Kerala High Court

Philip Joseph vs Thirumalaikumar .P on 4 June, 2024

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
     TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
                       MACA NO. 831 OF 2013
  AGAINST THE AWARD DATED 17.10.2012 IN OPMV NO.353 OF 2008 &
      ORDER DATED 31.01.2013 IN I.A. No.4484/2012 IN OP(MV)
   No.353/2008 OF MOTORS ACCIDENTS CLAIMS TRIBUNAL, MANJERI &
APPELLANTS/PETITIONERS:

1 PHILIP JOSEPH
  S/O. JOSEPH, ERUPPAKKATTU HOUSE,
  ARIVILANJPOYIL P.O., ALLAKKODE AMSOM,
  DESOM, KANNUR DISTRICT, NOW RESIDING AT
  NELLIKKATTUTHODI HOUSE, KALLEMPADAM,
  NILAMBUR P.O., MALAPPURAM DISTRICT.

2 LEELAMMA PHILIP
  W/O. PHILIP JOSEPH, ERUPPAKKATTU HOUSE,
  ARIVILANJPOYIL P.O., ALLAKKODE AMSOM,
  DESOM, KANNUR DISTRICT, NOW RESIDING AT
  NELLIKKATTUTHODI HOUSE, KALLEMPADAM,
  NILAMBUR P.O., MALAPPURAM DISTRICT.

  BY ADVS.
  SRI.K.M.SATHYANATHA MENON
  SMT.KAVERY S THAMPI

RESPONDENTS/RESPONDENTS:

1 THIRUMALAIKUMAR .P
  S/O. PALANIVEL SWAMY, 99, 1ST STREET,
  KESAVAPURAM, PULIYARAI, SHEWCOTTAI,
  TAMIL NADU.

2 K.S.HEMAMANLINI
  W/O. H.MAHADEVAN, SAROJ NIVAS, PUDIYA
  ROAD J.N.(P.O.), IRUMPANAM DISTRICT,
  TAMIL NADU STATE.

3 NATIONAL INSURANCE COMPANY LTD.
  BRANCH OFFICE, KORAMBAYIL ARCADE,
  PANDIKKAD ROAD, MANJERI P.O.,
  MALAPPURAM DISTRICT-676 121.
 MACA No.831 of 2013               2


4 RENJITH PHILIP
  S/O. PHILIP JOSEPH, ERUPPAKKATTU HOUSE,
  ARIVILANJPOYIL P.O., ALLAKKODE AMSOM,
  DESOM, KANNUR DISTRICT-670 571.

5 RELIANCE GENERAL INSURANCE COMPANY LTD.
  XL/3599, 4TH FLOOR, ELIZABETH ALEXANDER
  MEM. BUILDING, SHANMUGHAM ROAD, MARINE
  DRIVE, KOCHI-682 036.

  R3 BY SMT.DEEPA GEORGE, SC.

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA No.831 of 2013                   3


                            JUDGMENT

The claimants in OP(MV) No.353 of 2008 on the file of Motor

Accidents Claims Tribunal, Manjeri filed this appeal challenging the

award on the ground of inadequacy of compensation, as well as

challenging the order in I.A No.4484 of 2012, by which the review

petition filed by the 5th respondent/insurer was allowed exonerating

them from compensating the appellants.

2. One Mr.Sreejith Philip, son of the appellants, died in a road

traffic accident occurred on 29.06.2007 at 3 a.m. While he was driving

KL-59/172 TATA India car from Kannur to Thrissur, KL-7/AL 9462

Tanker lorry driven by the 1st respondent in a rash and negligent

manner dashed against his car, and he sustained serious injuries and

died on the spot. He was a 31 year old Yoga Therapist in Moscow,

earning monthly income of Rs.1,50,000/-. His parents approached the

Tribunal claiming compensation of Rs.4 lakh and learned Tribunal

awarded Rs.2,07,000/-, and directed the 3rd respondent/insurer of the

tanker lorry and 5th respondent/insurer of the TATA India car to share

the liability equally. So, 50% of the compensation amount was to be

paid by the 3rd respondent/insurer of the tanker lorry and remaining

50% by the 5th respondent/insurer of the TATA India car.

3. The 5th respondent/insurer of the TATA India car filed I.A

No.4484 of 2012 to exonerate them from the liability to pay 50% of

the compensation amount, as they had no liability to compensate the

legal heirs of the driver of the TATA India car, who contributed equally

towards the accident. Learned Tribunal allowed that application, and

exonerated them from making 50% of the compensation amount to

the appellants/claimants. Challenging the award as well as the order

in I.A No.4484 of 2012, the claimants have come up with this appeal.

4. In the appeal, the 3rd respondent/insurer of the tanker lorry

entered appearance and admitted the policy of the tanker lorry as on

the date of accident. They have no dispute with respect to the

compensation awarded by the Tribunal, making them liable to pay

50% of the award amount.

5. Now this Court is called upon to find out whether there is any

illegality, irregularity or impropriety in the Award of the Tribunal as well

as in the order in I.A No.4484 of 2012, warranting interference by this

Court.

6. Heard learned counsel for the appellants and learned counsel

for the 3rd respondent/insurer of the tanker lorry.

