Vasanthi and others v. Maneesh and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944 MACA NO. 807 OF 2013 ``` ``` AGAINST THE AWARD DATED 15.11.2012 IN O.P(M.V) NO.979/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA ``` ## **`APPELLANTS/PETITIONERS:`** - `1 VASANTHI, W/O.LATE MOHANAN NAIR, THAZHATHETHU HOUSE, PALAVELI, RAMAPURAM P.O.` - `2 SANAL,S/O.LATE MOHANAN NAIR, THAZHATHETHU HOUSE, PALAVELI, RAMAPURAM P.O.` - `3 SANITHA, D/O.LATE MOHANAN NAIR, THAZHATHETHU HOUSE, PALAVELI, RAMAPURAM P.O.` - `4 SABITHA, D/O.LATE MOHANAN NAIR, THAZHATHETHU HOUSE, PALAVELI, RAMAPURAM P.O.` ``` BY ADV SRI.ABRAHAM MATHEW (VETTOOR) ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 MANEESH, S/O.PADMANABHAN, THEKKEPARAYIL HOUSE, VAIKATHUMALA BHAGOM, KOODAPPULAM KARA, VELLIYEPPALLY VILLAGE, PIN 686 574.` - `2 RADHAKRISHNAN, S/O.GOPALAPILLA, THAZHETHOTTIYIL HOUSE, ARAKULAM, THODUPUZHA, PIN - 685 591.` - `3 THE NATIONAL INSURANCE CO. LTD. REP. BY ITS DIVISIONAL MANAGER, KOTTAYAM, PIN 689 001.` - `4 MANOJ, 7/249 KURINJILAKATTU KADALICKAD, MUVATTUPUZHA - 686 670.` - `BY ADVS. R2 BY SRI.B.JAYAPARAKASH R3 BY P.G. GANAPPAN, SC` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY`** ``` HEARD ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA.No.807 of 2013 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 28[th] day of November, 2022`** This Appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Pala (for short ‘the Tribunal’) on 15.11.2012 in O.P.(MV) No.979/2009. The appellants are petitioners who are none other than legal representatives of one Mr.Mohanan Nair who succumbed to the injuries sustained in a motor accident. 2. For the sake of clarity, the parties to this appeal will hereinafter be referred to as the Petitioners and respondents 1 to 4 in accordance with their status before the Tribunal. 3. The averments of the petitioners are to the effect that Mr.Mohanan Nair, the husband of the 1[st] petitioner and father of rest of the petitioners, while travelling in an autorickshaw bearing Registration Number KL-6/A 1799 sustained injuries due to the rash and negligent driving of the same by its driver. Due to the serious injuries sustained by Mr.Mohanan Nair, he was transported to Devamatha Hospital, Koothattukulam for treatment and further to Chazhikkattu Hospital, Thodupuzha, ``` MACA.No.807 of 2013 ``` ``` 3 ``` but succumbed to the fatal injuries during the course of treatment. According to the petitioners, the deceased was a rubber tapper aged 54 years and earning `7,500/- monthly. Incorporating the driver, owner and the insurer and the present registered owner as respondents 1 to 4, the original petition on hand is moved. A sum of `8,00,000/- was also claimed as compensation from respondents jointly and severally. 4. Before the Tribunal 1[st] respondent did not turn up to contest the Original petition. Respondents 2, 3 and 4 filed separate written statements. According to the 2[nd] respondent he was not the registered owner of the vehicle at the relevant time of the motor accident. According to him, he had purchased the autorickshaw about 10 years ago but was sold it to one Mr.Unni M.K., Mulamoottil House, Arakulam, Moolamattom and therefore, was not a necessary party in the Original Petition. The age, occupation and the monthly income of the deceased were disputed. 5. The 3[rd] respondent filed written statement admitting Insurance coverage of the autorickshaw in the name of the 4[th] respondent as on date of the motor accident. It was contended ``` MACA.No.807 of 2013 ``` ``` 4 ``` that the 1[st] respondent, the driver of the Autorickshaw at the relevant time of the motor accident was not holding a valid and effective driving licence to drive it. The vehicle was contended as devoid of a permit and thus, seeks for exoneration from its liability to indemnify the insured. 6. Based on the contention raised by the 2[nd] respondent, the registered owner of the vehicle was impleaded as additional 4[th] respondent. Additional 4[th] respondent has filed written statement contending that the vehicle was conveyed to one Mr.Abhilash K.C at Moovattupuzha on 26.03.2009 after executing a sale agreement and therefore, he is not liable to pay any amount as compensation to the petitioners. 7. Before the Tribunal Ext.A1 to A8 were marked in evidence from the side of the petitioners. On the side of the respondents, the 4[th] respondent was examined as RW1 and Exts.B1 and B2 were marked. On appreciation of the entire evidence, the Tribunal found negligence on the part of the driver of the autorickshaw, the 1[st] respondent and arrived at a sum of `3,06,000/- as the compensation payable. The 3[rd] respondent being the insurer of the offending vehicle was directed to deposit ``` MACA.No.807 of 2013 ``` ``` 5 ``` the amount in favour of the petitioners with interest for the sum at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. Since it was established before the Tribunal that the driver of the Autorickshaw was not holding a valid driving licence at the relevant time of the motor accident, the 3[rd] respondent was permitted to recover the compensation after depositing it in favour of the petitioners, from the registered owner, who stands arrayed in the Original Petition as additional 4[th] respondent. 8. It was contended by Sri.Abraham Mathew, the learned counsel for the petitioners that the Tribunal is unjustified in opting to fix `4,000/- as the monthly income on a notional basis. Since the motor accident was occurred in the year 2009, there is every reason for re-fixing the monthly income on the basis of the fixation adopted by the Apex Court in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236] . The learned counsel for the petitioners canvassed also for awarding reasonable sums as compensation towards loss of estate, funeral expenses and loss of consortium as directed by the Constitution Bench of the Apex ``` MACA.No.807 of 2013 ``` ``` 6 ``` Court in National Insurance Company Limited v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)] . Thus, he canvassed for interference with the impugned award. The learned counsel also canvassed for considering loss of future prospects in the case on hand. 9. The learned counsel for the 3[rd] respondent contended on the contrary that the monthly income was fixed notionally as `4,000/- by the Tribunal in the absence of any evidence adduced by the petitioners to establish that and therefore, interference and modification of the monthly income is not at all warranted. 10. The 3[rd] respondent has also invited this Court’s attention to the impugned award and contended that compensation was awarded by the Tribunal towards loss of love and affection and pain and suffering in dis-regard of the nonentitlement of the petitioners to receive that and canvassed for deduction of those from the total compensation found payable in addition in the appeal on hand. The learned counsel for the respondent has also pointed out that the deceased having been survived by four family members, 1/4[th] is liable to be deducted towards personal expenditure, rather than 1/3[rd] stands ``` MACA.No.807 of 2013 ``` ``` 7 ``` deducted by the Tribunal. 11. As per the averments of the petitioners in the Original Petition, the deceased was a rubber tapper. The motor accident in question being occurred in the year 2009, this Court finds it reasonable to refix `7,000/- as the monthly income of the deceased. The Tribunal took the age of the deceased at the relevant time of his death as 54 years, and that being not under challenge is maintained. 11 is the multiplier applicable for the age of 54 years and therefore, that is substituted in the place of ‘8’ wrongly adopted by the Tribunal. 10% is liable to be added to the monthly income in consideration of his loss of future prospects. Thus `7,700/- (`7,000/- +10% of `7,000/-) is arrived at. The deceased was survived by four members and therefore, 1/4[th] is liable to be deducted in consideration of personal expenditure liable to be met with by the victim, had he been alive. When re-assessed with the above modified factors, `7,62,300/- (`7,700x12x11x3/4) is arrived at. `2,56,000/- stands awarded by the Tribunal when deducted therefrom, the petitioners will get `5,06,300/- as additional compensation towards loss of dependency. As compensation ``` MACA.No.807 of 2013 ``` ``` 8 ``` towards funeral expenses and loss of estate, `5,000/- each was already awarded by the Tribunal. Therefore, the petitioners will get `11,500/- under each of the heads. As compensation towards loss of consortium, each of the four petitioners are entitled to get `44,000/- and thus, `1,76,000/- is arrived at. `10,000/- stands awarded by the Tribunal when deducted form the above sum, petitioners will get `1,66,000/- as additional compensation towards loss of consortium. In view of the disentitlement of the petitioners for getting compensation towards pain and suffering and loss of love and affection, `10,000/- and `15,000/- stands awarded is deducted and thus, `6,70,300/(`5,06,300/- + `11500/- +`11500/- +`1,66,000/-) – (`10,000/+`15,000/- ) is arrived at as the total additional compensation. 12. Thus, the petitioners will get `6,70,300/- (Rupees Six Lakhs Seventy Thousand and Three Hundred only) as additional compensation. The said amount will carry interest at the rate of 7.5 % per annum from the date of filing of the original petition till the date of realisation. The 3[rd] respondent being the insurer shall pay the amount now arrived at with interest fixed on it as well as the original compensation with interest fixed as per the ``` MACA.No.807 of 2013 ``` ``` 9 ``` impugned award (if not already paid) to the petitioners within a period of two months from the date on which a certified copy of the judgment is received in accordance with Circular No.03/2019 issued by this Court on 06.09.2019. In view of the breach of policy conditions by the insured stands established before the Tribunal and not challenged by the driver and insured of the offending vehicle, the 3[rd] respondent is permitted to recover the amount after payment to the petitioners form the 1[st] and the Additional 4[th] respondents jointly and severally. The appeal on hand being filed with a delay of 54 days, on the basis of order passed by this Court on 16.08.2022, the 3[rd] respondent is exonerated from liability to pay interest for those days. MACA stands allowed accordingly. Sd/- MARY JOSEPH JUDGE ``` MJL ```