Kerala High Court
Raji Venugopal vs Binoy on 17 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
MACA NO. 325 OF 2012
AGAINST THE AWARD DATED 8.2.2010 IN OPMV NO.674/2006 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANTS/PETITIONERS:
1 RAJI VENUGOPAL,
AGED 47 YEARS, W/O.LATE VENUGOPAL,
PUSHPAMANGALAM HOUSE, PAZHAYANNUR, KUMBALAKODE
P.O., THRISSUR DISTRICT, PIN-680315.
2 V.VIPINLAL, AGED 27 YEARS,
S/O.LATE VENUGOPAL,PUSHPAMANGALAM HOUSE,
PAZHAYANNUR, KUMBALAKODE P.O., THRISSUR DISTRICT,
PIN-680315.
3 V.VARUNLAL AGED 18 YEARS
S/O.LATE VENUGOPAL, PUSHPAMANGALAM HOUSE,
PAZHAYANNUR, KUMBALAKODE P.O., THRISSUR DISTRICT,
PIN-680315.
4 N.KAMALAKSHMI AMMA, AGED 75 YEARS
W/O.CHIPPU NAIR, PUSHPAMANGALAM HOUSE, PAZHAYANNUR,
KUMBALAKODE P.O., THRISSUR DISTRICT, PIN-680315.
BY ADV SRI.SHEJI P.ABRAHAM
RESPONDENTS/RESPONDENTS:
1 BINOY,
S/O.UNNIKRISHNAN, KARIMBANATHODI HOUSE, KOLLEPADAM,
THEKKETHARA, THRISSUR DISTRICT, PIN-680587.
2 RAHEEMA CHEMMATHUKULAMBIL HOUSE,
PAZHAYANNUR P.O., THEKKETHARA, THRISSUR DISTRICT,
PIN-680587.
M.A.C.A.No.325/2012 2
3 ORIENTAL INSURANCE CO. LT.D
OPP. THIRUVAMPADY TEMPLE, SHORNUR ROAD, THRISSUR-
680 601, POLICY NO.6481/2006, VALID FROM
15/11/2005 TO 14/11/2006.
BY ADV SRI.A.R.GEORGE
THIS MOTOR ACCIDENT CLAIMS HAVING BEEN FINALLY HEARD ON
13.06.2022, THE COURT ON 17.06.2022 DELIVERED THE FOLLOWING:
M.A.C.A.No.325/2012 3
A. BADHARUDEEN, J.
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M.A.C.A.No.325 of 2012
================================
Dated this the 17th day of June, 2022
JUDGMENT
The appellants herein are the petitioners in
O.P(MV).No.674/2006 on the file of Motor Accidents Claims
Tribunal, Ottappalam. They assail award dated 08.02.2010 in the
above case on the ground of inadequacy.
2. Heard the learned counsel for the appellants as well as
the learned counsel appearing for the 3rd respondent insurance
company.
3. Facts of the case in brief:
The appellants herein approached the Tribunal and filed
petition under Section 166 of the Motor Vehicles Act in
consequence of the death of one Venugopal, in a motor accident
occurred on 19.06.2006 at about 10.45 p.m. According to the
appellants, when the above said Venugopal was travelling after
sharing the seat of a petty autorickshaw bearing Reg.No.KL-8/Y-
8233, the same capsized due to the rash and negligent driving of
the 1st respondent. The appellants claimed compensation to the tune
of Rs.6 lakh from respondents 1 to 3, wherein the 2 nd respondent is
the owner and 3rd respondent is the insurer of the above
autorickshaw.
4. Respondents 1 and 2 filed written statement and denied
negligence attributed against the 1st respondent while highlighting
policy issued by the 3rd respondent and contending that the 1st
respondent had valid driving licence at the time of the accident.
5. The 3rd respondent filed written statement disputing
accident and negligence. While admitting a valid insurance policy
issued in the name of the 2nd respondent in relation to autorickshaw
bearing Reg.No.KL-8/Y- 8233, it was specifically contended before
the Tribunal that the above said Venugopal was a gratuitous
passenger in a goods vehicle and, therefore, his risk was not
covered under the policy. Thus liability was disputed.
6. The Tribunal tried the matter. PW1 was examined.
Exts.A1 to A6 were marked on the side of the petitioner; Exts.B1
and B2 were marked on the side of the 3rd respondent.
7. On appreciation of the evidence, the Tribunal granted
Rs.3,30,000/- as compensation along with interest @ 7% per
annum from the date of petition till the date of realisation. Liability
was fastened on respondents 1 and 2 after exonerating the company
on the ground that Ext.B1 policy does not cover the risk of a
gratuitous passenger.
