Ashly V.Thomas @ Mrs. Ashly Sunil vs Aneesh A.G. @ Aneesh
2021 Latest Caselaw 13509 Ker

MACA No.3045 of 2015               1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
                       MACA NO. 3045 OF 2015
AGAINST THE JUDGMENT IN OP(MV) No. 654/2013 OF ADDITIONAL MOTOR
              ACCIDENTS CLAIMS TRIBUNAL-1 , KOTTAYAM
APPELLANTS/PETITIONERS:

     1      ASHLY V.THOMAS @ MRS. ASHLY SUNIL
            W/O.LATE SUNIL K.GEORGE @ SUNIL, AGED 37 YEARS.

     2      AMAL GEO SUNIL (MINOR)
            S/O.LATE SUNIL K.GEORGE @ SUNIL, AGED 13 YEARS.

     3      EMEY ANNA SUNIL MINOR
            D/O.LATE SUNIL K.GEORGE @ SUNIL, AGED 9 YEARS.

     4      ULAHANNAN GEORGE S/O.ULAHANNAN
            AGED 65 YEARS.

     5      MRS. ANNAMMA GEORGE W/O.GEORGE
            AGED 64 YEARS.

            (MINOR APPELLANTS 2 AND 3 REPRESENTED HEREIN BY
            THEIR GUARDIAN MOTHER THE 1ST APPELLANT),

            ALL ARE RESIDING AT KANNANTHURUTHIL HOUSE, PARIYARAM
            P.O, KOTTAYAM DISTRICT.

            BY ADVS.
            SRI.T.C.SURESH MENON
            SRI.P.S.APPU



RESPONDENTS/RESPONDENTS:

     1      ANEESH A.G. @ ANEESH
            S/O.GEORGE, RESIDING AT ATTACHIRA HOUSE, KADAMURI
            BHAGOM, PARIYARAM P.O, KOTTAYAM - 686 021.

     2      THE UNITED INDIA INSURANCE COMPANY LIMITED
            DIVISIONAL OFFICE, GEETHA TRADE CENTRE,
 MACA No.3045 of 2015                 2

             NAGAMPADOM,KOTTAYAM - 686 001.

     3       SHERIN K. CHERIAN
             RESIDING AT KOLAMKODU HOUSE, ERAVINALLOOR
             P.O.,KOTTAYAM - 686 011.

             FOR R2 BY ADVS.
             SRI.JOHN JOSEPH VETTIKAD
             SRI.C.JOSEPH JOHNY




      THIS   MOTOR     ACCIDENT   CLAIMS   APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA No.3045 of 2015                      3

                                      JUDGMENT

This is an appeal submitted by the claimants in

OP(MV)No.654 of 2013, on the file of the Additional Motor

Accidents Claims Tribunal-I, Kottayam. The claim petition

was filed by them for compensation for the death of one

Sunil in a motor accident occurred on 29.8.2012. The

deceased is the husband of the 1st appellant, father of

appellants 2 and 3, and the son of respondents 4 and 5.

According to the appellants, the accident occurred when

the scooter ridden by the deceased along with a pillion

rider, was hit by another scooter coming from the opposite

side. It was contended that, the accident occurred due to

the negligence of the rider of the other scooter which was

owned by the 1st respondent and insured with the 2nd

respondent. The 3rd respondent was impleaded as according

to the claimants, the vehicle stood registered in his

name at the time of the accident. The claim petition was

filed in the above circumstances.

2. The 1st respondent had chosen not to contest the

matter. The 2nd respondent Insurance Company filed a

written statement admitting the coverage of policy, but

raised a contention that the rider/1st respondent was not

having a valid license at the time of the accident. On

that ground they sought for exoneration from the

liability. The 3rd respondent filed a written statement

contending that as on the date of accident, he was not the

owner. According to him, he sold the vehicle to the 1 st

respondent on 19.07.2012 and the accident occurred on

29.8.2012. He contends that he cannot be mulcted with any

liability.

3. The evidence in this case consists of Exts.A1 to

A13 from the side of the appellants/petitioners and from

the side of respondents Exts.B1 and B2 were marked.

4. After the trial, the Tribunal came to a finding

that the accident occurred due to the rash and negligent

driving of the 1st respondent. With regard to the liability

of the 3rd respondent, the Tribunal came to the finding

that as the vehicle stood transferred prior to the date of

accident, he is not liable to pay any compensation and

hence he was exonerated from the liability. Similarly, the

2nd respondent Insurance Company was also exonerated from

the liability on the ground that, the 1st respondent was

riding the scooter without any valid driving license. The

quantum of compensation was fixed as Rs.14,77,000/- and

the 1st respondent was directed to deposit the said amount

along with interest at the rate of 9% per annum.

5. Being aggrieved by the said award, this appeal

is filed by appellants/claimants. Heard the learned

counsel for appellants and the learned counsel for the 2 nd

respondent.

