The Oriental Insurance Co. Ltd. v. Venus C.S. and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 ``` ## **`MACA NO. 2715 OF 2016`** ## **`AGAINST THE AWARD IN OP(MV)NO.758/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR`** ## **`APPELLANT:`** ``` THE ORIENTAL INSURANCE CO.LTD., THIRUVANANTHAPURAM, REPRESENTED BY THE AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH, KOCHI 18. ``` ``` BY ADV SRI.A.R.GEORGE ``` ## **`RESPONDENTS:`** - `1 VENUS.C.S. W/O. SUBAIR M.K, MEETHARUPARAMBIL HOUSE, VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA-683108.` - `2 M.S MUHAMMED RIYAS (NOW MAJOR) AGED 19 YEARS, S/O.SUBAIR M.K, MEETHYARUPARAMBIL HOUSE, VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA-683108.` - `3 M.S SIYAN FATHIMA (MINOR), AGED 14 YEARS, D/O.SUBAIR M.K, MEETHYARUPARAMBIL HOUSE, VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA-683108.` - `4 KUNJUMOHAMMED S/O.HYDROSE, MEETHYARUPARAMBIL HOUSE, VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA-683108.` - `5 NAFEESA W/O.KUNJUMOHAMMED, MEETHYARUPARAMBIL HOUSE, VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA-683108.` - `6 SUNIL LAL, THOOKUVILAXIL HARISREE, PAPPANAMKODE, TRIVANDRUM – 695018.` - `7 RAMESH, S/O.CHINNASWAMY, VALLIKKUNNU HOUSE, ARATTUPUZHA, ARATTUPUZHA VILLAGE – 690515` ## **`MACA NO.2715 OF 2016 & CO NO.24 OF 2017`** ``` 2 ``` ``` (MINOR RESPONDENT NO.3 REPRESENTED BY HER NEXT FRIEND AND MOTHER – VENUS C.S. - THE 1ST RESPONDENT) BY ADVS. SMT.ANUPAMA JOHNY SRI.REJI GEORGE ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2023, ALONG WITH CO.24/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.2715 OF 2016 & CO NO.24 OF 2017 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 CO NO. 24 OF 2017 ``` ``` CROSS OBJECTION IN MACA 2715/2016 FROM THE AWARD PASSD IN O.P(MV)NO.758 OF 2012 ON THE FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR ``` ## **`CROSS OBJECTORS:`** - `1 VENUS.C.S. W/O. SUBAIR M.K, MEETHARUPARAMBIL HOUSE, VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA.` - `2 M.S MUHAMMED RIYAS (NOW MAJOR) AGED 19 YEARS, S/O.SUBAIR M.K, MEETHARUPARAMBIL HOUSE, VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA.` - `3 M.S SIYAN FATHIMA (MINOR), AGED 14 YEARS, D/O.SUBAIR REPRESENTED BY THEIR NEXT FRIEND AND MOTHER – VENUS C.S., MEETHARUPARAMBIL HOUSE, VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA.` - `4 KUNJU MOHAMMED S/O.HYDROSE, MEETHARUPARAMBIL HOUSE, VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA.` - `5 NAFEESA W/O.KUNJUMOHAMMED, MEETHARUPARAMBIL HOUSE, VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA.` ``` BY ADVS. SRI.REJI GEORGE SMT.ANUPAMA JOHNY ``` ## **`RESPONDENTS:`** - 1 `THE ORIENTAL INSURANCE CO.LTD., THIRUVANANTHAPURAM, REPRESENTED BY THE AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD.,` ``` 4 ``` ## **`MACA NO.2715 OF 2016 & CO NO.24 OF 2017`** ``` REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH, KOCHI 18. 2SUNIL LAL, THOOKUVILAXIL HARISREE, PAPPANAMKODE, TRIVANDRUM – 695018. 3RAMESH, S/O.CHINNASWAMY, VALLIKKUNNU HOUSE, ARATTUPUZHA, ARATTUPUZHA VILLAGE – 690515 ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2023, ALONG WITH MACA.2715/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.2715 OF 2016 & CO NO.24 OF 2017 ``` ``` 5 ``` ## **JUDGMENT** [MACA No.2715/2016 & C.O.No.24/2017] This Appeal and Cross Objection assail the Award of the Motor Accidents Claims Tribunal, Perumbavoor (‘Tribunal’, for short) in OP(MV)No.758/2012. 2. On 22.01.2012, when Sri.Subair M.K. is stated to have been standing in his property, watching plucking and removal of arecanut trees by the offending Poclain, one of them fell on his head and succumbed to the injuries on the way to the hospital. It is asserted that the accident occurred on account of the negligence of the driver of the Poclain; and consequently, the Cross Objectors filed the afore Original Petition before the Tribunal, seeking compensation of an amount of Rs.64,41,000/-, limited to Rs.50,00,000/-; but which has been allowed only to a sum of Rs.24,66,600/-. 3. The oriental Insurance Company Limited (‘Insurance Company’, for short), which insured the offending Poclain, has filed MACA No. 2715/2016, assailing the award of compensation as afore as being both impermissible and excessive, contending that no liability could have been cast upon them in any event; while the claimants have filed C.O.No.24/2017, impugning the same Award on ``` MACA NO.2715 OF 2016 & CO NO.24 OF 2017 ``` ``` 6 ``` the ground that it is inadequate. 4. I have heard Sri.A.R.George – learned counsel for the appellant - Insurance Company and Smt.Anupama Johny – learned counsel appearing for the Cross Objectors. 