Venus C.S vs The Oriental Insurance Company ...
2023 Latest Caselaw 3150 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                        MACA NO. 2715 OF 2016
AGAINST THE AWARD IN OP(MV)NO.758/2012 OF MOTOR ACCIDENT CLAIMS
                        TRIBUNAL, PERUMBAVOOR
APPELLANT:

             THE ORIENTAL INSURANCE CO.LTD.,
             THIRUVANANTHAPURAM, REPRESENTED BY THE AUTHORISED
             SIGNATORY, THE ORIENTAL INSURANCE CO. LTD.,
             REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH,
             KOCHI 18.
             BY ADV SRI.A.R.GEORGE


RESPONDENTS:

    1        VENUS.C.S.
             W/O. SUBAIR M.K, MEETHARUPARAMBIL HOUSE,
             VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O,
             ALUVA-683108.
    2        M.S MUHAMMED RIYAS (NOW MAJOR)
             AGED 19 YEARS, S/O.SUBAIR M.K, MEETHYARUPARAMBIL
             HOUSE, VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA
             P.O, ALUVA-683108.
    3        M.S SIYAN FATHIMA (MINOR),
             AGED 14 YEARS,
             D/O.SUBAIR M.K, MEETHYARUPARAMBIL HOUSE,
             VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O,
             ALUVA-683108.
    4        KUNJUMOHAMMED
             S/O.HYDROSE, MEETHYARUPARAMBIL HOUSE, VADAKKEVEEDU,
             THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA-683108.
    5        NAFEESA
             W/O.KUNJUMOHAMMED, MEETHYARUPARAMBIL HOUSE,
             VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O,
             ALUVA-683108.
    6        SUNIL LAL,
             THOOKUVILAXIL HARISREE,
             PAPPANAMKODE, TRIVANDRUM - 695018.
    7        RAMESH,
             S/O.CHINNASWAMY, VALLIKKUNNU HOUSE, ARATTUPUZHA,
             ARATTUPUZHA VILLAGE - 690515
 MACA NO.2715 OF 2016 & CO NO.24 OF 2017
                              2

          (MINOR RESPONDENT NO.3 REPRESENTED BY HER NEXT
          FRIEND AND MOTHER - VENUS C.S. - THE 1ST
          RESPONDENT)
          BY ADVS.
          SMT.ANUPAMA JOHNY
          SRI.REJI GEORGE


     THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 23.03.2023, ALONG WITH CO.24/2017, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO.2715 OF 2016 & CO NO.24 OF 2017
                                 3



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
  THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                         CO NO. 24 OF 2017
  CROSS OBJECTION IN MACA 2715/2016 FROM THE AWARD PASSD IN
  O.P(MV)NO.758 OF 2012 ON THE FILES OF THE MOTOR ACCIDENTS
                   CLAIMS TRIBUNAL, PERUMBAVOOR
CROSS OBJECTORS:

    1    VENUS.C.S.
         W/O. SUBAIR M.K, MEETHARUPARAMBIL HOUSE,
         VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O,
         ALUVA.
    2    M.S MUHAMMED RIYAS (NOW MAJOR)
         AGED 19 YEARS, S/O.SUBAIR M.K,
         MEETHARUPARAMBIL HOUSE, VADAKKEVEEDU,
         THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA.
    3    M.S SIYAN FATHIMA (MINOR),
         AGED 14 YEARS,
         D/O.SUBAIR REPRESENTED BY THEIR NEXT FRIEND AND
         MOTHER - VENUS C.S., MEETHARUPARAMBIL HOUSE,
         VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O,
         ALUVA.
    4    KUNJU MOHAMMED
         S/O.HYDROSE, MEETHARUPARAMBIL HOUSE, VADAKKEVEEDU,
         THONIYIL LANE, THOTTAKKATTUKARA P.O, ALUVA.
    5    NAFEESA
         W/O.KUNJUMOHAMMED, MEETHARUPARAMBIL HOUSE,
         VADAKKEVEEDU, THONIYIL LANE, THOTTAKKATTUKARA P.O,
         ALUVA.
         BY ADVS.
         SRI.REJI GEORGE
         SMT.ANUPAMA JOHNY


RESPONDENTS:

    1    THE ORIENTAL INSURANCE CO.LTD.,
         THIRUVANANTHAPURAM, REPRESENTED BY THE AUTHORISED
         SIGNATORY, THE ORIENTAL INSURANCE CO. LTD.,
 MACA NO.2715 OF 2016 & CO NO.24 OF 2017
                              4

         REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH,
         KOCHI 18.
    2    SUNIL LAL,
         THOOKUVILAXIL HARISREE,
         PAPPANAMKODE, TRIVANDRUM - 695018.
    3    RAMESH,
         S/O.CHINNASWAMY, VALLIKKUNNU HOUSE, ARATTUPUZHA,
         ARATTUPUZHA VILLAGE - 690515


     THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 23.03.2023, ALONG WITH MACA.2715/2016, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO.2715 OF 2016 & CO NO.24 OF 2017
                                       5

                            JUDGMENT

[MACA No.2715/2016 & C.O.No.24/2017]

This Appeal and Cross Objection assail the Award of the Motor

Accidents Claims Tribunal, Perumbavoor ('Tribunal', for short) in

OP(MV)No.758/2012.