6. Learned Counsel for the appellants attacks the

findings of the Tribunal in exonerating the Insurance

Company and also on the question of the quantum of

compensation. Regarding the exoneration of the 2nd

respondent, he contents that, existence of valid policy is

admitted by the 2nd respondent Insurance Company and their

contention was confined to lack of driving license for the

1st respondent/rider. In such circumstances, the Insurance

Company could not have been exonerated, and instead, they

should have been directed to deposit the amount awarded,

with a right to recover the same from the insured.

Regarding the quantum, the main contention put forward by

the learned counsel for the appellants is that, the

monthly income of the deceased taken by the Tribunal is on

lower side.

7. It is true that, there is no dispute as to the

existence of policy for the scooter and also as to its

coverage for the claim. The only contention of the 2nd

respondent is that, there were violation of policy

conditions, as the 1st respondent was riding the vehicle at

the relevant time without a valid driving license. The

Tribunal found that there was no valid driving license for

the 1st respondent. In such circumstances, instead of

exonerating the 2nd respondent from the liability, the

proper course that should have been adopted by the

Tribunal was to direct the Insurance Company to satisfy

the award first and to recover the amount from the 1 st

respondent. Position of law in this regard is settled and

violation of policy conditions would not enable the

insurer to get rid of the primary liability to pay the

compensation against a third party claim. In this case,

the claim was made by a third party as far as the 2 nd

respondent is concerned. Hence the finding of the Tribunal

in this regard is not sustainable. In such circumstances,

this court is of the view that, the award is liable to be

modified with a direction to the 2nd respondent to satisfy

the award initially and to get the said amount recovered

from the 1st respondent.

8. At this juncture, the learned counsel for the

Insurance Company points out that, as per the award, the

3rd respondent was exonerated from liability on the ground

that as on the date of the accident, the vehicle stood

transferred in favour of the 1st respondent and the said

finding is not sustainable. According to him, even though,

the registration of the vehicle was transferred in favour

of the 1st respondent, the Insurance policy was not

transferred in the name of the 1st respondent within the

time stipulated in the policy as well as under Section

157(2) of the Motor Vehicles Act. Section 157(2) of the

Motor Vehicles Act clearly casts an obligation on the

transferee of the vehicle to intimate the Insurance

Company regarding such transfer within 14 days. In this

case, no such application has been submitted by none of

the parties and therefore the Insurance Company cannot be

held responsible for the same.

9. Section 157 of the Motor Vehicles Act reads as

follows:

"157. Transfer of certificate of insurance.- (1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the

motor vehicle is transferred with effect from the date of its transfer.

[Explanation.- For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance]

(2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance."

10. As per Section 157(1) of the Motor Vehicles Act,

when a person transfers his vehicle to another, even in

the absence of any further proceedings, the insurance

policy is deemed to have been transferred in favour of the

transferee. This court is of the view that the deemed

transfer as contemplated under Section 157 (1) is

unconditional and not subjected to any other provision.

It is true that, Sub-section (2) of Section 157 of the Act

contemplates for an application for transfer of the

policy, but nowhere in the said provision it is mentioned

that in the absence of such application, the deemed

transfer contemplated under sub-section (1) of Section 157

would be vitiated. The stipulation contained

in sub-section (2) of Section 157 is only directory in

nature and the operation of sub-section (1) of Section 157

cannot be regulated by the said provision. This question

was considered by a Division Bench of Orissa High Court in

Oriental Insurance Co. Ltd. v. Dinabandhu Pradhan (AIR

1994 Ori.177). Paragraph 10 of the said judgment is

extracted hereunder:

"It is clear that the purpose of enacting sub-section (2) of Section 157 is to make the insurer aware of the transfer so that it can make changes in its records, and necessary changes can be made in the certificate of insurance and policy. It cannot be said that in the absence of application, the effect of the deemed transfer in terms of S.157(1) is wiped out. It is seen that fourteen days' time has been granted for applying to the insurer. In a given case, an accident may occur between the date of transfer and the last date for making the application. In that case, insurer's liability to indemnify the transferee exists, even though in the records of the insurer, transferor is the insured. In another case, for reasons beyond the control of the parties, intimation may be given after the prescribed period. According to us, that does not clothe the insurer with the power of refusal to take notice of the transfer, keeping in view the indicated object of making necessary changes by the insurer. This construction would effectuate the purpose and intendment of the statute, and at the same time would not nullify the other provision."

11. This Court is fully in agreement with the view

taken in the said judgment. Under no circumstances, non

compliance of Section 157(2) can be treated as something

which makes the deemed transfer under Section 157(1)

invalid. Even in the absence of actual transfer of policy,

the same shall stand transferred in the name of transferee

and the Insurance Company shall continue to be liable to

all the liabilities in respect of third party claims.