5. Sri.A.R.George vehemently argued that the pleadings and evidence on record would clearly establish that no liability could have been cast upon his client, because the alleged accident happened in a private property and that the deceased was standing in it without any authority. He argued that since this is not a public place, the death - though unfortunate, cannot place any obligation upon his client to honour the compensation computed by the Tribunal. 6. Sri.A.R.George then alternatively contended that the compensation awarded by the Tribunal is excessive, because it has taken the notional income of the deceased to be Rs.12,000/-, without any verifiable evidence; while granting excessive amounts under various other heads, which are impermissible. 7. Sri.A.R.George added to his submissions saying that, in any event, whatever be the notional income adopted, future prospects of 30% could not have been added, has now been done by the Tribunal, since _**National Insurance Company Ltd. v. Pranay**_ ``` MACA NO.2715 OF 2016 & CO NO.24 OF 2017 ``` ``` 7 ``` _**Sethi**_ [2017 (4) KLT 662)] authorizes not more than 25% in the case of a person of 42 years of age, which the deceased was at the time of accident. 8. As his final submission, Sri.A.R.George pleaded that, if this Court is not inclined to accept the first contention raised by him, regarding lack of liability of his client, then liberty may be given for recovering the compensation from the owner of the Poclain, since it has been found by the Tribunal itself that the driver did not have a valid licence to operate it at the time of the accident. He thus prayed that this Appeal be allowed. 9. Smt.Anupama Johny – learned counsel for the Cross Objectors, on the other hand, argued that her client was not a mere ‘Coolie’ or a person with an unascertainable income, but had substantial earnings, as is evident from Ext.A8 – Income Tax Returns. She, however, conceded that this Returns is for the Assessment Year 2010-2011, while the accident happened in the year 2012; but argued that it would clearly indicate that he was earning very well even in the past years. She then added that since the cross objectors are the wife, children and parents of the deceased, each of them is entitled to be compensated for ‘Loss of Consortium’; but that learned Tribunal has granted only a ``` MACA NO.2715 OF 2016 & CO NO.24 OF 2017 ``` ``` 8 ``` consolidated sum of Rs.1,00,000/- in the said head, which is incorrect. She thus prayed that the Cross Objection be allowed and the appeal be dismissed. 10. I have considered the afore rival submissions and have also gone through the evidence on record. 11. On the question of income of the deceased, though the cross objectors have claimed Rs.30,000/- per month, based on Ext.A8 Income Tax Returns, I am of the firm view that the learned Tribunal was without error in having not accepted it. This is because, said document pertains to the Assessment Year 2010-2011, which is for the financial year 2009-2010; while the accident occurred nearly two years later. The figure mentioned in Ext.A8 certainly could not have been, therefore, adopted since, no one is sure whether the deceased had the same income two years thereafter. Obviously, the Tribunal could have only reckoned a notional income, which in my view, it has done correctly, by adopting Rs.12,000/-. I say so because, in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],**_ the Hon’ble Supreme Court had postulated that, even in the case of a ‘coolie’ or a person with an ## **`MACA NO.2715 OF 2016 & CO NO.24 OF 2017`** ``` 9 ``` unascertainable income, in the year 2012 – when the accident occurred – the minimum figure to be reckoned is Rs.8,500/-. Ext.A8 certainly shows that the deceased was not a ‘coolie’ and that he was earning substantial income through his avocation. Therefore, adoption of a figure of Rs.12,000/-, which is a mere Rs.3,500/- more than what has been postulated in _**Ramachandrappa (Supra)**_ for a ‘coolie’, cannot be found to be unjust or improper. 12. That said, the argument of Sri.A.R.George, that future prospects could have been added only at the rate of 25% is on firm ground because, **Pranay Sethi (Supra)** mandates so, in the case of a person who was 42 years at the time of the accident, like the deceased. 13. Further, again in **Pranay Sethi (Supra),** the Hon’ble Supreme Court has said that not more than Rs.15,000/- each can be awarded under the head ‘Funeral Expenses’ and ‘Loss of Estate’, but the learned Tribunal has granted Rs.25,000/- under the former head. Coming to the question of ‘Loss of Consortium’ since, the Cross Objectors are the wife, children and parents of the deceased, they are all entitled to Rs.40,000/- each, as per **Pranay Sethi (Supra).