Thresiakutty and others v Abdul Khadar and others

MACA NO. 1923 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 10[TH] DAY OF FEBRUARY 2022 / 21ST MAGHA, 1943** ## **MACA NO. 1923 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 301/2006 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANT/S:** 1 THRESIAKUTTY, W/OJACOB, AGED 58 YEARS, THAYIL HOUSE, VENGALLOOR P.O., THODUPUZHA. 2 JOMON SO. JACOB AGED 33 YEARS THAYIL HOUSE, VENGALLOOR P.O., THODUPUZHA. 3 JOMY SO. JACOB AGED 30 YEARS THAYIL HOUSE, VENGALLOOR P.O., THODUPUZHA. 4 JISMON SO. JACOB AGED 25 YEARS THAYIL HOUSE, VENGALLOOR P.O., THODUPUZHA. BY ADV SRI.GEORGEKUTTY MATHEW ## **RESPONDENT/S:** 1 ABDUL KHADAR, S/O.HYDROSE, KOLLATHARA, VILANGU P.O., KARUKULAM,, KIZHAKKAMBALAM. 2 RAJEESHKUMAR SO. RAVEENDRAN RAJEEV BHAVAN, MARKET JUNCTION BHAGOM,, MEKKU KARA, ELANTHOOR VILLAGE, KOLENCHERY TALUK. 3 NEW INDIA ASSURANCE COMPANY LTD. REPRESENTED BY ITS BRANCH MANAGER, PERUMBAVOOR. BY ADV SRI.P.K.BABU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1923 OF 2009 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.301/2006 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. The respondents in the appeal were the respondents 1 and 3 before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Jacob (deceased) - husband of the 1[st] appellant and father of the appellants 2 to 4. It was their case that, on 27.12.2005, while the deceased was riding his scooter through the Kumaramangalam – Thodupuzha road, a lorry bearing Registration No.KL-17A-7197, driven by the 2[nd] respondent in a negligent manner, hit the scooter of the deceased. The deceased sustained fatal injuries and lost his life instantaneously. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. The deceased was a pensioner and an agriculturist, and he was earning a monthly income of Rs.9,000/-. The appellants were the dependents of the deceased. Hence, they claimed a compensation of MACA NO. 1923 OF 2009 3 Rs.6,47,000/- from the respondents, which claim was limited to Rs.2,00,000/-(Rupees Six lakh only). 3. Even though the respondents 1 and 2 entered appearance through counsel, they did not file any written statement. 4. The 3[rd] respondent had filed a written statement admitting that the lorry had a valid insurance coverage. It was also stated that the 2[nd] respondent was the real owner of the lorry, who did not have a valid driving license as on the date of accident. Hence, the 3[rd] respondent may be exonerated of its liability. 5. The appellants had produced and marked Exts.A1 to A6 in evidence. The 3[rd] respondent had produced Exts.R1 to R3 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the respondents 1 and 2 an amount of Rs.1,89,100/- including the interim relief of Rs.50,000/- awarded, with interest and cost. Nonetheless, the MACA NO. 1923 OF 2009 4 Tribunal entered a finding that, as the 2[nd] respondent did not have a valid driving license, the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to be exonerated of its liability. 7. Aggrieved by the exoneration of the 3[rd] respondent and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri.Georgekutty Mathew, the learned counsel appearing for the appellants/petitioners and Sri. P.K. Babu, the learned counsel appearing for the 3[rd] respondent/insurer. Even though the respondents 1 and 2 have been served with notice, there is no appearance for them. 9. The questions that arise for consideration in the appeal are : - (i) Whether the exoneration of the 3[rd] respondent is sustainable in law ? - (ii) Whether the compensation awarded is reasonable and just ? MACA NO. 1923 OF 2009 5 ## **Question No.1** 10. The specific case of the 3[rd] respondent was that the 2[nd] respondent – driver of the lorry did not hold a valid driving license as on the date of the accident. The 2[nd] respondent produced Ext.R1 – driving license particulars, which establishes that his license had expired on 20.06.2005. The license was only renewed on 30.12.2005. However, the accident occurred on 27.12.2005. ## 11. In **Oriental Insurance Company Ltd vs. Poulose** [2015 (1) KLT 682 ], a Larger Bench of this Court has categorically declared that the renewal of the license would be effective only from the date of renewal. Until the date of renewal, it cannot be said that the driver had a valid driving license after its expiry. Further it is also held that if the driver did not have a valid driving license, it amounts to breach of insurance policy conditions, giving a right to the insurer to pay the compensation amount and recover the amount from the insured. 12. In the present case, admittedly the license of the 2[nd] MACA NO. 1923 OF 2009 6 respondent had expired on 20.06.2005 and the accident occurred on 27.12.2005. It is after the expiry of 30 days i.e. on 30.12.2005, that the 2[nd] respondent renewed his license. Therefore, it is beyond the period of 30 days that the license was renewed. Hence, the 2[nd] respondent did not have a valid driving license on the date of accident, but only with effect from 30.12.2005. Therefore, necessarily, there was a violation of the insurance policy conditions. 