Rosy Thomas & Ors. v. Prabhakar Laxman Gaikwad & Ors.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 20[TH] DAY OF OCTOBER 2023 / 28TH ASWINA, 1945 ``` ``` MACA NO. 2960 OF 2009 ``` ``` AGAINST THE AWARD DATED 06.04.2009 IN OP(MV) 16/2004 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA`** ## **`APPELLANTS/PETITIONERS IN OP(MV):`** ``` 1ROSY THOMAS W/O.LATE THOMAS, CHELATTU HOUSE, ANGAMALY DESOM, ANGAMALY VILLAGE & P.O., ERNAKULAM DISTRICT. ``` ``` 2DEVASSY.C.T. S/O.LATE THOMAS CHELATTU HOUSE, ANGAMALY DESOM, ANGAMALY VILLAGE & P.O., ERNAKULAM DISTRICT. 3WILSON.C.T. S/O.LATE THOMAS CHELATTU HOUSE, ANGAMALY DESOM, ANGAMALY VILLAGE & P.O., ERNAKULAM DISTRICT. ``` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS IN OP(mv):`** ``` 1PRABHAKAR LAXMAN GAIKWAD A/P TALSANGI, TAL MANGALWEDHA, SOLAPUR DISTRICT, MAHARASHTRA. ``` ``` 2PRAKASH GAIKWAD S/O.BALA SAHEB C/O.PRABHAKAR LAXMAN, GAIKWAD,, A/P TALSANGI, TAL MANGALWEDHA,, SOLAPUR DISTRICT, MAHARASHTRA. ``` ``` 3THE NEW INDIA ASSURANCE CO.LTD. GOLWALKAR COMPLEX, NEAR SARGAM CINEMA, COLLEGE ROAD, A/P PANDHARPUR, SOLAPUR DISTRICT. ``` ``` MACA NO. 2960 OF 2009 ``` ``` 2 ``` ``` 4K.S.MADHU S/O.SANKARAN KUMBALATH HOUSE, PUTRHENCHIRA P.O., PIN-680 682. ``` ``` 5NATIONAL INSURANCE CO.LTD. MYDHILY MANDIRAM, JANATHA JUNCTION, PALARIVATTOM, KOCHI-25. BY ADVS. SMT.RAJI T.BHASKAR SMT.P.K.SANTHAMMA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2960 OF 2009 ``` ``` 3 ``` ## **`JUDGMENT`** The appellants are the petitioner in O.P.(M.V.) No.16/2004 on the files of the Motor Accident Claims Tribunal, Irinjalakkuda. The said claim petition was submitted by them under Section 163A of the Motor Vehicles Act, 1988, seeking compensation for the death of one Martin due to the injury sustained to him in a motor accident that occurred on 31.10.2003. The appellants are the mother and brothers of the deceased. 2. The accident occurred when the motorcycle ridden by the deceased was hit by an unidentified lorry from behind. Thereupon, the deceased lost control of his motorcycle and hit another lorry coming from the opposite side bearing Registration No. MH 13 G 2521, and he sustained injuries. While undergoing treatment for the injuries, he died on 17.11.2003. The deceased was a driver with a monthly income of Rs.3,300/-. The 1[st] respondent was the owner of the lorry bearing Registration No. MH 13 G 2521, the 2[nd] respondent was the driver, and the 3[rd] respondent was the insurer of the said vehicle. The 4[th] respondent was the owner of the motorcycle ridden by the ``` MACA NO. 2960 OF 2009 ``` ``` 4 ``` deceased, and the 5[th] respondent was the insurer of the said vehicle. 3. The respondents 1, 2 and 4 did not contest the matter. The 3[rd] respondent filed a written statement admitting the insurance coverage of the lorry but contended that the said lorry was not involved in the accident. According to them, initially, the motorcycle ridden by the deceased was hit from behind by a lorry with Tamil Nadu registration and due to its impact, the deceased was thrown off to the road, and the lorry insured with the 3[rd] respondent hit the motorcycle. It was the specific contention that the lorry never hit the deceased, but it hit only the motorcycle, which was thrown off after it was hit by a lorry with Tamil Nadu registration. The 5[th] respondent submitted a written statement admitting the coverage of the policy with respect to the motorcycle. However, they also disputed the liability to pay compensation. 4. The evidence in this case consists of Exts.A1 to A7 from the side of the appellants and Exts. B1 to B3 from the side of the respondents. After the trial, the Tribunal came to the ``` MACA NO. 2960 OF 2009 ``` ``` 5 ``` conclusion that the 4[th] respondent was liable to pay the compensation. It was found by the Tribunal that, the lorry insured with the 3[rd] respondent was not directly involved in the accident and the respondents 1 to 3 were exonerated from the liability. Since the motorcycle was covered with only an “Act only” policy, the 5[th] respondent Insurance Company was also exonerated. The quantum of compensation was fixed as Rs.99,500/- and the 4[th] respondent was directed to deposit the said amount with interest @ 7% per annum from the date of petition till realisation. This appeal is filed challenging the said award. 5. Heard Sri.P.V. Baby, learned counsel appearing for the appellants, Smt.P.K. Santhamma, learned counsel appearing for the 3[rd] respondent and Smt.Raji T. Bhaskar, learned counsel appearing for the 5[th] respondent. 6. The main challenge in this appeal is against the exoneration of respondents 1 to 3 from the liability. The specific contention put forward by the learned counsel for the appellants in this regard is that Ext.A1 FIR and Ext.A3 final report submitted by the Police would indicate the involvement of the lorry bearing ``` MACA NO. 2960 OF 2009 ``` ``` 6 ``` Registration No.MH 13 G 2521 which was owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. Therefore, since the claim petition was under Section 163A of the Motor Vehicles Act, mere involvement of the vehicle in the accident alone would be sufficient to make them liable to pay compensation. 