Thankamma Scaria and Others v. Jagan Raj and The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 MACA.No. 81 of 2011(B) ---------------------OPMV.2034/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANTS : PETITIONERS ------------------------- 1. THANKAMMA SCARIA, W/O.LATE P.A.SCARIA, PADINJAREPANAYAPPALLIYIL (H), MATTATHUKADAVU BHAGOM, KURICHI KARA. 2. RENJIMON.P.S, S/O.LATE P.A.SCARIA, PADINJAREPANAYAPPALLIYIL (H), MATTATHUKADAVU BHAGOM, KURICHI KARA, REP. BY POWER OF ATTORNEY HOLDER IST APPELLANT. 3. SOMOL.P.S, D/O.LATE P.A.SCARIA, PADINJAREPANAYAPPALLIYIL (H), MATTATHUKADAVU BHAGOM, KURICHI KARA. 4. REJANI.P.S, D/O.LATE P.A.SCARIA, PADINJAREPANAYAPPALLIYIL (H), MATTATHUKADAVU BHAGOM, KURICHI KARA. BY ADV. SRI.K.A.HASHIM RESPONDENTS : - --------------- 1. JAGAN RAJ, HOUSE NO.3/33 APPATUVILAI SWAMYVILAI BHAGOM, THAKKALA KARA, KUZHITHURAI VILLAGE, KALKULAM TALUK, KANYAKUMARI DISTRICT. 2. THE ORIENTAL INSURANCE CO.LTD., KOTTAYAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. ************************* ## **M.A.C.A No.81 of 2011-B ******************************* Dated this the 29[th] day of August, 2011 ## **JUDGMENT** ## BASANT, J. Claimants are the appellants. They are the wife, aged 59 years and 3 adult children of the deceased. The deceased suffered personal injuries in a motor accident which took place on 11.01.2006. He continued as an inpatient for a period of 5 days. He succumbed to the injuries on 15.01.2006. The claimants claimed that the deceased was a business man trading in arecanut. He, according to them, was aged 64 years. The claimants claimed a total amount of Rs.3 lakhs as compensation. His monthly income, it was asserted, was Rs.3,750/-. 2. The insurance company entered appearance and resisted the claim. Inter alia it was contended that the driver of the insured vehicle, a motor cycle, did not have a valid driving licence. It was not disputed that he was having a learner's licence. The insurance company in their written statement contended that the rider of the motor cycle was having only a learner's licence. 2 ## **M.A.C.A No.81 of 2011-B** 3. The Tribunal, by the impugned award came to the conclusion that the claimants are entitled for a total amount of Rs.1,41,633/- along with interest and cost. However, the insurer was absolved of the liability to the claimants on the ground that the driver had only a learner's licence. 4. The claimants claim to be aggrieved by the impugned award. Called upon to explain and be specific, the learned counsel for the appellants assails the impugned award on the following two grounds. i) The Tribunal erred in coming to the conclusion that the insurer can be absolved from the liability; ii) At any rate, the quantum of compensation awarded is inadequate. ## Ground No.(i) 5. The rider/owner of the motor cycle was admittedly not having a licence to ride the motor cycle on the date of the accident. However, it was asserted and proved that he had a valid learner's driving licence on the date of the accident. Ext.A8 is the relevant document. The accident took place on 11.01.2006. Ext.A8 clearly shows that at the relevant time learner's driving licence was valid and it was valid for the period 3 **M.A.C.A No.81 of 2011-B** from 25.10.2005 to 24.04.2006. 6. The rider therefore, it is evident, had a valid learner's driving licence. It is now trite that one in whose name a learner's licence is issued, must also be reckoned as duly licenced to drive the vehicle. Paragraphs 88 to 91 of the decision in **National Insurance Co. Ltd. v. Swaran Singh** [AIR 2004 S.C 1531] deal with this question specifically. Section 3 of the Motor Vehicles Act read along with Rule 3 of the Central Motor Vehicles Rules makes the position crystal clear. It cannot therefore be contended that the rider/owner of the motor cycle was not duly licenced to drive the vehicle at the relevant time. 7. It is then contended that there was no duly licenced person available in the vehicle as instructor as insisted by Rule 3 of the Central Motor Vehicles Rules. The learned counsel for the appellants promptly deters this contention with the plea that such a specific ground is not taken by the insurance company. The insurance company had only contended that the rider was not duly licenced. The contention was never raised that the rider who was having a learner's driving licence had committed breach of any conditions of the policy (or law) stipulating the presence of a trained instructor in the vehicle. Such a specific 4 **M.A.C.A No.81 of 2011-B** plea, we agree with the learned counsel for the appellants, has not been raised in the written statement. The learned counsel for the insurance company places reliance on Ext.A5 charge sheet submitted by the police after due investigation and points out that the charge is laid, inter alia, under Section 3 read with Section 181 of the Motor Vehicles Act. We have been taken through the charge sheet in detail. Even in the charge sheet, there is no specific allegation that the rider of the motor cycle had committed violation of the conditions of the policy (or provisions of law) on the ground that an instructor holding an effective driving licence to drive the vehicle was not available in the vehicle along with the rider as instructor. In short, there is no specific contention raised either in the written statement filed by the insurance company or in the charge sheet filed by the police that there has been infraction of the provisions of Rule 3 (1)(b) of the Central Motor Vehicles Rules. In the absence of even an allegation to that effect in any of the relevant documents, the plea that there was such a violation cannot obviously succeed. The challenge raised on this ground must necessarily succeed. 