13. In the light of the violation of the insurance policy conditions and read with the ratio laid down in **Poulose** (supra), the insurance company has the right to pay the compensation amount and recover it from the insured, as provided under Section 149 of the Motor Vehicles Act, 1988. In the above legal and factual matrix, I set aside the award to the extent of complete exoneration of the 3[rd] respondent and direct the 3[rd] respondent to pay the entire compensation amount awarded by the Tribunal as well as the enhanced compensation to be determined by this Court, if any, on question No.2, and then recover the entire amount from the respondents 1 and 2, jointly and severally. I answer Question No.1 accordingly. MACA NO. 1923 OF 2009 7 ## **Question No.2** 14. The appellants had stated that the deceased was a pensioner and an agriculturist by profession. To substantiate their pleading, they had produced Ext.A5 certificate issued by the State Treasury stating that the deceased was drawing a pension of Rs.5,470/-. Nevertheless, the Tribunal deducted one half of the pension amount and fixed the income of the deceased at Rs.2,735/- on the ground that the 1[st] appellant would draw family pension at half the rate of the deceased. I find that the course adopted by the Tribunal to be erroneous and wrong. The income that is to be looked into, to determine the compensation, is the income of the deceased. 15. As the appellants had a case that the deceased was an agriculturist and pensioner, I follow the principles laid down in ## **Ramachandrappa vs. Manager, Royal Sundaram Alliance** **Insurance Company Ltd.** [(2011) 13 SCC 236], and refix the notional monthly income of the deceased at Rs.5,000/-, as the accident occurred in the year 2005. MACA NO. 1923 OF 2009 8 ## **Multiplier** 16. The deceased was aged 63 years at the time of the accident. 17. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is ‘7’. ## **Personal living expenses of the deceased** 18. The appellants were the wife and children of the deceased. They are four in number. In the light of the law laid down in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Loss due to dependency** 19. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.5,000/-, the multiplier at 7 and after deducting one fourth of the compensation towards the personal living expenses of the deceased, I re-fix the compensation for 'loss of dependency' at MACA NO. 1923 OF 2009 9 Rs.3,15,000/-, instead of Rs.1,64,100/- awarded by the Tribunal. ## **Conventional heads of compensation** 20. In paragraph 59.8 of **Pranay Sethi** (supra) it is held that the dependents of the deceased are entitled for compensation under the conventional heads viz., ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 21. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd.** [2021 SCC Online SC 967] and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another** [2021 SCC Online SC 1193], the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), MACA NO. 1923 OF 2009 10 which was rendered on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 21. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- towards ‘funeral expenses’ and an amount of Rs.5,000/- towards ‘loss of consortium’. 22. In the light of the law referred to above, I award the appellants a further amount of Rs.11,500/- under the head ‘funeral expenses' and an amount of Rs.44,000/- towards ‘loss of consortium’ to the 1st appellant alone i.e. an enhancement of Rs.39,000/-. I also award the appellants an amount of Rs.16,500/- under the head ‘loss of estate’. ## **Loss of love and affection** 23. The Tribunal has awarded an amount of Rs.10,000/under the head 'loss of love and affection'. ## 24. In **New India Assurance Co. v. Somwati and others** [(2020) 9 SCC 644], the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of MACA NO. 1923 OF 2009 11 consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of Rs.10,000/awarded under the head 'loss of love and affection'. ## **Pain and sufferings** 25. The Tribunal has awarded an amount of Rs.5,000/under the head ‘pain and sufferings’ to the petitioners. 26. In paragraph 19 of **Sarla Varma** (supra), the Honourable Supreme Court has held that no amount shall be awarded to the dependents of the deceased under the head 'pain and sufferings' in the case of instantaneous death. The said view has been reiterated in **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others-\** [ ((2020) SCC Online 410] **.** Hence, I set aside the amount of Rs.5,000/- awarded under the head 'pain and sufferings' as Gouthaman had died immediately after the accident. 27. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the above cited decisions, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and MACA NO. 1923 OF 2009 12 ## recalculated above and given in the table below for easy reference: **==> picture [460 x 341] intentionally omitted <==** **----- Start of picture text -----**<br> Amounts<br>Sl. Amount modified and<br>awarded by the recalculated<br>Head of claim<br>N Tribunal(in by this<br>o rupees) Court(in<br>rupees)<br>Funeral expenses 5,000 16,500<br>Pain and sufferings 5,000 0<br>Loss of love and<br>10,000 0<br>affection<br>Loss of estate 0 16,500<br>Loss of consortium 5,000 44,000<br>Loss of dependency 1,64,100 3,15,000<br>Total 1,89,100 3,92,000<br>**----- End of picture text -----**<br> In the result, the appeal is allowed by enhancing the compensation by an amount of Rs.2,02,900/- with interest at the rate of 6% per annum from the date of petition till the date of deposit and proportionate cost. In view of the findings of this Court on question No.1, in supercession of the impugned award, I order the 3[rd] respondent to pay the entire amount of Rs.3,92,000/- with interest and cost as fixed above within a MACA NO. 1923 OF 2009 **==> picture [13 x 9] intentionally omitted <==** period of 60 days from the date of receipt of a certified copy of this judgment. In view of the finding on question No.1, the 3[rd] respondent is permitted to pay the entire amount ordered above and recover the same from the respondents 1 and 2 jointly and severely. It is also clarified that if the appellants have not received any amount, as the interim relief, they would be entitled to receive the entire amount as ordered above. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants, after deducting their liability, if any towards court fee, in the ratio of 40:20:20:20 and in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** rkc/10.02.22