The New India Assurance Company Ltd. v. Isha Beevi @ Isha and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH SATURDAY, THE 6TH DAY OF AUGUST 2016/15TH SRAVANA, 1938 MACA.No. 1419 of 2007 ( ) -------------------------AGAINST THE AWARD IN OPMV 378/2000 of M.A.C.T.,PUNALUR DATED 16-05-2006 APPELLANT(S)/APPELLANT/3RD RESPONDENT: ------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY THE DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. ## BY ADV. SMT.RAJI T.BHASKAR RESPONDENT(S)/PETITIONERS 1 TO 4 & RESPONDENTS 1 & 2: ----------------------------------------------------- 1. ISHA BEEVI @ ISHA, SHAN MANZIL, ELAVARAMKUZHI, VILAKKUPARA P.O., ANCHAL. 2. SAINABA BEEVI, M/O. DECEASED SHERIEF, NIRAPPIL VEEDU, ELAVARAMKUZHY, ANCHAL. 3. SHAN, S/O. SHERIF, AGED ABOUT 15 YEARS - (MINOR), -DO- 4. SHABANA, D/O. SHERIF, AGED ABOUT 7 ½ YEARS(MINOR), -DO- 5. C.P.MUHAMMED BASHEER, S/O. MEERAN RAWTHER, CHARUVUKALAYIL VEEDU, VILAKKUPARA P.O., AYIRANALLOOR VILLAGE. 6. S.SHIBU, S/O. SIVADASAN, MYLAVILA VEEDU, ELAVARAMKUZHI, VILAKKUPARA P.O., AYIRANALLOOR VILLAGE. ## R1,2 BY ADV. SRI.ANCHAL C.VIJAYAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2016, ALONG WITH CO. 45/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ## **========================== M.A.C.A. No.1419 OF 2007 & CROSS OBJETION No.45 OF 2015 ==========================** Dated this the 6[th] day of August, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the judgment dated 16.5.2006 passed by the Motor Accidents Claims Tribunal, Punalur in O.P.(MV). No.378 of 2000. The appellant herein, the insurer of the offending vehicle involved in the accident in question was the third respondent therein. Challenge against the judgment and award is made mainly on twin grounds. Firstly, it is contended that since the claim petition was filed seeking compensation for the death of a passenger in a private vehicle covered by a comprehensive policy without any wider coverage, the insurance company is not liable to indemnify the insured-owner. Secondly, it is contended that there is violation of the permit condition as also the conditions of policy owing to the fact that **M.A.C.A.1419/2007 & CO.45/2015** 2 the vehicle was registered as a private vehicle whereas the accident occurred when it was used as a taxi. 2.The cross objection was filed with a long delay of 2524 days. As per order dated 1.9.2015, it was condoned on condition that in the event of it being allowed, the enhanced compensation awarded to the cross objectors would not bear interest from 15.2.2008 till 14.1.2015, the date of the filing of the cross objection. The cross objectors/ respondents 1 to 4, in the appeal were the claimants and they seek for enhancement of the quantum of compensation contending that as per the impugned award, they were denied just compensation. 3.We have heard the learned counsel for the appellant and the learned counsel for respondents 1 to 4/cross objectors. 4.The cross objectors/respondents 1 to 4 in the appeal filed the claim petition under section 166, M.V.Act seeking compensation for the death of one Sherif in a motor vehicle accident that occurred on 27.2.2000. They are respectively his wife, mother and minor children. On that fateful day, the deceased Sherif was travelling as a passenger **M.A.C.A.1419/2007 & CO.45/2015** 3 in a jeep bearing Reg.No.KL/2/C/4746, driven by the second respondent, through Anjal-Ayoor public road. When the jeep reached near Brothers Ice Factory Junction, it hit against a tree as a result of which he sustained injuries to which he succumbed later, from the hospital. The accident occurred when a pedestrian abruptly crossed the road and in order to save his life, the second respondent swerved the vehicle and losing its control, it hit against a tree. 5.Before the Tribunal, the first respondent/first petitioner got examined as PW1 and Exts.A1 to A8 were got marked. The first and second respondents therein viz., the owner and the driver of the offending vehicle, remained ex parte before the Tribunal. Though no oral evidence was adduced on the side of the third respondent, the appellant herein, it got marked Ext.B1 which is the certified copy of the insurance policy. The Tribunal passed an award for `3,95,000/with interest at 6% per annum from the date of the petition till realisation along with cost of `2,000/-. It is feeling aggrieved by the same that the captioned appeal was filed on the above mentioned **M.A.C.A.1419/2007 & CO.45/2015** 4 grounds and the cross objection was filed in the said appeal raising grievance that they were deprived of just compensation. 6.We have already noticed that bifold contentions have been raised to mount challenge against the award, by the appellant. Coming to the first contention that since the deceased was a passenger in a private vehicle which is covered by a comprehensive policy without wider coverage the insurance company is not liable to indemnify the insured-owner, it is to be held that the said contention is no more available to the appellant in the light of the decision of the Hon'ble Apex Court in **Royal Sundaram Alliance Insurance Co. Ltd. v. A. Meenakshi and others** reported in **2009 KHC 4491.