Thressia and Jino v. P.L. Ouseph and National Insurance Company Limited

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** # **`WEDNESDAY, THE 21[ST] DAY OF DECEMBER 2022/30TH AGRAHAYANA, 1944`** **==> picture [174 x 9] intentionally omitted <==** ``` (AGAINST THE AWARD IN OP(MV)No.891/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA) ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1THRESSIA, W/O.OUSEPH, PAYYAPILLY HOUSE, PUTHENCHIRA P.O., MUKUNDAAPURAM TALUK, THRISSUR DISTRICT. 2JINO, S/O.OUSPEH, PAYYAPILLY HOUSE, PUTHENCHIRA P.O., MUKUNDAAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1P.L. OUSEPH, S/O.LONAPPAN, PAYYAPPILLY HOUSE, PUTHENCHIRA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680 682. 2NATIONAL INSURANCE COMPANY LIMITED. IRINJALAKUDA-680 307. BY ADV SMT.DEEPA GEORGE SMT. ELIZABETH SATHISH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2022, THE COURT ON 21.12.2022 DELIVERED THE FOLLOWING: ``` MACA No.2612/2012 2 ## JUDGMENT (Dated: 21[st] December, 2022) The appellants are the petitioners in O.P.(MV)No.891 of 2007 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. The original petition for compensation was filed under Sections 166 and 140 of the Motor Vehicles Act. 2. Brief facts of the case are as follows: The petitioners are the mother and the brother of deceased Jincy. On 18.08.2006 at about 8.45 pm, while the deceased Jincy was a passenger in an autorickshaw bearing Reg.No.KRH-2860 driven by the first respondent through Kolkunnu - Kuzhikattussery public road, while giving way to another vehicle coming from the opposite direction, the driver lost control of the vehicle and fell into a ditch on the southern side of the road, as a result of which the deceased sustained bodily injuries and she was taken to Mariam Theresa Hospital, Kundayi, and St. James hospital, Chalakudy, and MACA No.2612/2012 3 thereafter admitted at Medical College Hospital, Thrissur, where she died on 23.08.2006. 3. The first respondent is the owner of the vehicle and the second respondent is the insurer. The first respondent was ex-parte and 2[nd] respondent filed a written statement admitting the valid insurance policy of the autorickshaw. It was contended that since the petition is filed under Section 166 of the M.V. Act, the legal heir of the unmarried child is the father who is the first respondent and the petitioners being the mother and brother of the deceased are not legal heirs under Section 42 of the Indian Succession Act. Petitioners will be entitled to 50% of the compensation as the 2[nd] respondent’s liability will extend to 50% as the tortfeasor is the father of the child. The deceased had no income or job. The claim is highly exorbitant and prayed for the dismissal of the petition. 4. The Tribunal, relying on Exts.A1 to 15, B1 and the oral evidence of PW1 held that the petitioners are not legal MACA No.2612/2012 4 representatives and that the deceased was a gratuitous passenger and therefore, the claim was dismissed. Aggrieved by the dismissal of the petition, this appeal is filed. 5. The counsel for the appellants/petitioners submits that the appellants are the legal representatives of the deceased Jincy, though they may not be legal heirs of the deceased. As per Section 166 of the M.V. Act, the application for compensation arising out of a motor accident can be made by: (a) by the person who has sustained an injury or (b) by the owner of the property, or (c) where death has resulted from the accident by all or any of the legal representatives of the deceased or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. 6. A legal representative means, a person who in law represents the estate of the deceased person and includes any person, all persons in whom legal right to receive compensatory benefit vests. A legal representative may also include any person MACA No.2612/2012 5 who intermeddles with the state of the deceased. Such a person does not necessarily have to be a legal heir. A legal heir may also be a legal representative. The claim petition is filed by the mother as well as the brother of the deceased. It cannot be construed that they are not the legal representatives of the deceased. They may not be legal heirs as per the Indian Succession Act. Once they fit into the definition of the legal representative, they can very well maintain the application under Section 166 of the M.V. Act, [ _See Jayasree N. and Others v. Cholamandalam MS General Insurance Company Ltd. (2021 (6) KHC 163_ ] . So the finding entered by the Tribunal that the petitioners are not the legal representatives of the deceased is not correct and the same is reversed and it is held that they are legal representatives of the deceased and entitled to file a claim petition under Section 166 of the M.V. Act. 7. The second reason stated by the Tribunal for dismissing the petition is that the petitioners have no case that the deceased Jincy was not a fare-paying passenger and MACA No.2612/2012 6 therefore she is a gratuitous passenger and cannot be a third party. It is true that the vehicle involved in the accident was a passenger carrying commercial vehicle. Ext.B1 is the insurance policy at the time of the accident. Going by the schedule of premium, an amount of Rs.555/- is paid as additional liability for passengers. Section 147 of the M.V. Act prescribes the requirement of policies and limits of liability. ## Section 147(1)(b)(ii) reads as follows: _(1) xxxxx (a) xxxxx_ _(b) xxxxx (i) xxxxx_ _(ii) against the death of or bodily injury to any passenger of a transport vehicle, except gratuitous passengers of a goods vehicle, caused by or arising out of the use of the motor vehicle in a public place._ It only excludes gratuitous passengers of a goods vehicle. Passenger is defined in Rule 2(P) of the Kerala Motor Vehicle Rules, 1989 as follows: “ _Passenger for the purpose of these rules means, any person travelling in a public service vehicle other than the driver or the conductor or an employee of the permit holder while on duty.”