P.V.Nidhish And Another vs Haneefa And Others
2023 Latest Caselaw 1920 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
                    MACA NO. 2009 OF 2009
AGAINST THE AWARD IN OPMV 1536/2003 DATED 23.04.2009 OF
          MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI
APPELLANT/RESPONDENTS 2 & 4:

    1      P.V.NIDHISH
           S/O P V CHANDRAN, KTC AUTOMOBILES, YMCA ROAD,
           KOZHIKODE DISTRICT.
    2      KTC AUTOOBILES
           REPRESENTED BY ITS MANAGING DIRECTOR,, YMCA
           ROAD, KOZHIKODE.
           BY ADV SRI.DEVAPRASANTH.P.J.


RESPONDENTS/PETITIONERS 1 & 2/RESPONDENTS 1 & 3:

    1      HANEEFA, AGED 40 YEARS
           S/O.MAMMUTTY NELLIKKUNNAN, ARAVANKARA,,
           POOKKOTTUR P.O., MALAPPURAM DISTRICT.
    2      FATHIMA.K.C. W/O.HANEEFA
           ARAVANKARA, POOKKOTTUR P.O., MALAPPURAM
           DISTRICT.
    3      NISANTHKUMAR.P.S.
           S/O.NARAYANAN NAIR.P.S., ANTHI NIVAS,,
           PERUVAYAL P.O., KOZHIKODE DISTRICT.
    4      THE NEW INDIA ASSURANCE COMPANY
           LIMITED, SHAFEER COMPLEX, OPP.YMCA,, KANNUR
           ROAD, CALICUT.
           BY ADVS.
           SRI.BABU S. NAIR
           ROY THOMAS (PATHANAMTHITTA)
           SMT.A.SREEKALA



        THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP
FOR ADMISSION ON 03.02.2023, ALONG WITH CO.3/2010, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 2009 OF 2009

                              2


           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
                        CO NO. 3 OF 2010
        AGAINST THE AWARD IN OP(MV) NO.1536/2003 DATED
           23.04.2009 BY THE MOTOR ACCIDENTS CLAIMS
                       TRIBUNAL,MANJERI
APPELLANT/PETITIONERS:

    1      HANEEFA, S/O MAMMUTTY NELLIKKUNNAN
           ARAVANKARA, POOKKOTTUR.P.O., MALAPPURAM
           DISTRICT.
    2      FATHIMA.K.C. W/O. HANEEFA
           ARAVANKARA,POOKKOTTUR.P.O., MALAPPURAM
           DISTRICT.
           BY ADV SRI.BABU S. NAIR


RESPONDENTS/RESPONDENTS:

    1      NISANTHKUMAR P.S.
           S/O. NARAYANN NAIR.P.S., ANTHI NIVAS,,
           PERUVAYAL.P.O., KOZHIKODE DISTRICT.
    2      P.V.NIDHISH S/O. P.V.CHANDRAN
           KTC AUTOMOBILES, YMCA ROAD, KOZHIKODE DISTRICT.
    3      THE NEW INDIA ASSURANCE CO. LTD.
           SHAFEER COMPLEX, OPP. YMCA, KANNUR ROAD,
           CALICUT.
    4      KTC AUTOMOBILES REPRESENTED BY ITS
           MANAGING DIRECTOR, YMCA ROAD, KOZHIKODE
           DISTRICT.
           BY ADVS.
           SRI.DEVAPRASANTH.P.J.
           SMT.A.SREEKALA



        THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP
FOR ADMISSION ON 03.02.2023, ALONG WITH MACA.2009/2009,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 2009 OF 2009

                                 3




                          JUDGMENT

The afore appeal is filed by the owners of the vehicle

involved in the accident, which killed an young boy of 12

years by name Master Sajid; while, the Cross Objection is

filed by his parents.

2. Since the factual circumstances involved in this

case are without dispute, I do not require to indite it in detail,

except to say that late Master Sajid was knocked down by a

Car owned by the appellants and covered by a Trade License

issued by the jurisdictional Regional Transport Authority. The

child succumbed to the injuries and his parents, namely the

Cross Objectors, filed O.P(MV) No. 1536/2003 before the

Motor Accidents Claims Tribunal, Manjeri ('Tribunal' for short)

seeking an amount of Rs.2,00,000/-, but was awarded only

Rs.1,65,500/-. While doing so, the Tribunal exonerated the

Insurance Company holding that the offending vehicle was

not enjoying the protection of a valid Insurance Policy.