** Going by the said decision, passenger in a private car is also covered by a comprehensive policy. Going by Ext.B1 which is the copy of the insurance policy in respect of the vehicle in question, it was valid at the time of the accident and that it had the coverage for five persons. No evidence was adduced by the appellant to establish that more than five persons were there in the vehicle at the time of the accident. In **M.A.C.A.1419/2007 & CO.45/2015** 5 such circumstances, the appellant cannot succeed on the first ground. 7.What survives for further consideration in the appeal is whether on the second ground, the appellant is entitled to succeed. The second ground of challenge is to the effect that by using the vehicle in question registered as a private vehicle as a taxi at the time of the accident, there occurred violation of permit conditions as also the conditions of policy. While considering the sustainability of the said contention, we will have to look into the question what are the materials available on record justifying the appellant to raise such a contention. Obviously, the Tribunal declined to accept the said contention holding that there is absolutely no evidence whatsoever adduced by the appellant herein to establish that the vehicle in question was being used as a taxi at the time of the accident and thereby, the insured-owner violated the conditions of permit as also the policy. The learned counsel for the appellant contended that the insurance company has specifically taken such a contention regarding violation of permit condition as also violation of conditions of policy **M.A.C.A.1419/2007 & CO.45/2015** 6 in the written statement filed before the Tribunal. But at the same time, there can be no doubt that pleadings of a party cannot take place of the proof. It cannot be a substitute to evidence. Pleadings have to be established by adducing cogent evidence. On going through the evidence on record, we do not find any material at all which would establish the aforesaid contentions taken by the appellant. Therefore, we do not find any reason to hold that the Tribunal erred in arriving at such conclusion disregarding the evidence adduced. When there is absolute absence of any evidence to establish the aforesaid contention, it is meaningless to contend that the evidence was discarded and we are of the considered view that the Tribunal had correctly appreciated the evidence on record and arrived at the rightful conclusion that the appellant had failed to establish aforesaid contention. In the said circumstances, the appeal has to fail. 8.We will now consider the question whether cross objectors who are respondents 1 to 4 in the captioned appeal are entitled to get enhanced compensation. The cross objectors contended that the **M.A.C.A.1419/2007 & CO.45/2015** 7 Tribunal ignored the specific contention taken up in the claim petition to the effect that deceased Sherif was working abroad and he was earning `10,000/- per month. While considering the evidence on record, it can be seen that apart from Ext.A8 passport, no material whatsoever, was produced by respondents 1 to 4 to establish occupation and income of the deceased. In such circumstances, we are of the view that the Tribunal cannot be found fault with in fixing the monthly income of the deceased Sherif notionally, for calculation purpose. But, then the question is whether the Tribunal is justified in fixing the monthly income of the deceased as `3,000/- and then in deducting 1/3 of it towards personal expenses, without reckoning the future prospects which the deceased would have had but for the untimely death. The accident in question occurred on 27.2.2000 and the deceased was then aged 40 years. The Tribunal fixed the monthly income of the deceased notionally at `3,000/-. We are of the considered view that even in the absence of evidence regarding the income and occupation, the decision of the Apex Court in **M.A.C.A.1419/2007 & CO.45/2015** 8 **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** can be taken as guidance for looking into the question whether the notional fixation of the monthly income of the deceased for calculation purpose warrants interference. In that decision, in respect of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court fixed the monthly income notionally at `4,500/-. The accident in this case occurred about 4 years prior to the said accident. Therefore, the Tribunal cannot be said to have gone wrong in fixing the monthly income notionally as `3,000/-. In the light of the decision in **Sarla Verma v.