2. On 22.01.2012, when Sri.Subair M.K. is stated to have

been standing in his property, watching plucking and removal of

arecanut trees by the offending Poclain, one of them fell on his head

and succumbed to the injuries on the way to the hospital. It is

asserted that the accident occurred on account of the negligence of

the driver of the Poclain; and consequently, the Cross Objectors filed

the afore Original Petition before the Tribunal, seeking

compensation of an amount of Rs.64,41,000/-, limited to

Rs.50,00,000/-; but which has been allowed only to a sum of

Rs.24,66,600/-.

3. The oriental Insurance Company Limited ('Insurance

Company', for short), which insured the offending Poclain, has filed

MACA No. 2715/2016, assailing the award of compensation as afore

as being both impermissible and excessive, contending that no

liability could have been cast upon them in any event; while the

claimants have filed C.O.No.24/2017, impugning the same Award on MACA NO.2715 OF 2016 & CO NO.24 OF 2017

the ground that it is inadequate.

4. I have heard Sri.A.R.George - learned counsel for the

appellant - Insurance Company and Smt.Anupama Johny - learned

counsel appearing for the Cross Objectors.

5. Sri.A.R.George vehemently argued that the pleadings and

evidence on record would clearly establish that no liability could

have been cast upon his client, because the alleged accident

happened in a private property and that the deceased was standing

in it without any authority. He argued that since this is not a public

place, the death - though unfortunate, cannot place any obligation

upon his client to honour the compensation computed by the

Tribunal.

6. Sri.A.R.George then alternatively contended that the

compensation awarded by the Tribunal is excessive, because it has

taken the notional income of the deceased to be Rs.12,000/-, without

any verifiable evidence; while granting excessive amounts under

various other heads, which are impermissible.

7. Sri.A.R.George added to his submissions saying that, in

any event, whatever be the notional income adopted, future

prospects of 30% could not have been added, has now been done by

the Tribunal, since National Insurance Company Ltd. v. Pranay MACA NO.2715 OF 2016 & CO NO.24 OF 2017

Sethi [2017 (4) KLT 662)] authorizes not more than 25% in the case

of a person of 42 years of age, which the deceased was at the time of

accident.

8. As his final submission, Sri.A.R.George pleaded that, if

this Court is not inclined to accept the first contention raised by him,

regarding lack of liability of his client, then liberty may be given for

recovering the compensation from the owner of the Poclain, since it

has been found by the Tribunal itself that the driver did not have a

valid licence to operate it at the time of the accident. He thus

prayed that this Appeal be allowed.

9. Smt.Anupama Johny - learned counsel for the Cross

Objectors, on the other hand, argued that her client was not a mere

'Coolie' or a person with an unascertainable income, but had

substantial earnings, as is evident from Ext.A8 - Income Tax

Returns. She, however, conceded that this Returns is for the

Assessment Year 2010-2011, while the accident happened in the

year 2012; but argued that it would clearly indicate that he was

earning very well even in the past years. She then added that since

the cross objectors are the wife, children and parents of the

deceased, each of them is entitled to be compensated for 'Loss of

Consortium'; but that learned Tribunal has granted only a MACA NO.2715 OF 2016 & CO NO.24 OF 2017

consolidated sum of Rs.1,00,000/- in the said head, which is

incorrect. She thus prayed that the Cross Objection be allowed and

the appeal be dismissed.

10. I have considered the afore rival submissions and have also

gone through the evidence on record.

11. On the question of income of the deceased, though the

cross objectors have claimed Rs.30,000/- per month, based on

Ext.A8 Income Tax Returns, I am of the firm view that the learned

Tribunal was without error in having not accepted it. This is

because, said document pertains to the Assessment Year 2010-2011,

which is for the financial year 2009-2010; while the accident

occurred nearly two years later. The figure mentioned in Ext.A8

certainly could not have been, therefore, adopted since, no one is

sure whether the deceased had the same income two years

thereafter. Obviously, the Tribunal could have only reckoned a

notional income, which in my view, it has done correctly, by

adopting Rs.12,000/-. I say so because, in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Company Ltd.

[(2011) 13 SCC 236], the Hon'ble Supreme Court had postulated

that, even in the case of a 'coolie' or a person with an MACA NO.2715 OF 2016 & CO NO.24 OF 2017

unascertainable income, in the year 2012 - when the accident

occurred - the minimum figure to be reckoned is Rs.8,500/-. Ext.A8

certainly shows that the deceased was not a 'coolie' and that he was

earning substantial income through his avocation. Therefore,

adoption of a figure of Rs.12,000/-, which is a mere Rs.3,500/- more

than what has been postulated in Ramachandrappa (Supra) for a

'coolie', cannot be found to be unjust or improper.

