Kerala High Court
Kochu Karappan vs National Insurance Company on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
MACA NO. 2023 OF 2012
AGAINST THE AWARD IN OP(MV) 260/2004 OF ADDITIONAL
DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH
PARAVUR, ERNAKULAM
APPELLANT/2ND RESPONDENT IN THE OP:
NATIONAL INSURANCE CO.LTD,
IRINJALAKKUDA,
REPRESENTED BY THE AUTHORISED SIGNATORY,
NATIONAL INSURANCE CO. LTD,
KOCHI REGIONAL OFFICE, 2ND FLOOR,
OMANA BUILDINGS, MG ROAD, KOCHI-35.
BY ADV SRI.A.R.GEORGE
RESPONDENTS/CLAIMANTS & RESPONDENTS 1 & 2 IN THE OP:
1 KOCHU KARAPPAN
S/O. AYYAPPAN, KANATHATTU HOSUE, POOPPATHY,
POYYA. PIN-680733.
2 VALLIKKUTTY
W/O. KOCHU KARAPPAN, DO- DO- PIN-680733.
3 BENCHITHA
D/O. KOCHU KARAPPAN, DO- DO- PIN-680733.
4 BINDU
D/O. KOCHU KARAPPAN, DO- DO- PIN-680733.
5 P.V.MERY, D/O.VARGHESE, PADATHURUTHIL HOUSE,
MANACHERI KUNNU, PUTHENVELIKARA. PIN-683512.
*6 SEETHA, W/O. SANTHOSH, THEMALIPARAMBIL HOUSE,
CHETTIKKULAM, PARAKKADAVU. PIN-683579. [DELETED]
*4 PAULSON, S/O. JOSEPH, CHANASSERY HOUSE,
MADATHUMPADI DESOM, MADATHUMPADI VILLAGE,
KODUNGALLOOR TALUK. PIN-680664. [DELETED]
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
2
*R6 AND R7 ARE DELETED FROM THE PARTY ARRAY AT
THE RISK OF THE APPELLANT VIDE ORDER DATED
17.09.2014 IN I.A.NO.2263/2014 IN M.A.C.A.
NO.2023/2012.
BY ADVS.
SRI.A.N.SANTHOSH
SMT.ANUPAMA JOHNY
SRI.REJI GEORGE
THIS M.A.C.A HAVING COME UP FOR ADMISSION ON
29.10.2021, ALONG WITH CO.92/2015, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
CO NO. 92 OF 2015
AGAINST THE AWARD IN OP(MV) 260/2004 OF ADDITIONAL
DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH
PARAVUR, ERNAKULAM
CROSS OBJECTORS (RESPONDENT 1 TO 4 IN MACA NO.2023/2012):
1 KOCHU KARAPPAN, AGED 65,
S/O. AYYAPPAN, KANATHATTU HOUSE, POOPPATHY,
POYYA. PIN-680733.
2 VALLIKKUTTY
W/O. KOCHU KARAPPAN, KANATHATTU HOUSE,
POOPPATHY, POYYA. PIN-680733.
3 BENCHITHA
D/O. KOCHU KARAPPAN, KANATHATTU HOUSE,
POOPPATHY, POYYA. PIN-680733.
4 BINDU
D/O. KOCHU KARAPPAN, KANATHATTU HOUSE,
POOPPATHY, POYYA. PIN-680733.
BY ADVS.
SRI.GOPAKUMAR G. (ALUVA)
SRI.REJI GEORGE
RESPONDENT (APPELLANT AND RESPONDENT NO.5 IN MACA
NO.2023/2012):
1 NATIONAL INSURANCE CO.LTD,
IRINJALAKKUDA,
REPRESENTED BY THE AUTHORISED SIGNATORY,
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
4
NATIONAL INSURANCE CO. LTD,
KOCHI REGIONAL OFFICE, 2ND FLOOR,
OMANA BUILDINGS, MG ROAD, KOCHI-35.
