Kerala High Court
Mambi vs T.Narayan on 11 January, 2022
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M.A.C.A.No.844 of 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
MACA NO. 844 OF 2011
AGAINST THE ORDER/JUDGMENT IN OPMV 328/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANT/S:
1 MAMBI
2 SANTHA
3 SURESH
4 VINITHA (ALL APPELLANTS RESIDING AT NJAVANIPADATH HOUSE,, THARAKKAL,
EDAPPAL, MALAPPURAM DISTRICT).
BY ADV SRI.T.C.SURESH MENON
RESPONDENT/S:
1 T.NARAYAN, S/O.KUMARAN,THALAKKATT HOUSE, EDAPPAL.P.O.,, MALAPPURAM
DISTRICT.
2 THE NEW INDIA INSURANCE CO. LTD.
BRANCH, K.H.BUILDINGS, THAZHEPALAM, TIRUR.
3 HAMSA, S/O. SIDHIQUE, KOTTENTAKATH
HOUSE, VELYAMKODE.P.O., MALAPPURAM DISTRICT.
4 THE NEW INDIA INSURANCE CO.LTD.
BRANCH, K.H.BUILDINGS, THAZHEPALAM, TIRUR.
5 SHAJIMON, S/O. JANAKI AMMA
PALAKKOTTIL HOUSE, THALAKKASSERY, PALAKKAD, DISTRICT.
6 THE ORIENTAL INSURANCE CO. LTD.
PRANAVAM BUILDING, MELE PATTAMBI,, PATTAMBI.
7 ABDUL BASHEER , S/O. ABDULLA
PARAPARAMBIL HOUSE, ANAKKARA.P.O.
BY ADVS.
SRI.VPK.PANICKER
SMT.T.C.SOWMIAVATHY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.01.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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M.A.C.A.No.844 of 2011
C.S.DIAS, J.
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M.A.C.A.No.844 of 2011
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Dated this the 11th day of January, 2022.
JUDGMENT
The appellants were the petitioners in OP(MV)
No.328/2007 on the file of the Motor Accidents Claims
Tribunal, Ottapalam. The respondents in the appeal
were the respondents before the Tribunal.
2. The appellants had filed the claim petition
under Sec.163A of the Motor Vehicles Act, 1988,
claiming compensation on account of the death of Vijith
(deceased), the son of the appellants 1 and 2 and
brother of the appellants 3 and 4. It was their case
that, on 17.12.2006, while the deceased was travelling
pillion on a motor cycle bearing registration No.KL-
10/N 9225, driven by one Mahesh along the Edappal-
Ponnani road, a bus bearing registration No.KL-10/M
M.A.C.A.No.844 of 2011
541, hit against an auto rickshaw bearing registration
No.KL-9/D 5920 and in the impact the vehicles hit the
motor cycle of the deceased. Although the deceased
was taken to Edappal Hospital, he succumbed to his
injuries. The first respondent was the owner and
second respondent was the insurer of the bus, that the
third respondent was the owner and the fourth
respondent was the insurer of the motor cycle and that
the fifth respondent was the owner, the sixth
respondent was the insurer, and the seventh respondent
was the insured of the auto rickshaw. The appellants
had claimed that the deceased was a Mason by
profession and was earning an annual income of
Rs.40,000/-. Hence, the appellants claimed a
compensation of Rs.4,89,500/- from the respondents.
3. The legal representatives of the deceased
rider of the motor cycle and the other pillion rider filed
M.A.C.A.No.844 of 2011
OP(MV) Nos 490 and 330 of 2007, respectively, before
the same Tribunal, seeking compensation from the
respondents.
4. The respondents 2 and 4 had filed separate
written statements denying the assertions in the claim
petitions. It was their defence that, the accident
occurred due to the negligence of the rider of the motor
cycle. Hence, the respondents 2 and 3 prayed that they
may be exonerated of their liability.
5. The respondents five and six had filed
separate written statements in the claim petitions
reiterating the very same allegations as that of the
respondents 2 and 4. They also contended that the
accident occurred due to the negligence of the
deceased rider of the motor cycle.
6. The Tribunal consolidated and jointly tried the
three claim petitions.
M.A.C.A.No.844 of 2011
7. The petitioners in the three claim petitions
examined PWs 1 and 2 and marked Exts A1 to A19 in
evidence. The respondents produced and marked Exts
B1 and B2 in evidence.
8. The Tribunal, after analysing the pleadings
and materials on record, allowed the captioned claim
petition, in part, by permitting the appellants to recover
from the respondents 3 and 4 an amount of
Rs.3,28,500/- with interest and cost.
9. Aggrieved by the exoneration of respondents 2
and 6 - the insurers of the bus and auto rickshaw and
dissatisfied with the quantum of compensation awarded
by the Tribunal, the petitioners are in the appeal.
10. Heard Sri.T.C Suresh Menon, the learned
counsel appearing for the appellants/petitioners,
Sri.V.P.K Panicker, the learned counsel appearing for the
sixth respondent and Smt.T.C Sowmiavathy, the learned
M.A.C.A.No.844 of 2011
counsel appearing for the respondents 2 and 4.