7. The learned counsel for the 3[rd] respondent would oppose the aforesaid contention by pointing out that the liability is upon the lorry, with Tamil Nadu Registration, which was never identified. It was pointed out that, even though the Police conducted an investigation based on Ext.A1 FIR, they filed Ext.A3 final report referring to the matter as undetected since the vehicle hit the motorcycle, which was a lorry with Tamil Nadu registration, could not be traced out. Therefore, it was contended that no liability can be attributed to the 3rd respondent. 8. I have carefully gone through the materials placed on record and considered the rival contentions raised by the parties. As rightly pointed out by the learned counsel for the appellants, since the claim petition is under Section 163A, the question of ``` MACA NO. 2960 OF 2009 ``` ``` 7 ``` negligence need not be considered, and it is not the obligation of the claimants to establish the same. The claimants would be entitled to compensation once it is shown that the deceased died due to the injuries sustained in an accident arising out of the use of the motor vehicle. Thus, the only question to be considered is whether the vehicles referred to in this claim petition were involved in the accident and whether the injuries sustained by the deceased were due to such an accident. The only documents available on record to establish the manner in which the accident occurred are Ext.A1 FIR and Ext.A3 final report. Ext.A1 is seen registered based on information furnished by an eyewitness, and from the FIS given by him, it is seen that, initially, the motorcycle ridden by the deceased was hit from behind by a lorry and due to the impact of the same, the deceased lost control and it crashed against a lorry insured with the 3[rd] respondent which was coming from the opposite side. In Ext.A3 final report also, the description as to the manner in which the accident occurred remained the same, even though they found that the accident happened due to the negligence on the part of the driver of the lorry with Tamil ``` MACA NO. 2960 OF 2009 ``` ``` 8 ``` Nadu registration which hit the motorcycle ridden by the deceased from behind. Thus, even though no negligence was attributed to the lorry insured with the 3rd respondent in the final report, the involvement of the said vehicle is very evident, and it was also explicitly stated that the lorry hit the motorcycle while the deceased was riding the motorcycle. 9. However, the Tribunal exonerated the lorry insured with the 3[rd] respondent mainly on the ground that, when the motorcycle ridden by the deceased was hit from behind by the lorry with Tamil Nadu registration, the deceased was thrown off from the motorcycle and the lorry insured with the 3[rd] respondent hit the motorcycle only. Even though the Tribunal entered the said finding by referring to Ext.A3 final report, on carefully going through the contents of the same, I am unable to interpret the description of the accident as contained therein, in that fashion. On the other hand, the description of the accident, as contained therein, is to the effect that after being hit by the lorry with Tamil Nadu registration from behind the deceased along with the motorcycle, hit against the lorry insured with the 3[rd] respondent. ``` MACA NO. 2960 OF 2009 ``` ``` 9 ``` Therefore, the accident in which the deceased sustained injuries was arising out of the use of motor vehicles, including the lorry insured by the 3[rd] respondent. Section 163A of the Motor Vehicles Act casts a liability to pay compensation to the registered owner or the insurer of the vehicle involved in the accident. Thus, if the accident arose out of the use of a motor vehicle, all the vehicles that were involved in the accident would be held liable to pay the compensation. Therefore, the exoneration of respondents 1 to 3 from the liability, as found by the Tribunal, was not proper, and it is to be set aside. It is ordered accordingly. 10. Another question arises here about the liability of the 4[th] and 5[th] respondents. The 4[th] respondent owned the motorcycle ridden by the deceased, and the 5th respondent was the insurer. As far as their status is concerned, their liability was on account of the act of the deceased riding the motorcycle and getting involved in the accident. The claim against the said respondents at the instance of the legal heirs of the deceased would be in effect, claiming compensation from the victim himself, as in this case only through the victim, the owner and the insurer ``` MACA NO. 2960 OF 2009 ``` ``` 10 ``` of the motorcycle can be held liable to pay compensation. The position of law in this regard is settled as per the principles laid down by the Hon’ble Supreme Court in **Ningamma v. United India Insurance Co. Ltd., (2009) 13 SCC 710** , wherein it was held that when a person is riding the vehicle, with the consent of the owner of the same, he steps into the shoes of the owner. Therefore, the claim petition under Section 163A of the Motor Vehicles Act cannot be maintained against the 4[th] and 5[th] respondents. Thus, the irresistible conclusion possible is that the liability to pay the compensation has to be imposed upon respondents 1 to 3 jointly and severally, and since the vehicle was covered with a valid policy issued by the 3[rd] respondent, the payment has to be effected by the 3[rd] respondent, and it is ordered accordingly. 