Raveendran and Others v Abdul Jaleel and Sukkoor and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** ## **M.A.C.A.No. 98 of 2012** **AGAINST THE AWARD DATED 28-11-2009 IN O.P.(MV)No.645/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANTS/PETITIONERS:** - **1 RAVEENDRAN, S/O.AYYAPPAU, MANKUZHIYIL HOUSE, KAINIKARA, POILISSERY, MALAPPURAM DISTRICT.** - **2 KOUSALYA, W/O.RAVEENDRAN, MANKUZHIYIL HOUSE, KAINIKARA, POILISSERY, MALAPPURAM DISTRICT.** - **3 RAJITHA, D/O.RAVEENDRAN, MANKUZHIYIL HOUSE, KAINIKARA, POILISSERY, MALAPPURAM DISTRICT.** - **4 RANJITH, S/O.RAVEENDRAN, MANKUZHIYIL HOUSE, KAINIKARA, POILISSERY, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SUDHEER** ## **RESPONDENT/S:** - **1 ABDUL JALEEL,** - **S/O.MOIDEENKUTTY, PANANKATTIL HOUSE, KAINIKKARA, P.O.POILISSERY-676102, MALAPPURAM DISTRICT.** - **2 SUKKOOR, S/O.MOHAMMEDKULATHIL HOUSE, KAINIKKARA, P.O.POILISSERY-676102, MALAPPURAM DISTRICT.** - **3 THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, TIRUR-676101, MALAPPURAM DISTRICT.** **BY ADVS. SRI.GEORGE CHERIAN (THIRUVALLA) SRI.GEORGE CHERIAN (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No. 98 of 2012 -2- ## **J U D G M E N T** The claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal have come up in this appeal challenging the award passed in the proceedings. 2. One Rajeesh died in a motor accident took place on 20.12.2006. The parents and siblings of the deceased were the claimants in the proceedings before the Tribunal. It is stated in the claim petition that the deceased was a coolie, aged 19 years. A sum of Rs.5,75,000/- was claimed by way of compensation in the proceedings. The accident occurred while the deceased was travelling in a goods autorickshaw sharing the seat of the driver and he died on account of the injuries sustained when the goods autorikshaw dashed against a wall. The case set out by the claimants in the claim petition was that the accident occurred on account of the negligence of the driver of the goods autorickshaw and the claim was, therefore, preferred against the owner, driver and insurer of the goods autorikshaw. The insurer of the goods autorickshaw contested the claim petition, contending that the deceased who was sharing the seat of the driver is not a person covered by the M.A.C.A.No. 98 of 2012 -3- policy. The Tribunal found that the claimants are entitled to a sum of Rs.2,33,801/- by way of compensation and consequently, passed an award directing the owner of the vehicle to pay the said compensation, accepting the contention raised by the insurer that the deceased was not covered by the policy. As noted, the claimants are aggrieved by the award. 3. Heard the learned counsel for the appellants as also the learned counsel for the insurer. 4. The learned counsel for the insurer, placing reliance on the decision of the Apex Court in **United India Insurance Co.Ltd. v. Suresh** [2008 (4) KLT 552 (SC)], contended that the vehicle involved in the accident is not one in which persons could be carried and as such, the policy issued by the insurer would not cover the risk of the persons carried in the vehicle, other than the driver. According to the learned counsel, the Tribunal, in the circumstances, ought to have exonerated the insurer from the liability to pay compensation to the claimants. The learned counsel also placed reliance on the decision of the Division Bench of this court in **New India Assurance Company Ltd. v** . **Abdul Rehaman** [2013 ACJ 1152] in support of the said contention. Per contra, the learned counsel for the claimants contended that the deceased was a M.A.C.A.No. 98 of 2012 -4- person covered by the policy of insurance and the submission made to the contrary by the learned counsel for the insurer is incorrect and unsustainable. It was also contended by the learned counsel that even if it is found that the deceased is not a person covered by the policy of insurance, the insurer is not entitled to be exonerated from the liability and they can only recover the compensation directed to be paid to the claimants from the owner, after paying the same to the claimants. The learned counsel placed reliance on the decision of the Apex Court in **United India Insurance Co. Ltd. v. Poonam** [2011(1) KLT SN 108 SC], in support of the said contention. 