** **Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** it is to be held that the Tribunal has correctly deducted 1/3 towards the personal expenses reckoning the number of dependents. True that the deceased Sherif was not a salaried person and in the strict sense, he could not have been said to be a person with fixed wages. But, then one cannot say that in respect of a person eking livelihood by engaging himself in any manual labour, price index, cost of living etc. would not be having **M.A.C.A.1419/2007 & CO.45/2015** 9 any effect or impact at all. Naturally, even in such cases, such persons would be constrained to seek for increase in their wages so as to cope up with such situations and to make a decent living. We will also have take into consideration yet another aspect, i.e., in respect of such persons there would not be any superannuation and they could continue to do such works as long as they are hale and hearty. Taking into account all such aspects and taking into account the fact that the deceased was aged only 40 years on the date of the accident, we are inclined to make 30% addition to the income fixed hereinbefore, reckoning the future prospects which he would have had. Based on such deduction and addition as aforesaid, the monthly income for calculation purpose, has to be taken in this case as `2,600/-. It is submitted by both sides that the Tribunal has correctly identified the multiplier with reference to the age of the deceased. If loss of dependency is re-assessed with modified monthly income, the appellant would be entitled to get an amount of `4,68,000/-. But, the Tribunal has already granted an amount of `3,60,000/-. Therefore, **M.A.C.A.1419/2007 & CO.45/2015** 10 after deducting the said amount, the cross objectors/respondents 1 to 4 would be entitled to get `1,08,000/- additionally under that head. Now, we will examine the question whether in addition to that, the cross objectors are entitled to get enhancement under any other head. Relying on the decision in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54]** , learned counsel for respondents 1 to 4 submitted that the respondents are entitled to get enhancement of the compensation granted under the heads funeral expenses, loss of consortium as also loss of love and affection. Learned counsel for the appellant contended that the respondents are not justified in seeking enhancement under funeral expenses and loss of consortium relying on **Rajesh'** s case. As a matter of right, the respondents cannot claim enhancement of compensation towards loss of love and affection relying on the said decision it is further contended. Towards funeral expenses, the Tribunal granted only `3,000/-. In the light of the decision in **Rajesh** 's case, in the absence of evidence for higher expenses, a minimum of `25,000/- has to be granted towards funeral **M.A.C.A.1419/2007 & CO.45/2015** 11 expenses. Therefore, the respondents are entitled to get `22,000/additionally under the said head and it is awarded. Towards loss of consortium, in the light of the decision in **Rajesh** 's case, the surviving spouse is entitled to get a minimum of `1,00,000//-. In this case, the Tribunal granted only an amount of `10,000/- to the first petitioner. Since she being the widow of deceased Sherif, she is entitled to get `90,000/- more under that head. It is awarded. Now, the question is whether the respondents are entitled to get enhanced compensation under the head loss of love and affection. Certainly, the first petitioner is not entitled to seek any amount under the said head after getting an amount of `1,00,000/- towards loss of consortium. Respondents 3 and 4 were minors at the time of death of Sherif. The second respondent is the mother of the deceased. We are of the view that an amount of `85,000/- can be granted additionally under the head loss of love and affection taking into account the aforesaid factors and further that the Tribunal had granted only an amount of `15,000/-. **M.A.C.A.1419/2007 & CO.45/2015** 12 In the said circumstances, the appeal is dismissed. In the light of the discussions as above, the cross objection is allowed and the respondents 1 to 4 who are the cross objectors is awarded an additional compensation of `3,05,000/-. The said enhanced amount will carry interest at the rate of 8% from the date of the petition till realisation. The appellant-insurer is directed to deposit the said amount along with interest thereon within a period of three months from the date of receipt of a copy of this judgment. However, it is made clear that while calculating the interest payable, in terms of the order dated 1.9.2015, the cross objectors will not be entitled to get interest on the additional compensation from 15.2.2008 till 14.1.2015. It is also made clear that out of the entire amount of compensation awarded, the first respondent/first petitioner alone would be entitled to get `90,000/- granted additionally towards 'loss of consortium'. The second respondent is entitled to get `20,000/- and respondents 3 and 4 are entitled to equally the balance amount from out of `85,000/granted additionally under the head 'loss of love and affection'. The **M.A.C.A.1419/2007 & CO.45/2015** 13 balance amount alone will be available for apportionment. The apportionment of the amount made by the Tribunal is maintained only relating the amount already awarded by the Tribunal. The balance amount of `1,30,000/- along with interest thereon shall be apportioned between the cross objectors/respondents 1 to 4 in the ratio 30:10:30:30. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR (JUDGE)** **Sd/K.P.JYOTHINDRANATH (JUDGE)** spc/ **M.A.C.A.1419/2007 & CO.45/2015** 14 C.T. RAVIKUMAR, J. **M.A.C.A.1419/2007 & CO.45/2015** 15 JUDGMENT September, 2010