11. The questions that arise for consideration in
the appeal are: (i) whether the finding of negligence on
the rider of the motor cycle owned by the third
respondent is sustainable in law, and (ii) whether the
quantum of compensation awarded by the Tribunal is
reasonable and just.
Question No.(i)
12. The specific case of the appellants in the claim
petition was that while the deceased was riding pillion
on the motor cycle, due to the collision between the
motor cycle, bus and auto rickshaw, the deceased
sustained fatal injuries and lost his life.
13. The Tribunal, on the basis of the materials on
record, arrived at the conclusion that the accident
occurred due to the negligence of the rider of the motor
cycle. Accordingly, the Tribunal directed the
respondents 3 and 4 - the owner and insurer of the
M.A.C.A.No.844 of 2011
motor cycle to pay the compensation amount, which
was quantified at Rs.3,28,500/-.
14. In United India Insurance Co.Ltd v. Sunil
Kumar - [2017 (4) KLT 1093(SC)], the Hon'ble
Supreme Court has categorically held that in a claim
petition filed under Sec.163A of the Act, the question of
negligence cannot be looked into. Therefore, what
needs to be looked into in a claim petition filed under
Sec.163A is only the averments in the claim petition and
the materials on record.
15. As the case of the appellants was that the
accident occurred due to the negligence of the drivers
of the three vehicles and the respondents 2, 4 and 6,
being the insurers of the bus, motor cycle and auto
rickshaw, respectively, it is the above insurers who are
to indemnify the liabilities of the owners of the above
respective vehicles, and pay the compensation amount
to the appellants. The Tribunal could not have gone
M.A.C.A.No.844 of 2011
into the question of negligence and attributed the same
on the rider of the motorcycle in view of the law laid
down in Sunil Kumar (supra). Hence, I set aside the
finding of the Tribunal, that it is the rider of the
motorcycle who was negligent and, therefore, the
respondents 3 and 4 have to pay the compensation. In
the light of the law laid down by the Hon'ble Supreme
Court in Khenyei vs New India Assurance Co. Ltd
[(2015) 9 SCC 273] and as the insurers of all the
three vehicles are on the party array, and they have
admitted that the three vehicles had valid insurance
policies, I hold that the respondents 2,4 and 6 are
jointly and severally liable to pay the compensation
amount to the appellants in equal shares. Hence, I
answer question No.(i) in favour of the appellants.
Question No.(ii)
16. The appellants had averred that the deceased
was a Mason by profession and earning an annual
M.A.C.A.No.844 of 2011
income of Rs.40,000/-. For the want of materials, the
Tribunal fixed the notional annual income of the
appellant at Rs.36,000/-.
17. The Hon'ble Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [(2011) 13
SCC 236] has fixed the notional income of a coolie
worker in the year 2004 at Rs.4,500/- per month.
18. Following the yardstick in the aforecited
decision and considering the fact that the accident
occurred in the year 2006, I have no hesitation to fix the
notional annual income of the deceased at Rs.40,000/-
as claimed in the claim petition.
19. It is on record that the deceased was aged 24
years at the time of the accident.
20. As per the Second Schedule to the Motor
Vehicles Act, 1988, prior to the 2018 amendment, the
total compensation payable to the dependents of the
M.A.C.A.No.844 of 2011
deceased in the age group of 20 to 25 years with an
annual income of Rs.40,000/- is Rs.7,20,000/-. Out of
the said amount, one-third of the compensation has to
be deducted towards the personal living expenses of the
deceased. Therefore, a consolidated compensation of
Rs.4,80,000/- has to be paid to the appellants, as per
the structured formula in the Second Schedule of the
Act. Likewise, an amount of Rs.2,000/- has to be paid
towards funeral expenses and Rs.2,500/- has to be paid
towards loss of estate. Thus, the appellants are
entitled to a total amount of Rs.4,84,500/- as per the
Second Schedule of the Act.
21. In the above legal and factual matrix, I hold
that the appellants are entitled to a further amount of
Rs.1,56,000/- with interest at the rate of 7% per
annum on the said amount from the date of claim
petition till the date of realization with proportionate
cost.
M.A.C.A.No.844 of 2011
22. As I have already found in question No.(i) that
it is the respondents 2, 4 and 6 who are liable to pay the
compensation amount, I direct them to pay the
enhanced compensation as well as the compensation as
per the impugned award in equal shares as per the
principles in Khenyei (supra). The respondents 2, 4
and 6 are ordered to deposit the compensation as per
the impugned award as well as the enhanced
compensation with interest and cost as per this
judgment before the Tribunal within a period of sixty
days from the date of receipt of a certified copy of the
judgment. Immediately on the compensation amount
being deposited, the Tribunal shall disburse the same to
the appellants in the ratio of 30:30:20:20 and in
accordance with law.
SD/-
sks/10.1.2022. C.S.DIAS, JUDGE