5. Ext.B1 is the policy of insurance issued in respect of the vehicle involved in the accident. It is seen that the seating capacity of the vehicle as noted in Ext.B1 is only one. In other words, a person like the deceased who was sharing the seat of the driver cannot be said to be a person covered by the policy. The question remains to be considered is as to whether the insurer is entitled to be exonerated from the liability on that ground. It is seen that in **Abdul Rehaman,** on identical facts, a Division Bench of this court, placing reliance on **Suresh,** held that in a three wheeler goods carriage, the driver could not have allowed anybody else to share the seat, M.A.C.A.No. 98 of 2012 -5- and exonerated the insurer from the liability. But, it is seen that in **Suresh** , even after holding so, the Apex Court held that such cases would only establish a case of breach of conditions of the contract of insurance. The same view has been reiterated by the Apex Court in **Poonam. Poonam** was a case where the question arose for consideration was as to whether the persons carried in the vehicle over and above the persons permitted to be carried are covered under the policy. Though it was held in the said case that the liability of the insurer is confined to the number of persons covered by the policy and not beyond the same and that the persons carried in excess of the limit are liable to be treated as third parties, the Apex Court took the view that the insurer is liable to pay compensation to them as well and that they can only realise the compensation from the owner after paying the same to the claimants. The relevant portion of the judgment of the Apex Court reads thus : “However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, any of the persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could M.A.C.A.No. 98 of 2012 -6- then recover it from the insured owner of the vehicle.” In the light of the decisions of the Apex Court in **Suresh** and **Poonam,** the impugned award exonerating the insurer from the liability is liable to be modified permitting the insurer to realise the compensation from the owner of the vehicle after paying the same to the claimants. 6. Coming to the quantum, it is seen that the Tribunal has computed the compensation payable to the claimants for loss of dependency, reckoning the monthly income of the deceased at Rs.3,000/-. In the light of the decision of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited.** [(2011) 13 SCC 236], the accident being one took place in the year 2006, according to me, the Tribunal should have reckoned the monthly income of the deceased at Rs.5,500/-. Further, in the light of the decision of the Apex Court in **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], the income so arrived at has to be enhanced by 40% towards future prospects of the deceased. Since the deceased was a bachelor, one half of the income will have to be deducted towards personal expenses. The multiplier to be applied in the matter of computing the compensation for loss of dependency M.A.C.A.No. 98 of 2012 -7- to the persons in the age group of the deceased is '18'. If compensation for loss of dependency is worked out on the above basis, the same would come to Rs.8,31,600/(5500x140/100x18/2x12). As the Tribunal has granted only a sum of Rs.1,80,000/- under this head, the claimants are entitled to a further sum of Rs.6,51,600/- by way of compensation under the above head. Towards compensation for loss of estate, it is seen that only a meager sum of Rs.5,000/- was granted. Likewise, towards funeral expenses also, a sum of Rs.5,000/- was granted. In the light of the decision of the Apex Court in **Pranay Sethi,** having regard to the fact that the accident took place in the year 2006, I am of the view the claimants are entitled to a sum of Rs.10,000/- each under the above two heads. The claimants are, therefore, entitled to a further sum of Rs.10,000/- under the said heads. No compensation is seen granted by the Tribunal towards filial consortium to the parents. Having regard to the decision of the Apex court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), according to me, the claimants 1 and 2 who are the parents of the deceased are entitled to filial consortium, which I fix at Rs.25,000/- each. Thus, the claimants are entitled to a total sum of Rs.7,11,600/- M.A.C.A.No. 98 of 2012 -8- in addition to the compensation already granted. In the result, the appeal is allowed, refixing the compensation payable to the claimants at Rs.9,45,401/-. Needless to say, the claimants will be entitled to interest for the entire compensation at the rate of 7.5%, except for the period of delay in filing the appeal, viz, 653 days. It is made clear that on deposit of the compensation, the insurer will be entitled to realise the same from the owner. **Sd/-** **P.B.SURESH KUMAR** **JUDGE**