8. The learned counsel for the appellants submits that 5 **M.A.C.A No.81 of 2011-B** even if the defence under Section 149(2)(a)(ii) is held to have been established, only a direction under the proviso to Section 149(4) should have been issued. At any rate that could not have been reckoned as a sufficient reason for the insurer to claim absolution from liability. We agree with the learned counsel for the appellants on that aspect also. At any rate, inasmuch as the violation of any conditions of the policy under Section 149(2) a (ii) has not been established, we are satisfied that the insurer must shoulder the responsibility to satisfy the award. The challenge thus succeeds. 9. Coming to the challenge against the quantum of compensation awarded, the Tribunal had awarded a total amount of Rs.1,41,633/- as per the details given in paragraph 16 of the impugned award, which we extract below: |**_Sl.No._**|**_Heads of Award_**|**_Amount awarded_**| |---|---|---| |1|Transport to hospital|Rs. 2,000.00| |2|Funeral expenses|Rs. 3,000.00| |3|Medical expenses|Rs. 5,633.00| |4|Loss of consortium|Rs. 10,000.00| |5|Loss of love and affection|Rs. 15,000.00| |6|Pain and sufferings|Rs. 10,000.00| 6 **M.A.C.A No.81 of 2011-B** |**_Sl.No._**|**_Heads of Award_**|**_Amount awarded_**| |---|---|---| |7|Loss of dependency|Rs. 90,000.00<br>(18000 X 5)| |8|Loss of estate|Rs. 5,000.00| |9|Damage to clothing and articles|Rs. 500.00| |10|Bystander's expenses|Rs. 500.00| ||**Total**|**Rs.1,41,633.00**| 10. The learned counsel for the appellants challenges only the amount of compensation awarded under the head of loss of dependency. The Tribunal had reckoned Rs.3,000/- as the monthly income. Thereafter half the monthly income was reduced on the ground that from the total monthly income, personal expenses of the deceased has to be reduced. The learned counsel for the appellants contends that in any view of the matter the deceased being a married person, not more than 1/3 could alone have been deducted from the total monthly earnings towards the personal expenses of the deceased. In this context, the appellants heavily rely on the decision in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121] (para-13). The Tribunal appears to have deducted half the amount on the short reasoning that all the children have attained majority and only the wife could be **M.A.C.A No.81 of 2011-B** 7 said to be dependent on the deceased. The learned counsel for the appellants relying on paragraph 13 of the judgment in **Sarla Verma** (supra) contends that when a person is married, the permissible deduction is only one third and not more. We find force in that contention. The relevant portion in para 13 of the decision in **Sarla Verma** (supra) shows “that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one third where the total number of dependent family members is 2 to 3”. **Sarla Verma** (supra) does not provide for deduction of anything more than one third from the monthly income of a married person towards his personal expenses. That contention is hence found to be acceptable. 11. The learned counsel for the appellants then contends that 7 and not 5 should have been reckoned as the multiplier, the deceased being a person aged below 65 years. Reliance is placed on **Sarla Verma** (supra) (para.24). We find the said objection to be absolutely justified. 12. The deceased was claimed to be aged 64 years as per the petition and 7, we agree, must have been taken as the multiplier. ## **M.A.C.A No.81 of 2011-B** 8 13. We are not persuaded to agree with the challenge raised against the amount granted under the impugned award under any other head. We are satisfied that the amounts awarded under all the other heads are fair, just and reasonable. They do not warrant appellate interference. 14. On the basis of the above discussions, we come to the conclusion that the appellants are entitled to a further amount of Rs.78,000/- as per the details given below: i) Loss of dependency : Rs.78,000.00 [3000 x 12 x 2/3 x 7 = Rs. 1,68,000) minus 90,000] 15. In the result: a) This appeal is allowed in part; b) The appellants are found entitled to receive a further amount of Rs.78,000/- (Rupees Seventy eight thousand only) in addition to the amount already awarded by the Tribunal; c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) We direct that the 2[nd] respondent/insurance company shall be liable to pay the entire amount due under the 9 ## **M.A.C.A No.81 of 2011-B** impugned award and is not entitled for any direction to recover the same under the proviso to Section 149(4) of the Motor Vehicles Act from the first respondent /owner; e) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** rtr/