3. The appellants in the appeal impugn that portion of

the Award of the Tribunal, exonerating the Insurance

Company; while, the Cross Objectors seek that the amounts MACA NO. 2009 OF 2009

granted be enhanced.

4. I have heard Smt.Smini Jose, appearing for the

appellants; Smt.Jinu Antony, appearing for the Cross

Objectors; and Smt. Sreekala A. - learned Standing Counsel

appearing for the Insurance Company.

5. Smt.Smini Jose, appearing for the appellants,

argued that Exts.A4 and A6 - Trade Certificates would show

that only the vehicles under the trade name "Hyundai Santro"

are covered by the former; while, the offending vehicle, which

is a "Hyundai Accent" is covered by the latter. She argued

that, in such perspective, the offending vehicle was covered

by a valid Insurance Policy, since Ext.B1 luculently show that

it takes in Trade Plate No.KL-11 TC 3/98 D, which is the one

covered by Ext.A4. She contended that, however, the learned

Tribunal went by the documents maintained by the Police,

including Ext.A1 - FIR and Ext.A5 Charge Sheet, wherein, it

has been incorrectly recorded that the offending vehicle was

covered by Ext.A6 - Trade Plate, which is not covered by

Ext.B1 policy. She thus prayed that the Award of the Tribunal,

to the extent to which it exonerates the Insurance Company,

be set aside.

MACA NO. 2009 OF 2009

6. In response, Smt.Sreekala A. - learned Standing

Counsel for the Insurance Company, submitted that the

appellants did not have any contra case against Exts.A1 - FIR

and A5 - Charge Sheet and therefore, that they cannot now

impel the afore contentions before this Court. She asserted

that the Tribunal was completely without error in having

adopted the entries in these two documents, to hold that the

vehicle involved was covered by Ext.A6 - Trade Certificate,

which is not one insured under Ext.B1 Policy. She thus

prayed that this appeal be dismissed.

7. Coming to the Cross Objections, Smt.Jinu Antony,

learned counsel for the Cross Objectors, submitted that the

Tribunal erred in granting exiguous compensation under the

heads 'Funeral Expenses', 'Loss to Estate' and 'Loss of

Dependency'; and that it was alleged on its part to have

denied compensation under the head 'Loss of Consortium' to

the parents. She thus prayed that the Award, to such extent,

be modified and her client be granted the eligible

compensation.

8. Smt.Smini Jose and Smt. Sreekala A, appearing for

the respondents in the Cross Objections, responded asserting

that the compensation awarded by the Tribunal is just and MACA NO. 2009 OF 2009

commensurate; and thus prayed that it be dismissed.

9. The afore rival submissions of the parties being so

recorded, I will first proceed to decide the merits of the

appeal, and then that of the Cross Objections.

10. As seen above, the appellants claim that the

offending vehicle was covered by Ext.A4 - Trade Certificate

and hence within the ambit of Ext.B1 - Insurance Policy.

However, the Tribunal, relying upon the entries in Ext.A1 - FIR

and Ext.A6 - Charge Sheet, as also Ext.A3 - copy of Kychit

under which the vehicle was released from the Police Station,

has entered its opinion that the offending vehicle was covered

by Ext.A6 - Trade certificate, which does not find mention in

Ext.B1 - Insurance Policy.

11. As far as the Trade Certificate of the offending

vehicle is concerned, this is a pure matter of fact, because it

will solely depend upon the entries in the Trade Certificates

issued by the jurisdictional Regional Transport Officer. Prima

facie, going by Ext.A4 - Trade Certificate, it covers only a

particular class of vehicle, under the brand name "Hyundai

Santro"; while Ext.A6 - Trade Certificate appears to cover all

'Light Motor Vehicles'. If this be so and the offending vehicle

is not 'Hyundai Santro', it is rather doubtful as to how Ext.A4 MACA NO. 2009 OF 2009

Trade Certificate would apply to it, as has been found by the

Tribunal. However, I do not propose to speak on this in detail

because, am of the view that this matter will require to be

reconsidered by the Tribunal but, subject to certain

conditions, as I will presently propose.