Therefore, the contention of the learned counsel for the

2nd respondent is to be rejected.

12. When coming to the quantum of compensation,

following aspects are revealed from the perusal of

records; The deceased was working as supervisor in M/s

Asha Timbers, Ettumanoor and was earning an amount of

Rs.10,000/- per month. He produced Ext.A10 Employment and

Salary Certificate to substantiate the same. However, the

Tribunal has not taken the same in to consideration, as

the employer who issued the certificate was not examined.

As there was no other evidence available, the Tribunal

fixed the monthly income of the appellant as Rs.6,000/-.

Since the deceased was aged 39, an addition of 50% of the

monthly was made towards future prospects. Taking into

account the number of dependents 1/4th of the income was

deducted as personal expenses and 15 was taken as

multiplier.

13. Considering the date of accident, the monthly

income taken by the Tribunal is on lower side. By applying

the principles laid down by the Hon'ble Supreme Court in

Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Company Limited [(2011)13 SCC 236] and Syed

Sadiq v. Divisional Manager, United Indian Insurance

Company Limited [(2014)2 SCC 735], the monthly income in

cases where there is no proof of actual income, the same

can be fixed as Rs.4,500/- in the year 2004. Based on the

principles in the said judgments, this court is

consistently fixing the base monthly income as Rs 4500/-

in respect of the accidents in the year 2004 and adding Rs

500/- each per year, for the accidents occurred during

subsequent years. While applying the said principles in

this case, the monthly income of the deceased can be

reasonably fixed as Rs.8,500/-as the accident in this case

occurred on 29.8.2012. Since the deceased was aged 39

years, proper addition to be made towards future prospects

is 40% instead of 50% and the deduction to be made towards

personal expenses is 1/4th. While computing the

compensation for loss dependency, by applying the above

criteria, it would come to Rs.16,06,500/- [Rs.

(8500+3400)x12x15x3/4], instead of Rs.12,15,000/- awarded

by the Tribunal under this head. When going to the other

heads of compensation, it can be seen that, the amount

awarded under the heads of funeral expenses and loss of

estate are in excess by Rs.10,000/- each (Rs 25,000/- each

is awarded) and the said amounts are to be re-worked by

fixing it as Rs 15,000/- each. It is also noticed that,

the Tribunal awarded an amount of Rs.1,00,000/- to the 1 st

appellant towards loss of consortium and a further amount

of Rs.75,000/- to the 2nd and 3rd appellants towards loss

of love and affection. Similarly, a further sum of

Rs.25,000/- is seen granted to the 4 th and 5th appellants

under the head of love and affection as well. As per

principles laid down by the Hon'ble Supreme Court in

National Insurance Company Ltd. v. Pranay Sethi

[2017(4)KLT 662], the compensation payable under the loss

of consortium to the wife is Rs.40,000/-. So, Rs

1,00,000/- awarded under the head of loss of consortium to

the 1st appellant is excessive and it is to be revised as

Rs.40,000/-. It is also held by the Hon'ble Supreme Court

in New India Assurance Company Limited v. Somwati and

Others [(2020)9 SCC 644] and United India Insurance

Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and Others (AIR

2020 SC 3076 that the children and parents of the deceased

are entitled for loss of parental consortium and filial

consortium respectively. The amounts payable under these

heads are Rs.40,000/- each. It is also held in

Somwati's case (Supra) and Satinder Kaur @ Satwinder Kaur

(supra) that, when compensation is awarded under the head

of loss of consortium, separate compensation need not be

awarded under the head of loss of love and affection. In

the light of the above, the amount awarded under the head

of loss of consortium to the appellants have to be fixed

as Rs.40,000/- each, thus making the total compensation

under the head of loss consortium to all the appellants

as Rs 2,00,000/- (40000 X 5). Since no separate amount is

to be awarded under the head of loss of love and

affection, the amounts awarded by the Tribunal under this

head ie. Rs.75,000 and 25,000 are to be deleted. Amount

awarded under the other heads are not interfered with.

14. In the above circumstances, the award passed in

OP(MV) No. 654/2013 by the Additional Motor Accidents

Claims Tribunal-I, Kottayam, is modified by re-fixing the

quantum of compensation as Rs.18,48,300/- (Rupees Eighteen

Lakhs Fortyeight thousand and three hundred

only) (Rs.10000+15000+1800+1606500+200000+15000) instead

of Rs.14,77,000/-. The 2nd respondent being the Insurer

shall deposit the said amount along with interest and

proportionate costs as ordered by the Tribunal within a

period of three months from the date of receipt of copy of

this judgment. It is made clear that, the 2 nd respondent

shall be at liberty to recover the said compensation from

the 1st respondent, after such deposit, by executing the

award, before the Tribunal. The manner in which the

amounts are to be deposited, and the disbursements

thereof, shall be in the very same proportions as ordered

by the Tribunal.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

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