8. While assailing the award impugned, the learned
counsel for the appellants also not canvassed any interference
regarding the finding entered by the Tribunal to the effect that the
3rd respondent has no liability to indemnify the insured, since
Ext.B1 policy does not cover the risk of a gratuitous passenger and
Venugopal was admittedly a gratuitous passenger. But the learned
counsel for the appellants argued that the Tribunal fixed the
monthly income of the deceased at Rs.3,000/-, though Rs.4,000/-
was claimed as the monthly income. The learned counsel would
submit further that applying the ratio in [(2011) 13 SCC 236],
Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Company Ltd., Rs.4,000/- ought to be fixed as the
monthly income. Then 10% addition also should be given since the
deceased was aged between 50 and 60. He also pointed out that the
deduction made by the Tribunal as 1/3 is erroneous, it should have
been ¼, since the number of claimants are 4.
9. On perusal of the award it appears that the learned
counsel for the appellants is right in contending so. Therefore,
following the ratio in Ramachandrappa's case (supra), the
monthly income of the deceased is fixed at Rs.4,000/- per month.
By adding 10% more, the same would come to Rs.4,400/-.
Similarly, ¼ is the deduction following the ratio in [2010 (2) KLT
802], Sarla Verma v. Delhi Transport Corporation. Therefore,
loss of dependency required to be calculated as under:
4400 X 12 X 13 X ¾ =Rs.5,14,800/-, out of which
Rs.3,12,000/- granted by the Tribunal. Hence Rs.2,02,800/- more
is granted under the head `loss of dependency'.
10. The learned counsel for the appellants argued that the
amount granted under the head `loss of cosortium', `loss of estate',
`funeral expenses' etc. are low and by applying the ratio in [(2017)
16 SCC 650], National Insurance Company Ltd. v. Pranay Sethi
& Ors., 10% increase also is entitled by the appellants, since it was
held in Pranay Sethi's case (supra) that loss of estate, loss of
consortium and funeral expenses shall be enhanced @ 10% in
every 3 year. The learned counsel submitted further that
subsequently in the decisions reported in [CDJ 2021 SC 1024],
Rasmita Biswal & Ors. v. Divisional Manager, National
Insurance Company Ltd. & anr. and [CDJ 2021 SC 843],
N.Jayasree & Ors. v. Cholamandalam Ms. General Insurance
Co. Ltd., the Apex Court granted 10% increase under the
conventional heads. However, in Rasmita Biswal & Ors. v.
Divisional Manager, National Insurance Company Ltd. & anr.'s
case (supra), the Apex Court dealt with an accident of the year
2013 (09.05.2013) and in N.Jayasree & Ors. v. Cholamandalam
Ms. General Insurance Co. Ltd.'s case (supra), the Apex Court
dealt with an accident of the year 2011 (20.06.2011). It is relevant
to note further that in a latest decision reported in [2022 (5) SCC
107], R.Valli & Ors. v. Tamil Nadu State Transport Corporation
Ltd., when the Apex Court considered a case of death in
consequence of 2010 accident, 10% addition was not given
following the ratio in Pranay Sethi's case (supra).
11. I am not inclined to give increase in the case on hand
following the above said decisions since this is an accident of the
year 2006. Therefore, I am inclined to grant compensation under
the conventional heads without addition of 10% as contended.
Therefore, towards `loss of consortium', I am inclined to grant
Rs.40,000/- each to the petitioners 4 in number and therefore, the
same would come to Rs.1,60,000/-, out of which Rs.5,000/- was
granted by the Tribunal. Reducing Rs.5,000/- granted by the
Tribunal, Rs.1,55,000/- more is granted under the head `loss of
consortium'. Towards loss of estate and funeral expenses, the
Tribunal granted Rs.5,000/- each. Therefore, Rs.10,000/- each
more is granted under the heads loss of estate and funeral
expenses.
12. In the result, the appeal is allowed in part and enhanced
compensation to the tune of Rs.3,77,800/- (Rupees Three lakh
seventy seven thousand eight hundred only) is granted in favour of
the appellants with the same rate of interest granted by the Tribunal
from the date of petition till realisation or deposit excluding interest
for a period of 632 days as ordered in C.M.Appl.No.1/2012 dated
25.02.2022 with direction to the 2nd respondent to deposit the same
in the name of the appellants.
Since the policy issued in favour of the 2nd respondent does
not cover the risk of a gratuitous passenger, the liability of the
company in the matter of paying the enhanced compensation also is
exempted.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
