Raji Venugopal & Others vs BINOY & RAHEEMA CHEMMATHUKULAMBILIL & Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944** **MACA NO. 325 OF 2012** **AGAINST THE AWARD DATED 8.2.2010 IN OPMV NO.674/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANTS/PETITIONERS:** 1 RAJI VENUGOPAL, AGED 47 YEARS, W/O.LATE VENUGOPAL, PUSHPAMANGALAM HOUSE, PAZHAYANNUR, KUMBALAKODE P.O., THRISSUR DISTRICT, PIN-680315. 2 V.VIPINLAL, AGED 27 YEARS, S/O.LATE VENUGOPAL,PUSHPAMANGALAM HOUSE, PAZHAYANNUR, KUMBALAKODE P.O., THRISSUR DISTRICT, PIN-680315. 3 V.VARUNLAL AGED 18 YEARS S/O.LATE VENUGOPAL, PUSHPAMANGALAM HOUSE, PAZHAYANNUR, KUMBALAKODE P.O., THRISSUR DISTRICT, PIN-680315. 4 N.KAMALAKSHMI AMMA, AGED 75 YEARS W/O.CHIPPU NAIR, PUSHPAMANGALAM HOUSE, PAZHAYANNUR, KUMBALAKODE P.O., THRISSUR DISTRICT, PIN-680315. BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENTS/RESPONDENTS:** 1 BINOY, S/O.UNNIKRISHNAN, KARIMBANATHODI HOUSE, KOLLEPADAM, THEKKETHARA, THRISSUR DISTRICT, PIN-680587. 2 RAHEEMA CHEMMATHUKULAMBIL HOUSE, PAZHAYANNUR P.O., THEKKETHARA, THRISSUR DISTRICT, PIN-680587. M.A.C.A.No.325/2012 2 3 ORIENTAL INSURANCE CO. LT.D OPP. THIRUVAMPADY TEMPLE, SHORNUR ROAD, THRISSUR680 601, POLICY NO.6481/2006, VALID FROM 15/11/2005 TO 14/11/2006. BY ADV SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS HAVING BEEN FINALLY HEARD ON 13.06.2022, THE COURT ON 17.06.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.325/2012 3 ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A.No.325 of 2012_ ================================ _Dated this the 17[th] day of June, 2022_ ## _**J U D G M E N T**_ The appellants herein are the petitioners in O.P(MV).No.674/2006 on the file of Motor Accidents Claims Tribunal, Ottappalam. They assail award dated 08.02.2010 in the above case on the ground of inadequacy. 2. Heard the learned counsel for the appellants as well as the learned counsel appearing for the 3rd respondent insurance company. 3. Facts of the case in brief: The appellants herein approached the Tribunal and filed M.A.C.A.No.325/2012 4 petition under Section 166 of the Motor Vehicles Act in consequence of the death of one Venugopal, in a motor accident occurred on 19.06.2006 at about 10.45 p.m. According to the appellants, when the above said Venugopal was travelling after sharing the seat of a petty autorickshaw bearing Reg.No.KL-8/Y8233, the same capsized due to the rash and negligent driving of the 1st respondent. The appellants claimed compensation to the tune of Rs.6 lakh from respondents 1 to 3, wherein the 2nd respondent is the owner and 3rd respondent is the insurer of the above autorickshaw. 4. Respondents 1 and 2 filed written statement and denied negligence attributed against the 1st respondent while highlighting policy issued by the 3rd respondent and contending that the 1st . respondent had valid driving licence at the time of the accident 5. The 3rd respondent filed written statement disputing accident and negligence. While admitting a valid insurance policy M.A.C.A.No.325/2012 5 issued in the name of the 2nd respondent in relation to autorickshaw bearing Reg.No.KL-8/Y- 8233, it was specifically contended before the Tribunal that the above said Venugopal was a gratuitous passenger in a goods vehicle and, therefore, his risk was not covered under the policy. Thus liability was disputed. 6. The Tribunal tried the matter. PW1 was examined. Exts.A1 to A6 were marked on the side of the petitioner; Exts.B1 and B2 were marked on the side of the 3rd respondent. 7. On appreciation of the evidence, the Tribunal granted Rs.3,30,000/- as compensation along with interest @ 7% per annum from the date of petition till the date of realisation. Liability was fastened on respondents 1 and 2 after exonerating the company on the ground that Ext.B1 policy does not cover the risk of a gratuitous passenger. 