_ MACA No.2612/2012 7 8. Thus, the deceased can be treated as a passenger in a public service vehicle. When the additional premium is paid for the liability of passengers, the insurance company cannot escape from the liability arising out of a motor accident, even if the negligence is on the part of the driver of the same vehicle. Whether the driver of the vehicle is the father of the deceased or not, does not make out any difference as far as the claim of compensation is concerned. Hence, it can be safely concluded that the petitioners can claim compensation for the death of Jincy even if there is no evidence to show that she was a fare-paying passenger. Hence, the second reason, the Tribunal for rejecting the application cannot be sustained and the same is also set aside. 9. Thus, it is held that, the petitioners can maintain an application under Section 166 of the M.V. Act for the death of Jincy. As far as the claim for compensation is concerned, the Tribunal has already calculated the compensation under various heads and arrived at a total compensation of Rs.1,93,000/- with MACA No.2612/2012 8 7.5% interest per annum from 14.08.2007 till realisation. The counsel further argues that the amount of compensation awarded is not reasonable and hence requires enhancement. 10. The counsel for the appellants submits that as far as the funeral expense is concerned, only Rs.2,000/- was awarded. But going by the dictum in _National Insurance Company v. Pranay Sethi (2017) 16 SCC 680_ , the appellants are entitled to Rs.15,000 + 10% increase in every 3 years. 11. For pain and suffering, the Tribunal has awarded Rs.10,000/- against the claim of Rs. 50,000/-. The counsel for the respondents submits that when the injured has succumbed to the injuries no compensation for pain and suffering can be awarded. As per the decision reported in _Jyni v. Raphel P.T., (2016 (2) KHC 870)_ , `a` conventional amount of Rs.5,000/- to Rs.15,000/- can be awarded. Hence, the Tribunal has rightly awarded Rs.10,000/- as compensation for pain and suffering, as the death occurred 5 days after the date of accident. MACA No.2612/2012 9 12. For loss of dependency, the appellants claimed that the deceased was aged 21 years and earning a monthly income of Rs.3,300/- by doing tailoring work. In this appeal, I.A.No.1 of 2022 was filed for amending the original petition and for substituting the figures Rs.3,300/- with Rs.5,500/-, which has been allowed as per order dated 21.12.2022 in I.A.No. 1 of 2022. For loss of dependency, the Tribunal awarded Rs.1,80,000/-, though there is no proof to show that the deceased was earning an income. Going by the decision reported in _Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [(2011) 13 SCC 236]_ , for an accident that happened in the year 2006, Rs. 5,500/- can be taken as the monthly income. Since the deceased was aged 21 years and employed as a tailor, she is entitled to 40% towards future prospects. Hence, the monthly income can be fixed as Rs.5500 + 40% = 7,700/-. The multiplier is 18 since the deceased was unmarried and deducted ½ towards her personal and living expenses. Hence the compensation for loss of dependency can be calculated as:7,700x18x12x1/2 = 8,31,600/-. MACA No.2612/2012 10 13. For loss of estate, the tribunal did not grant any amount under the said head. The appellants are entitled to Rs.15,000 + 10% increase = 16,500/-. For transportation expenses, the Tribunal awarded a sum of Rs.1,000/-, which is just and reasonable. 14. For loss of consortium, the first appellant mother alone is entitled to the compensation of Rs.40,000+10% increase = 44,000/-., as the father though otherwise entitled in the facts and circumstances of this case being the _tort feasor_ is not entitled. Accordingly, the following enhancements are made to the award passed by the Tribunal: |_Sl. No._|_Head of Claim_|_Amt._<br>_Awarded_<br>_by_<br>_Tribunal (Rs.)_|_Amt. Awarded in_<br>_appeal (Rs.)_| |---|---|---|---| |_1._|_Loss of consortium_|_……_|_44,000_| |_2._|_Loss of estate_|_……._|_16,500_| |_3._|_Loss of dependency_|_1,80,000_|_8,31,600_| |_4._|_Funeral expenses_|_2,000_|_16,500_| |_5._|_Transportation_<br>_expenses_|_1,000/-_|_1,000/-_| |_6._|_Pain and suffering_|_10,000/-_|_10,000/-_| ||_Total_|_1,93,000_|_9,19,600_| MACA No.2612/2012 11 _The amount awarded by the tribunal along with the enhancement would come to Rs. 9,19,600/-._ Though the Tribunal has calculated the compensation payable to the appellant as Rs.1,93,000/-, the Tribunal did not award the compensation as it was held being a gratuitous passenger, the appellants are not entitled to the compensation and the petition was dismissed. I already held that the dismissal of the claim petition is bad in law and held that appellants are entitled to compensation. The appellants are entitled for the amount awarded by the Tribunal along with the enhancement given by the court. In the result, the appeal is allowed with an enhanced compensation of Rs.9,19,600/- (Rupees Nine lakhs nineteen thousand and six hundred only) with 7.5% interest per annum from 14.8.2007 till reasliation. The claimants will have to pay court fee for the total amount awarded, which will be recovered by the Tribunal, before disbursing the amount MACA No.2612/2012 12 deposited. If any amounts have already been paid, the same shall be granted set off. The appellants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. Appeal allowed as above. _Sd/-_ BASANT BALAJI, JUDGE ss