2 P.V.MERY, D/O.VARGHESE, PADATHURUTHIL HOUSE,
MANACHERI KUNNU, PUTHENVELIKARA. PIN-683512.
BY ADV SRI.A.R.GEORGE
THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON
29.10.2021, ALONG WITH MACA.2023/2012, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
5
JUDGMENT
M.A.C.A. No.2023/2012 is at the
instance of the original 2nd respondent,
Insurance Company. Appellant is aggrieved in
the matter of non-granting of recovery right
even after failure to produce the Driving
Licence despite specific direction. Whereas,
Cross Objection No.92/2015 is at the volition
of the respondents in the appeal, who are
original petitions in O.P.(M.V) No.260/2004 of
MACT, North Paravur, who are aggrieved by the
quantum of compensation as well as finding 25%
contributory negligence on the part of the
rider of the motor vehicle, where the above
said Biju, was the pillion.
2. First of all, it is submitted by the
learned counsel for the Insurance Company that
in the written statement filed by the
Insurance Company, a specific contention was
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
raised to the effect that the driver of the
offending vehicle (who also succumbed
injuries in consequence of the accident) did
not possess a valid Driving License.
Thereafter, on the application of the
Insurance Company, the wife of the deceased
driver was directed to produce Driving License
pertaining to the driver of the alleged
offending vehicle. Even though direction was
given to produce Driving License, no Driving
License produced to establish the point that
the driver did possess a valid Driving License
at the relevant time of accident. Therefore,
the Tribunal ought to have taken adverse
inference and recovery right ought to have
been granted. Since the right was declined,
this appeal was preferred. The learned counsel
for the Insurance Company pressed for recovery
right.
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
3. On perusal of the award supported by
the direction in I.A.No.1463/2009, the
submission appears to be correct. It is not in
dispute that absence of Driving Licence is a
negative fact and cannot be proved by positive
evidence. Therefore, generally two options are
available to find absence of Driving License.
i) the police charge against the offender
alleging absence of Driving Licence and ii)
to direct the driver or owner to produce the
Driving Licence and non-production thereafter
would indicate that the driver did not possess
a Driving Licence at the time of accident and
on such non-production an adverse inference to
to be drawn to hold that there was no Driving
Licence to the driver of the offending vehicle
at the time of accident. Here, the Company
rightly filed I.A.No.1463/2009 and the 3rd
respondent, wife of deceased driver, was
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
directed to produce Driving Licence, despite
that no Driving Licence produced. Therefore,
an adverse inference could be drawn to hold
that there was no Driving Licence for the
driver of the vehicle at the time of accident.
In short, the right recovery sought by the
Company is liable to be allowed and non-grant
of the said relief by the Tribunal, is not
legally sustainable. Thus, the contention
raised by the learned counsel for the
Insurance Company found sustainable and
recovery right of the award granted by the
Tribunal inclusive of any enhancement by this
Court is liable to be granted.
4. Coming to the cross objectors
(hereinafter referred as 'the original
petitioners'), their learned counsel would
submit that the award granted by the Tribunal
is insufficient. It is submitted by the
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
learned counsel for the original petitioners
that the Tribunal wrongly found contributory
negligence on the part of the pillion rider
also, without support of any evidence and
ignoring the police charge alleging negligence
on the part of the driver (now no more) of the
offending vehicle.
5. It is submitted by the learned counsel
for the original petitioners that in the
decision reported in Mohammed Siddique and
another Vs. National Insurance Co. Ltd. and
others : 2020 ACJ 751, it was held that
carrying two pillion drivers in a motor bike
by itself is not a reason to find contributory
negligence.
6. It has been settled by a catena of
decisions starting from New India Assurance
Co. Ltd v. Pazhaniammal : 2011 (3) KLT 648]
and the latest decision reported in Balan R.