8. While assailing the award impugned, the learned M.A.C.A.No.325/2012 6 counsel for the appellants also not canvassed any interference regarding the finding entered by the Tribunal to the effect that the 3rd respondent has no liability to indemnify the insured, since Ext.B1 policy does not cover the risk of a gratuitous passenger and Venugopal was admittedly a gratuitous passenger. But the learned counsel for the appellants argued that the Tribunal fixed the monthly income of the deceased at Rs.3,000/-, though Rs.4,000/was claimed as the monthly income. The learned counsel would submit further that applying the ratio in [(2011) 13 SCC 236], _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ , Rs.4,000/- ought to be fixed as the monthly income. Then 10% addition also should be given since the deceased was aged between 50 and 60. He also pointed out that the deduction made by the Tribunal as 1/3 is erroneous, it should have been ¼, since the number of claimants are 4. 9. On perusal of the award it appears that the learned M.A.C.A.No.325/2012 7 counsel for the appellants is right in contending so. Therefore, following the ratio in _**Ramachandrappa**_ 's case ( _supra_ ), the monthly income of the deceased is fixed at Rs.4,000/- per month. By adding 10% more, the same would come to Rs.4,400/-. Similarly, ¼ is the deduction following the ratio in [2010 (2) KLT 802], _**Sarla Verma v. Delhi Transport Corporation**_ . Therefore, loss of dependency required to be calculated as under: 4400 X 12 X 13 X ¾ =Rs.5,14,800/-, out of which Rs.3,12,000/- granted by the Tribunal. Hence **Rs.2,02,800/- more** is granted under the head ` **loss of dependency** '. 10. The learned counsel for the appellants argued that the amount granted under the head `loss of cosortium', `loss of estate', `funeral expenses' etc. are low and by applying the ratio in [(2017) 16 SCC 650], _**National Insurance Company Ltd. v. Pranay Sethi**_ _**& Ors.**_ , 10% increase also is entitled by the appellants, since it was held in _**Pranay Sethi**_ 's case ( _supra_ ) that loss of estate, loss of M.A.C.A.No.325/2012 8 consortium and funeral expenses shall be enhanced @ 10% in every 3 year. The learned counsel submitted further that subsequently in the decisions reported in [CDJ 2021 SC 1024], _**Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Company Ltd. & anr.**_ and [CDJ 2021 SC 843], _**N.Jayasree & Ors. v. Cholamandalam Ms. General Insurance Co. Ltd.**_ , the Apex Court granted 10% increase under the conventional heads. However, in _**Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Company Ltd. & anr.**_ 's case ( _supra_ ), the Apex Court dealt with an accident of the year 2013 (09.05.2013) and in _**N.Jayasree & Ors. v. Cholamandalam Ms. General Insurance Co. Ltd.**_ 's case ( _supra_ ), the Apex Court dealt with an accident of the year 2011 (20.06.2011). It is relevant to note further that in a latest decision reported in [2022 (5) SCC 107], _**R.Valli & Ors. v. Tamil Nadu State Transport Corporation Ltd.,**_ when the Apex Court considered a case of death in M.A.C.A.No.325/2012 9 consequence of 2010 accident, 10% addition was not given following the ratio in _**Pranay Sethi**_ 's case ( _supra_ ). 11. I am not inclined to give increase in the case on hand following the above said decisions since this is an accident of the year 2006. Therefore, I am inclined to grant compensation under the conventional heads without addition of 10% as contended. Therefore, towards `loss of consortium', I am inclined to grant Rs.40,000/- each to the petitioners 4 in number and therefore, the same would come to Rs.1,60,000/-, out of which Rs.5,000/- was granted by the Tribunal. Reducing Rs.5,000/- granted by the Tribunal, **Rs.1,55,000/- more** is granted under the head ` **loss of consortium** '. Towards loss of estate and funeral expenses, the Tribunal granted Rs.5,000/- each. Therefore, **Rs.10,000/- each more** is granted under the heads **loss of estate** and **funeral** . **expenses** 12. In the result, the appeal is allowed in part and enhanced M.A.C.A.No.325/2012 10 compensation to the tune of Rs.3,77,800/- (Rupees Three lakh seventy seven thousand eight hundred only) is granted in favour of the appellants with the same rate of interest granted by the Tribunal from the date of petition till realisation or deposit excluding interest for a period of 632 days as ordered in C.M.Appl.No.1/2012 dated 25.02.2022 with direction to the 2nd respondent to deposit the same in the name of the appellants. Since the policy issued in favour of the 2nd respondent does not cover the risk of a gratuitous passenger, the liability of the company in the matter of paying the enhanced compensation also is exempted. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_