** 14. On the question of compensation under the head ‘Pain and ## **`MACA NO.2715 OF 2016 & CO NO.24 OF 2017`** ``` 10 ``` Sufferings’ and ‘Love and Affection’, it is now well settled, through _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780],**_ that same cannot be awarded in the case where the ‘Loss for Dependency’ is adequately awarded, since they will have to be subsumed into the latter. In this regard, Sri.A.R.George is right, and I propose to accept his contention. 15. The afore being so concluded, it now brings me to the primary question whether the Insurance Company is right in asserting that they are not responsible to honour the compensation. As I have said above, Sri.A.R.George impels a contention that, since the Poclain was in a private property and the deceased was standing there without any authority, his death cannot be construed to be a motor vehicle accident, thus bringing it within the ambit of Section 166 of the Motor Vehicles Act. For this, he relies upon the Police Records, especially Ext.A6 - Charge Sheet, pointing out that it is specifically stated therein that the Poclain was in the property of Witness No.6 mentioned therein, while the deceased was standing there as a mere spectator. 16. I am afraid that I cannot find favour with the afore ``` MACA NO.2715 OF 2016 & CO NO.24 OF 2017 ``` ## **`11`** contentions of the Insurance Company because, the Poclain entered the private property through a public road and was then engaged to remove a tree which the driver ought to have done without negligence. The Charge Sheet specifically records that the driver acted with great amount of negligence and that the tree thereupon fell on the deceased, killing him almost instantaneously. The factum of the accident having been caused by the Poclain, which is a registered motor vehicle, being not disputed, I fail to understand how the Insurance Company can claim immunity from paying the compensation, particularly when they admit that they had issued a valid insurance policy in its favour. 17. This is more so because, Poclains are not expected to be driven on a open road like any other motor vehicle, but is intended to be used in properties, either for construction activities or for such events, as we have seen in this case. Indubitably, therefore, the argument of the Insurance Company, that they are not responsible for the compensation awarded by the Tribunal, cannot find my favour. I, therefore, repel this as being without any merit. 18. However, when I have said so, the question arises as to whether the Insurance Company will be eligible to pay the ## **`MACA NO.2715 OF 2016 & CO NO.24 OF 2017`** ## **`12`** compensation to the Cross Objectors and recover it from the owner of the Poclain. When Ext.A6 – Charge Sheet clearly says that the driver did not have a valid licence and when the Tribunal has not found it to the contrary, this request certainly becomes tenable. In the afore circumstances this appeal and Cross Objection are disposed of in the following manner: (a) The compensation under the head ‘Loss of Consortium’ is enhanced to Rs.2,00,000/-, from Rs.1,00,000/- awarded by the tribunal, reckoning Rs.40,000/- each to the Cross Objectors, as per **Pranay Sethi (Supra).** (b) The compensation under the head ‘Loss of Dependency’ is reduced to Rs.18,90,000/-, from Rs.19,65,600/-, maintaining the notional income of the deceased to be Rs.12,000/- per month, but adding to it only 25% towards future prospects and deducting 1/4th towards his personal expenses, as per _**Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802] and**_ **Pranay Sethi** ## **(Supra).** (c) The compensation under the head ‘Funeral Expenses’ is reduced to Rs.15,000/-, from Rs.25,000/- as per **Pranay Sethi (Supra).** ## **`MACA NO.2715 OF 2016 & CO NO.24 OF 2017`** ## **`13`** (d) The compensation awarded by the Tribunal under the head ‘Pain and Sufferings’ and ‘Love and Affection’ is both deleted. Consequently, the Cross Objectors will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% (reducing the rate of interest of 9% granted by the Tribunal, taking note of the standards of the year 2012 - when the accident happened), from the date of claim, until it is recovered. They will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. The Insurance Company is allowed liberty to recover the compensation as modified above from the owner of the offending vehicle after they honour it in favour of the Cross Objectors. In view of the afore, the sums as fixed above, shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. Sd/- ``` DEVAN RAMACHANDRAN JUDGE ``` ``` MC/24.3 ```