12. Coming to the Cross Objections, I find force in the

submission of Smt.Jinu Antony, that the compensation

awarded by the Tribunal under various heads are exiguous. In

National Insurance Company Ltd. v. Pranay Sethi

[2017(4) KLT 6621], the Hon'ble Supreme Court has

authorised the grant of Rs.15,000/- each under the heads

'Funeral Expenses' and 'Loss of Estate' and I am certain that

the impugned Award deserves to be modified accordingly. As

far as 'Loss of Dependency' is concerned, the Tribunal has

adopted Rs.15,000/- to be the annual income of the

deceased; but this Court, as also the Hon'ble Supreme Court,

in various judgments including Kurvan Ansari Alias Kurvan

Ali v. Shyam Kishore Murmu [(2022) SCC 317] has

adopted the notional income of Rs.25,000/- per annum for a

child, who was involved in an accident in the year 2004. I am

certain that same stand can be adopted safely in this case

also.

MACA NO. 2009 OF 2009

13. Further, going by Pranay Sethi (Supra) again, the

parents are certainly entitled to compensation, under the

head 'Loss of Consortium'; of Rs.40,000/- each.

14. In such view, the total compensation eligible to the

Cross Objectors would stand revised to Rs.3,08,500/-. The

Cross Objectors would be eligible to recover this amount from

the respondents, along with interest at the rate of 7% per

annum, as fixed by the Tribunal, from the date of claim, till its

realization.

15. The compensation being so enhanced, I am certain

that a remand of the matter to the Tribunal for the question

as to whether the Insurance Company is responsible to

indemnify the appellants in MACA No. 2009/2009 can be

allowed, only if they deposit the entire amount, as ordered

above, within a time frame. I record that this has not been

opposed by their learned counsel; but who prayed that, in the

event the Tribunal is to find that the Insurance Company to be

liable, then, they may be directed to pay this amount to them

without any delay.

Resultantly;

(a) MACA No. 2009/2009 is allowed in part and the

Original Petition is remanded to the Tribunal for MACA NO. 2009 OF 2009

reconsideration of the question whether the Insurance

Company is liable to indemnify the appellants therein for the

compensation ordered by this Court in favour of the

claimants; however on condition that they deposit the said

compensation, in terms of (b) below, within a period of one

month from the date of reciept of a copy of this judgment.

(b) Cross Objection No.3/2010 is allowed, enhancing

the compensation to Rs.3,08,500/-, from Rs.1,65,500/- as

ordered by the Tribunal, along with interest at the rate of 7%

per annum from the date of claim, until its realization.

(c) On the appellants in MACA No.2009/2009

depositing the amount as ordered in (a) afore, the claimants

will be at liberty to receive it from the Tribunal, on an

appropriate application.

(d) Alternatively, if the appellants in MACA

No.2009/2009 do not deposit the amount, as per (a) above,

then the Award of the Tribunal, as modified by this Court,

would stand upheld; and the claimants would be at full liberty

to recover it from the said appellants, in terms of law.

(e) Needless to say, if the appellants in MACA No.

2009/2009 are to deposit the amount as ordered in (a)

above, and should the Tribunal eventually finds that the MACA NO. 2009 OF 2009

Insurance Company is liable to indemnify them, they will be

at full liberty to recover the same from the said Company as

per law.

Sd/- DEVAN RAMACHANDRAN, JUDGE lsn MACA NO. 2009 OF 2009

APPENDIX

PETITIONERS EXHIBITS:

ANNEXURE I. COPY OF THE PARTICULARS OF TRADE CERTIFICATE NO.KL 11 TC 03/1998 ISSUED BY RTO KOZHIKODE DATED 31.03.2009

ANNEXURE II COPY OF THE AFFIDAVIT FILED BY THE DIVISIONAL MANAGER OF R4 DATED 18.04.2009.

RESPONDENTS EXHIBITS: NIL

TRUE COPY

P.A TO JUDGE

LSN