12. That said, the argument of Sri.A.R.George, that future

prospects could have been added only at the rate of 25% is on firm

ground because, Pranay Sethi (Supra) mandates so, in the case of

a person who was 42 years at the time of the accident, like the

deceased.

13. Further, again in Pranay Sethi (Supra), the Hon'ble

Supreme Court has said that not more than Rs.15,000/- each can be

awarded under the head 'Funeral Expenses' and 'Loss of Estate', but

the learned Tribunal has granted Rs.25,000/- under the former head.

Coming to the question of 'Loss of Consortium' since, the Cross

Objectors are the wife, children and parents of the deceased, they

are all entitled to Rs.40,000/- each, as per Pranay Sethi (Supra).

14. On the question of compensation under the head 'Pain and MACA NO.2715 OF 2016 & CO NO.24 OF 2017

Sufferings' and 'Love and Affection', it is now well settled, through

United India Insurance Company Ltd. v. Satinder Kaur @

Satwinder Kaur [(2021) 11 SCC 780], that same cannot be

awarded in the case where the 'Loss for Dependency' is adequately

awarded, since they will have to be subsumed into the latter. In this

regard, Sri.A.R.George is right, and I propose to accept his

contention.

15. The afore being so concluded, it now brings me to the

primary question whether the Insurance Company is right in

asserting that they are not responsible to honour the compensation.

As I have said above, Sri.A.R.George impels a contention that, since

the Poclain was in a private property and the deceased was standing

there without any authority, his death cannot be construed to be a

motor vehicle accident, thus bringing it within the ambit of Section

166 of the Motor Vehicles Act. For this, he relies upon the Police

Records, especially Ext.A6 - Charge Sheet, pointing out that it is

specifically stated therein that the Poclain was in the property of

Witness No.6 mentioned therein, while the deceased was standing

there as a mere spectator.

16. I am afraid that I cannot find favour with the afore MACA NO.2715 OF 2016 & CO NO.24 OF 2017

contentions of the Insurance Company because, the Poclain entered

the private property through a public road and was then engaged to

remove a tree which the driver ought to have done without

negligence. The Charge Sheet specifically records that the driver

acted with great amount of negligence and that the tree thereupon

fell on the deceased, killing him almost instantaneously. The factum

of the accident having been caused by the Poclain, which is a

registered motor vehicle, being not disputed, I fail to understand

how the Insurance Company can claim immunity from paying the

compensation, particularly when they admit that they had issued a

valid insurance policy in its favour.

17. This is more so because, Poclains are not expected to be

driven on a open road like any other motor vehicle, but is intended

to be used in properties, either for construction activities or for such

events, as we have seen in this case. Indubitably, therefore, the

argument of the Insurance Company, that they are not responsible

for the compensation awarded by the Tribunal, cannot find my

favour. I, therefore, repel this as being without any merit.

18. However, when I have said so, the question arises as to

whether the Insurance Company will be eligible to pay the MACA NO.2715 OF 2016 & CO NO.24 OF 2017

compensation to the Cross Objectors and recover it from the owner

of the Poclain. When Ext.A6 - Charge Sheet clearly says that the

driver did not have a valid licence and when the Tribunal has not

found it to the contrary, this request certainly becomes tenable.

In the afore circumstances this appeal and Cross Objection are

disposed of in the following manner:

(a) The compensation under the head 'Loss of Consortium' is

enhanced to Rs.2,00,000/-, from Rs.1,00,000/- awarded by the

tribunal, reckoning Rs.40,000/- each to the Cross Objectors, as per

Pranay Sethi (Supra).

(b) The compensation under the head 'Loss of Dependency' is

reduced to Rs.18,90,000/-, from Rs.19,65,600/-, maintaining the

notional income of the deceased to be Rs.12,000/- per month, but

adding to it only 25% towards future prospects and deducting 1/4th

towards his personal expenses, as per Sarla Verma v. Delhi

Transport Corporation [2010 (2) KLT 802] and Pranay Sethi

(Supra).

(c) The compensation under the head 'Funeral Expenses' is

reduced to Rs.15,000/-, from Rs.25,000/- as per Pranay Sethi

(Supra).

MACA NO.2715 OF 2016 & CO NO.24 OF 2017

(d) The compensation awarded by the Tribunal under the head

'Pain and Sufferings' and 'Love and Affection' is both deleted.

Consequently, the Cross Objectors will be at full liberty to

recover the compensation, as enhanced by this Court, from the

Insurance Company, along with interest at the rate of 8% (reducing

the rate of interest of 9% granted by the Tribunal, taking note of the

standards of the year 2012 - when the accident happened), from the

date of claim, until it is recovered. They will also be entitled to

proportionate costs on the enhanced amount as ordered by the

Tribunal.

The Insurance Company is allowed liberty to recover the

compensation as modified above from the owner of the offending

vehicle after they honour it in favour of the Cross Objectors.

In view of the afore, the sums as fixed above, shall be deposited

by the Insurance Company before the learned Tribunal, within a

period of two months from the date of receipt of a copy of this

judgment.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/24.3