11. The next aspect is relating to the quantum of compensation. According to the appellants, the deceased was a driver by profession with a monthly income of Rs.3,300/- and he was aged 32 years at the time of the accident. As the claim petition was submitted under Section 163A of the Motor Vehicles ``` MACA NO. 2960 OF 2009 ``` ``` 11 ``` Act, the compensation has to be calculated strictly in tune with the structured formula as contemplated under the Second Schedule of the Motor Vehicles Act, 1988, prior to the amendment. However, compensation in this case was calculated by the Tribunal by adopting a multiplier method and also taking the age of the 1[st] appellant, the mother of the deceased, for the purpose of determining the multiplier applicable. The said method was not correct. As the Second Schedule contained specific amounts with respect to the case of death, which was calculated with a multiplier different than contemplated for the personal injuries, the proper course is to simply determine the compensation by following the figures shown in the Second Schedule. Moreover, as the compensation contemplated under the Second Schedule of the Motor Vehicles Act contains the application of no multiplier as far as the case of death is concerned, the question of taking a multiplier applicable to the age of the mother also does not arise. Even otherwise, it is a well settled position that, in respect of claims under Section 166 of the Motor Vehicles Act also, the proper multiplier to be adopted is concerning the age of the victim ``` MACA NO. 2960 OF 2009 ``` ``` 12 ``` and not with respect to the age of the dependent. Therefore, the course adopted by the Tribunal for determining the quantum of compensation was also not proper, as the same was not strictly in tune with the structured formula as contemplated under the Second Schedule of the Motor Vehicles Act. 12. For the purpose of determining the quantum of compensation under the Second Schedule of the Act, the first element to be determined is the monthly income. In this case, the Tribunal has taken the monthly income as RS.2000/-. As the accident occurred in the year 2003, the said amount appears to be on the lower side. The Hon’ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], has fixed the monthly income of an ordinary employee as Rs.4,500/- in the year 2004. Therefore, under no circumstances the amount of Rs.3,300/claimed by the appellants herein as the monthly income of the deceased can be treated as unreasonable. Therefore, the aforesaid monthly income, as claimed in the claim petition, can be ``` MACA NO. 2960 OF 2009 ``` ``` 13 ``` accepted. While calculating the compensation, based on the monthly income of Rs.3,300/-, the case of the deceased would fall under the highest category for the age group of 30-35 years. The amount shown as per the Second Schedule is Rs.6,40,000/-. 1/3[rd] of the same has to be deducted towards personal expenses for arriving at the actual compensation for loss of dependency. Therefore, the amount would come to Rs.4,26,666/-. In addition to the same, the amounts under the heads of the general damages as contemplated in Clause 3 of the Second Schedule are also to be granted, which are as follows: Funeral expenses : Rs.2,000/Loss of estate : Rs.2,500/Medical Expenses : Rs:15,000/- The appellants have indeed claimed an amount of Rs.98,179/- as medical expenses. But, since the medical expenses payable as per the Second Schedule are subject to a maximum of Rs.15,000/- only that amount can be granted. Therefore, the total compensation is determined as Rs.4,46,166/- (Rupees four lakh forty six one hundred and sixty six only). ``` MACA NO. 2960 OF 2009 ``` ``` 14 ``` In the light of the aforesaid observations, this appeal is allowed, the award dated 06.04.2009 in O.P.(M.V.) No.16/2004 passed by the Motor Accident Claims Tribunal, Irinjakkuda is hereby modified by holding that respondents 1 to 3 are jointly and severally liable to pay the compensation, and since the vehicle was covered with a valid insurance policy issued by the 3[rd] respondent, the payment has to be effected by the 3[rd] respondent. The quantum of compensation is fixed as Rs.4,46,166/- (Rupees four lakh forty six thousand one hundred and sixty six only), and the 3[rd] respondent is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and proportionate cost within a period of three months from the date of receipt of a copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs