Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942 MACA.No.2481 OF 2009 AGAINST THE AWARD IN OPMV 206/2000 DATED 18-04-2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS , KATTAPPANA APPELLANT/PETITIONERS: 1 DEVAKIYAMMA, W/O LATE KUTTAN NAIR, PUTHENPURACKAL HOUSE, MEENAKSHY BRIDGE,, MEPPADY POST, VELLARMALA AMSOM, VYTHIRI TALUK, WAYANAD DISTRICT. 2 MOHANAN S/O. LATE KUTTAN NAIR DO-DO- 3 PREMALATHA D/O. LATE KUTTAN NAIR DO-DO- 4 CHANDRIKA D/O. LATE KUTTAN NAIR DO-DO- BY ADV. SMT.CELINE JOSEPH RESPONDENT/S:
1 SHERIF CHOORALMALA, VELLARMALA POST, MEPPADI (VIA), WAYANAD DISTRICT. 2 VAHAB S/O. HASSAN PADINJARAKARA HOUSE VELLARMALA POST MEPPADI VIA, VYTHIRI TALUK,, WAYANAD DISTRICT. 3 THE NATIONAL INSURANCE CO. LTD. BRANCH OFFICE, KALPANA SHOPPING COMPLEX, MAIN ROAD, KALPETTA. 4 SHERIF S/O. VAHAB PADINJARAKARA HOUSE VELLARIMALA.P.O., MEPPADI VIA VYTHIRI TALUK, (NOW NO MORE) REPRESENTED BY FATHER VAHAB, S/O.HASSAN, PADINJARAKARA HOUSE, DO-DO- R1 BY ADV. M.R.JAYALATHA R1 BY ADV. SRI.GEORGE SEBASTIAN
OTHER PRESENT: SRI.E.M.JOSEPH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2021, ALONG WITH MACA.2589/2009, MACA.2589/2009(B), THE COURT ON 08-03-2021 DELIVERED THE FOLLOWING: & 2589 of2009 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942 MACA.No.2589 OF 2009 AGAINST THE AWARD IN OPMV 205/2000 DATED 18-04-2008 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA APPELLANT/PETITIONER: MOHANAN, S/O KUTTAN NAIR PUTHENPURACKAL HOUSE, MEENAKSHY BRIDGE,, MEPPADI POST, VELLARMALA AMSOM, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SMT.CELINE JOSEPH RESPONDENT/RESPONDENTS:
1 SHERIF, S/O MOOSA, THETTAMPURAM HOUSEM CHOORALMALA, VELLARMALA POST, MEPPADI VIA, WAYANAD DISTRICT. 2 VAHAB S/O. HASSAN PADINJARAKARA HOUSE VELLARMALA POST, MEPPADI VIA,VYTHIRI TALUK,, WAYANAD DISTRICT. 3 THE NATIONAL INSURANCE CO.LTD BRANCH OFFICE, KALPANA SHOPPING COMPLEX,, MAIN ROAD, KALPETTA. 4 SHERIF S/O.VAHAB PADINJARAKARA HOUSE, VELLARIMALA PO, MEPPADI VIA, VYTHIRI TALUK, NOW NO MORE, REPRESENTED BY FATHER VAHAB,S/O.HASSAN,, PADINJARAKARA HOUSE DO..DO... R1 BY ADV. SMT.M.R.JAYALATHA R1, R3 BY ADV. SRI.E.M.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-032021, ALONG WITH MACA.2481/2009, THE COURT ON 08-03-2021 DELIVERED THE
FOLLOWING: & 2589 of2009 3 P.V.KUNHIKRISHNAN, J ----------------------------------------------- M.A.C.A. Nos.2481 & 2589 of 2010 -------------------------------------- Dated this the 8th day of March, 2021
JUDGMENT
These two appeals are connected and therefore, I am disposing these two appeals by a common judgment.
2. MACA No.2481/2009 is filed by the claimants in O.P.(M.V.) No. 206/2000 and MACA No.2589/2000 is filed by the claimant in O.P.(M.V.) No. 205/2000 on the file of the Motor Accidents Claims Tribunal, Kalpetta.
3. The short facts are like this: The claimant in O.P.(M.V.) No.205/2000 was travelling in a jeep
bearing registration No. KL-10 F 3899 on 29.3.2000 at 7.30 am., when the jeep reached near the place of occurrence, the jeep overturned and thereby he sustained injuries. The deceased Kuttan Nair was also travelling in the jeep and he also sustained injuries and he succumbed to the injuries. The legal heirs of Kuttan Nair are the claimants in O.P.(M.V.) No.206/2000 (hereinafter the parties are mentioned in accordance to their rank before the Tribunal).
4. According to the claimants, the accident occurred due to the rash and negligent driving of the jeep by the 1 st respondent. & 2589 of2009 4
Respondent Nos. 2 and 3 are the owner and insurer of the Jeep respectively at the time of the accident. According to the claimants, all the respondents are jointly and severally liable to pay the compensation to the claimants. Both the cases were tried together and a common award is passed by the Tribunal.
5. To substantiate the case, one witness was examined on the
side of the claimants in O.P.(M.v.) No. 205/2000 and Exts. A1 to A7 were marked as exhibits. One witness was examined on the side of the respondents and Exts.B1 to B3 were also marked on the side of the respondents. In O.P.(M.V.) No.206/2000 also, one witness was examined on the side of the claimants and Exts.A1 to A6 were marked. Two witnesses were examined on the side of the respondents and Exts. B1 to B5 were also marked. After going through the evidence and documents, the Tribunal found that the accident occurred due to the rash and negligent driving of the Jeep by respondent No.4. Tribunal accepted the case of the insurer that the 1st respondent was not driving the jeep. But, the Tribunal also found that the respondent No.4 had no driving licence at the time of accident. So, 3rd respondent is exonerated from the liability and ordered that the respondent Nos. 2 and 4 are jointly and severally liable to pay the compensation. Aggrieved by this finding and also the quantum of compensation, the claimants filed these two appeals.
6. Heard counsel for the claimants and the counsel for the & 2589 of2009 5 Insurance Company.
7. The counsel for the claimants submitted that if there is no
licence to the driver of the offending vehicle, the Tribunal ought to have issued direction to pay the amount by the Insurance Company after giving liberty to the Insurance Company to recover the amount. The counsel relied the judgment of the Apex Court in Manuara Khatun and others v. Rajesh Kr. Singh & Ors. [2017 (4) SCC 796] and also the judgment of this Court in United India Insurance Company Ltd. v. Kasthurbhai and others [2013 (3) KHC 385]. The counsel also submitted that the quantum of compensation granted by the Tribunal is too low in the light of several judgments of the Apex Court.
8. The counsel for the Insurance Company submitted that the Tribunal after considering the entire oral and documentary evidence passed the impugned award and there is nothing to interfere with the impugned awards.
9. As far as the exoneration of the Insurance Company is concerned, according to me, this point is covered by the Apex Court
judgment in Manuara Khatun’s case (supra). The relevant portion is
extracted hereunder :
“14. The only question, which arises for consideration in these appeals, is whether the appellants are entitled for an order against the Insurer of the offending vehicle, i.e., (respondent No. 3) to pay the awarded sum to the appellants and then to recover the said amount from the insured (owner of the offending vehicle - Tata Sumo) - respondent No. 1 in the same proceedings.
& 2589 of2009 6
15. The aforesaid question, in our opinion, remains no more
resintegra. As we notice, it was subject - matter of several decisions of this Court rendered by three Judge Bench and two Judge Bench in past, viz., National Insurance Co. Ltd. v. Baljit Kaur & Ors., 2004 (2) SCC 1, National Insurance Co. Ltd. v. Challa Upendra Rao & Ors., 2004 (8) SCC 517, National Insurance Co. Ltd. v. Kaushalaya Devi & Ors., 2008 (8) SCC 246, National Insurance Co. Ltd. v. Roshan Lal, [Order dated 19/01/2007 in SLP(c) No. 5699 of 2006], and National Insurance Co. Ltd. v. Parvathneni & Anr., 2009 (8) SCC 785.
16. This question also fell for consideration recently in Manager,
National Insurance Company Limited v. Saju P. Paul and Another, (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of S.147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on
facts that since the victim was travelling in offending vehicle as
"gratuitous passenger" and hence, the Insurance Company cannot be
held liable to suffer the liability arising out of accident on the strength
of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover"
17. Justice R. M. Lodha (as His Lordship then was and later became
CJI) speaking for the Bench held in paras 20 and 26 as under: "20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein).
26. The pendency of consideration of the above
questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, 2004 (2) SCC 1 and Challa Upendra Rao, 2004 (8) SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01/08/2011 (National Insurance Co. Ltd. v. Saju P. Paul, SLP © No. 20127 of 2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar
facts of the case in hand, we are satisfied that the
claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this & 2589 of2009 7 Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao (supra)."
10. In the light of the above judgment of the Apex Court, the
3rd respondent can be directed to pay the compensation and 3 rd respondent can also given liberty to recover the amount from the 2 nd respondent. As far as the quantum of compensation is concerned, I will consider the two cases separately. First, I will consider MACA No.2481/2009 which is connected to O.P.(M.V.) No.206/2000. It is a case in which the claimants are the legal heirs of the deceased Kuttan Nair. The income of the deceased is fixed as Rs.2,000/-, while assessing the dependency compensation. Admittedly, the accident happened in the year 2000. Considering the dictum laid down in Ramachandrappa v. The Manager, Royal Sundaram Alliance
Insurance Company Limited [AIR 2011 SC 2951], the monthly income of the deceased can be enhanced. It can be safely fix as Rs.3,500/-. Moreover, 10% is to be added towards future prospects in the light of the decision in National Insurance Co. Ltd. v. Pranay Sethi, [2017 (5) KHC 350]. Therefore, the monthly income is to be re- fixed as Rs.3,850/-. Based on the above monthly income, the dependency compensation is to be re-assessed. The correct multiplier
& 2589 of2009 8 is '11'. The dependency compensation is re-assessed in the following manner : 3,850 x 12 x 11 x 2/3 = Rs. 3,38,800/-
11. From the above amount, Rs.84,000/- which is the amount already granted, is to be deducted. Therefore, the balance amount will be Rs.2,54,800/-.
12. As far as the pain and suffering is concerned, no amount is
paid. I think an amount of Rs.5,000/- is entitled by the claimants. Towards funeral expenses, the claimants are entitled Rs.10,000/- more. Towards the head loss of estate, the claimants are entitled another amount of Rs.15,000/-. As far as loss of consortium is
concerned, no amount is paid. The counsel for the Insurance Company submitted that an amount of Rs.30,000/- is paid towards love and affection. The counsel for the claimants submitted that the claimants are entitled Rs.40,000/- each towards loss of consortium in the light of the judgment in Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others [(2018) 18 SCC 130]. I think there is force in the argument of the appellants. Therefore, the loss of consortium entitled by the appellants is Rs.1,60,000/- (40,000 x 4) - Rs.30,000 = Rs.1,30,000/-. Therefore, the enhanced compensation entitled by the claimants can be summarized like this :
& 2589 of2009 9 Sl.No. Head Amount 1 Loss of dependency Rs.2,54,800/- 2 Pain and suffering Rs.5,000/- 3 Funeral expenses Rs.10,000/- 4 Loss of estate Rs.15,000/- 5 Loss of consortium Rs.1,30,000/- Total Rs.4,14,800/- MACA 2589/2009
13. In this case, the appellant/claimant is the injured. He
sustained injuries. He was engaged in construction of well and he claimed a monthly income of Rs.4,500/-. According to the counsel, since, the income of the deceased in the connected case is fixed as Rs.3,850/-, a similar approach may be taken in this case. I think, even a coolie will get Rs.3,850/- during the year 2000. Therefore, the monthly income of the appellant in this case also can be taken as Rs.3,850/-. Therefore, the disability compensation is to be re-assessed in the following manner :
3,850 x 12 x 17 x 3/100 = Rs.23,562/-
14. From the above amount, the amount already paid is to be deducted. Then, it will be Rs.10,710/- (23,562-12,852).
15. The Tribunal granted an amount of Rs.2,000/- towards loss of earning. I think an amount of Rs.1,850/- is also entitled by the claimant towards loss of earning. As far as transport to the hospital, & 2589 of2009 10
only Rs.500/- is granted. I think another amount of Rs.500/- can be allowed on this head. Extra nourishment, the claimant is entitled another Rs. 500/-. Towards pain and suffering, Rs.5,000/- is awarded by the Tribunal. I think another Rs.5,000/- can be granted in the light of the fact that the claimant sustained serious injuries. Therefore, the
enhanced amount entitled by the appellant/claimant in MACA No.2589/2009 can be summarized like this : Sl.No. Head Amount 1 Compensation for disability Rs.10,710/- 2 Loss of earning Rs.1,850/- 3 Transport to hospital Rs. 500/- 4 Extra Nourishment Rs.500/- 5 Pain and suffering Rs.5000/- Total Rs.18,560/-
16. Therefore, the appellant is entitled an enhanced compensation of Rs.18,560/- with interest. Hence, these appeals are disposed in the following manner. 1) The impugned awards are modified and the 3 rd respondent,
in both these appeals is directed to pay the compensation awarded by the Tribunal and the enhanced compensation awarded in these appeals and thereafter, the 3rd respondent can recover the above amount from the 2nd respondent.
(2) The appellants in MACA Nos. 2481/2009 and 2589/2009 are & 2589 of2009 11
entitled an enhanced compensation of Rs.4,14,800/- and Rs.18,560/- respectively. The appellants are entitled interest at the rate of 7% from the date of application till realization.
(3) But I make it clear that in the light of the order dated 13.2.2017 in the delay condonation petition, 297 days are to be excluded while assessing the interest in both the cases. sd/- P.V.KUNHIKRISHNAN JUDGE SKS