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
v. Abhiraj R. and others : 2021 (4) KHC 380,
that the police charge can be relied on to
find negligence on the driver, unless and
until convincing evidence to have deviation
from the police charge, otherwise not
established. Ext.A1 is the police charge
herein and is against the rider of the
offending vehicle and the same should be given
predominance in a case where no other evidence
adduced to hold otherwise. Therefore, I am
inclined to set aside the finding regarding
25% contributory negligence by the Tribunal
and it is held that the rider of the motor
cycle fully contributed to the accident.
7. Coming to the challenge as regards to
the insufficiency of compensation, it is
submitted by the learned counsel for the
original petitioners that the monthly income
claimed in relation to the deceased was
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
Rs.6,000/- per month as he was a granite stone
worker. However, the Tribunal fixed Rs.3,000/-
as notional income and compensation calculated
based on this income. It is submitted that
following the ratio in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance
Company Ltd. : (2011) 13 SCC 236, also the
income of the deceased should have been fixed
at Rs.4,000/- (applies to 2003) taking note of
the fact that the accident was on the last
week of the year 2002. However, following the
ratio in Ramachandrappa's case (supra), if
deduction at the rate of Rs.500/- per year is
made, the monthly income would come Rs.3,500/-
during 2012 and I am not inclined to have any
deviation therefrom to make things more
complicated. Therefore, Rs.3,500/- is fixed as
monthly income. Thus, 'loss of dependency' is
recalculated as;
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
3,500+40% = 4,900x12x18x½ = 5,29,200/-.
Out of which, Rs.3,24,000/- was granted by
the Tribunal and the remaining viz.,
Rs.2,05,200/- more is granted under the head
'loss of dependency'.
8. Coming to the other heads also, it is
submitted by the learned counsel for the
original petitioners that under the head
'funeral expenses', only Rs.5,000/- was
granted by the Tribunal. Similarly, towards
'loss of estate' also, Rs.10,000/- alone was
granted. It is settled as per the ratio in
National Insurance Company Ltd. v. Pranay
Sethi : (2017) 16 SCC 680, that the appellants
are entitled to get Rs.10,000/- more under the
head 'funeral expenses' and Rs.5,000/- more
under the head 'loss of estate'. It is further
submitted that towards 'loss of consortium',
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
no amount was granted by the Tribunal. Going
by the status of the appellants, appellants 1
and 2 are the parents of the deceased and they
are entitled to Rs.40,000/- each under the
head 'loss of parental consortium'. Therefore,
Rs.80,000/- is granted under this head.
9. It is submitted by the learned counsel
for the Insurance Company that towards 'pain
and sufferings', Rs.25,000/- was granted by
the Tribunal and Rs.15,000/- granted under the
head 'love and affection' are not liable to be
granted in view of the decision in United
India Insurance Co. Ltd v. Satinder Kaur @
Satwinder Kaur and others : 2020 (3) KHC 760.
This submission appears to be convincing and
therefore, Rs.40,000/- under these heads
stands reduced. Thus, the enhanced
compensation entitled by the appellants would
come to Rs.2,60,000/-.
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
10. In the result, this appeal is allowed.
It is held that the appellants are entitled to
get Rs.6,45,200/- as compensation out of which
Rs.3,85,000/- was granted by the Tribunal and
the balance amount of Rs.2,60,200/- (Rupees
Two Lakhs Sixty Thousand and Two Hundred Only)
is granted as enhanced compensation with the
same rate of interest awarded by the Tribunal
payable by the Insurance Company from the date
of petition till the date of deposit or
realisation.
11. The Company is directed to deposit the
amount including court fee as directed by the
Tribunal.
It is specifically ordered that the
Insurance Company - the original 2nd
respondent is entitled to get the entire award
amount along with the accrued interest
thereof, to be realised from the 5th
M.A.C.A No.2023 of 2012
&
C.O.No.92 of 2015
respondent - the owner of the vehicle, after
depositing the same, since it is found that
there was violation of policy conditions.
Sd/-
A.BADHARUDEEN, JUDGE.
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