Mysore, due to the poor mechanical condition of the car, it lost control and hit against the tree. In the accident, the deceased lost his life. 17. In order to corroborate the pleadings in the claim petition, the petitioners produced Ext.A2 final report of the Channapatna Rural police in Crime No.42/2000, which establishes that the deceased himself was driving the car. 18. The petitioners have specifically pleaded in M.A.C.A.No.776/2011 -:9:- column No.4 of the claim petition that the deceased was a businessman(Service station and automobile parts). 19. In view of the unequivocal assertions in the claim petition and the finding of the police in Ext.A2 chargesheet, it is only to be perceived that the deceased was a borrower of the car from the additional fourth respondent. 20. In **Ningamma & Anr. v. United India Insurance Co.Ltd.** [(2009) 13 SCC 710], the Hon’ble Supreme Court has categorically held that when deceased driver borrows a vehicle from the real owner, deceased driver cannot be said to be an employee of the owner, although he may be authorised to drive the vehicle by the owner and, therefore, the deceased would step into the shoes of the owner of the vehicle. 21. The above legal position is reiterated by the Hon’ble Supreme Court in **Ramkhiladi and Anr. v. United India Insurance Co. and Anr.** [(2020) 2 SCC M.A.C.A.No.776/2011 -:10:- 550]. 22. This Court in **Jiljet v. Stamphen George** [2019(1) KLT 546], following the ratio in **Ningamma** (supra) and **New India Assurance Company Ltd. v. Sadanand Mukhi and others** [(2009) 2 SCC 417], has also held that the insurer of the vehicle is not liable to indemnify the liability of the owner, when no additional premium is paid to cover its liability. 23. In view of the empathetic declaration of law in **Ningamma, Ramkhiladi and Jiljet** (supra), and the fact that deceased was only a borrower of the car from the additional fourth respondent, I do not find any error in the finding of the Tribunal, exonerating the additional fifth respondent from indemnifying the fourth respondent. Thus, I answer Question No.(1) against the petitioners and uphold the findings of the Tribunal in this regard. M.A.C.A.No.776/2011 -:11:- ## **Question No:(ii)** 24. The petitioners had claimed that the deceased was running a service station and doing business in automobile parts, and he was earning a monthly income of Rs.3,000/-. They did not produce material to substantiate the income of the any deceased. The Tribunal considering the fact that the accident occurred in the year 2000, fixed the notional monthly income of the deceased at Rs.2,500/-. 25. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 26. Following the yardstick in the afore-cited decision and taking note of the fact that the accident occurred in the year 2002, I do not find any error in fixation of the notional monthly income of the deceased. M.A.C.A.No.776/2011 -:12:- 27. As the notional monthly income is fixed at Rs.2,500/-, the Tribunal has correctly followed the structured formula under the Second Schedule of the Act and has rightly awarded the compensation. Hence, I do not find any error in the compensation amount awarded by the Tribunal, which is just and reasonable compensation. Hence, I answer Question No.(ii) also against the appellants. The appeal is devoid of any merits and is resultantly dismissed. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/09.12.2021 //True copy/ P.A.To Judge