7. Though the appellants were claiming in the claim petition that

the deceased was a passenger in the TATA Indica car involved in the

accident, it has come out in evidence that, the deceased was actually

driving the car at the time of accident. Exts.B1 and B2, copy of A

charge and B charge, will show that the driver of the car as well as the

driver of the tanker lorry contributed equally towards the accident, and

no contra evidence is forthcoming to rebut the findings in Exts.B1 and

B2. So, learned Tribunal found that, both R3 and R5, the insurer of

the tanker lorry as well as of the TATA India car, were equally liable to

compensate the legal heirs of the deceased and the liability was

apportioned among them, equally. But, in the review petition, learned

Tribunal found that the deceased driver of the TATA India car

contributed equally towards the accident and he actually stepped into

the shoes of the owner of the car, and so the insurer of that car was

not liable to compensate his legal heirs, even to the extent of 50%.

8. Learned counsel for the 3rd respondent, relying on the

decision Jiljet and another v. Stamphen George and others [2018

(5) KHC 206], argued that, when a person driving the vehicle gets

himself injured, the insurer is not liable to compensate him as he will

not come under the definition of a 3rd party. In a case of

comprehensive policy also, where no wider coverage is provided in

respect of the rider, by paying any additional premium, then also the

insurer is not liable to compensate the rider.

9. Based on the law declared by the Apex Court in Ningamma

and another v. United India Insurance Company Ltd [2009 KHC

5046], this Court held that the rider who rides the motorcycle after

borrowing it from the insured will step into the shoes of the insured.

What is required to be insured mandatorily as per Section 147 of the

Motor Vehicles Act is the liability towards 3rd party and the

insured/person riding the motorcycle, will not be a 3rd party. If at all

anybody else is to be covered, particularly the insured (whose liability

towards 3rd party is agreed to be satisfied by the insurer), wider

coverage has to be obtained by paying additional premium. There is

no concept of owner/insured becoming liable to pay compensation to

himself under any circumstances and as such no liability can be shifted

to the shoulders of the insured.

10. Based on the principles laid down in Ningamma's case, which

was followed by this Court in Jiljet's case cited supra, the driver of the

car who stepped into the shoes of the owner of the car was not liable

to be compensated by the insurer of the car, as he will not come under

the definition of a 3rd party. Policy certificate of the car was not

produced to show that it was a comprehensive policy with wider

coverage covering the insured/driver by paying any additional

premium. So, this Court finds no illegality or irregularity in the order

of the learned Tribunal in I.A No.4484 of 2012, exonerating the

5th respondent/insurer of the car from, making compensation to the

appellants.

11. Now coming to the quantum dispute, learned counsel for the

appellants would submit that, the deceased Sreejith Philip was a 31

year old Yoga Therapist in Moscow, earning monthly income of

Rs.1,50,000/-. In the absence of any evidence to prove his monthly

income, learned Tribunal fixed his notional income @ Rs.3,500/-.

12. Relying on the decision Ramchandrappa vs. Manager,

Royal Sundaram Alliance Insurance Company Limited (AIR 2011

SC 2951), learned counsel for the appellants would submit that, in the

year 2007, even a coolie worker was entitled to get his notional

income fixed @ Rs.6,000/-. Even in the absence of any evidence to

prove monthly income of the deceased, based on Ramchandrappa's

case cited supra, this Court is inclined to fix his notional income as

Rs.6,000/-. Since he was aged below 40, 40% addition could have

been given towards future prospects and so, his income could have

been fixed as Rs.8,400/- (6000+40%). Since he was a bachelor, 50%

was liable to be deducted towards his personal expenses. So, the

balance income would be Rs.4,200/-. The multiplier applicable was

16, as he was aged 31. So, the compensation for loss of dependency

could have been assessed as Rs.8,06,400/- (4200x12x16). After

deducting Rs.1,89,000/- already awarded by the Tribunal, appellants

are entitled to get the balance Rs.6,17,400/-under the head loss of

dependency.

13. Towards transportation expenses, though the appellants

claimed Rs.10,000/-, no amount was awarded by the Tribunal.

Immediately after the accident, the deceased was taken to hospital

and on his death, his body was taken to his house at Kannur. So, this

Court is inclined to award Rs.3,000/- towards transportation expenses.

14. Towards damage to clothing also, no amount was given by

the Tribunal. So, this Court is inclined to award Rs.500/- under that

head.

15. Towards loss of consortium, the appellants, who are the

parents of the deceased, are entitled to get Rs.40,000/- each based on

the decision National Insurance Company Ltd. v. Pranay

Sethi and others, [(2017) 16 SCC 680]. Learned Tribunal

awarded Rs.10,000/- only under the head loss of love and affection.

After deducting that amount, the appellants are entitled to get

Rs.70,000/- as compensation under the head loss of consortium.

16. Towards loss of estate, learned Tribunal awarded only

Rs.5,000/-. Based on Pranay Sethi's case cited supra, the appellants

are entitled to get Rs.15,000/-. So, the balance amount entitled will

come to Rs.10,000/-.

17. For funeral expenses also, the amount awarded by the

Tribunal i.e. Rs.3,000/- is on the lower side. Based on Pranay Sethi's

case, the appellants are entitled to get Rs.15,000/-. So, the balance

amount entitled will come to Rs.12,000/-.

                           Amount             Amount       Difference to
       Head of claim    awarded by the       awarded in     be drawn as
                           Tribunal            appeal        enhanced
                                                           compensation
            (1)              (2)                 (3)            (4)

   Loss of dependency   Rs.1,89,000/-    Rs.8,06,400/-     Rs.6,17,400/-

   Transportation             -              Rs.3,000/-      Rs.3,000/-
   expenses

   Damage to clothing         -               Rs.500/-       Rs.500/-

   Loss of love and      Rs.10,000/-         Rs.80,000/-    Rs.70,000/-
   affection/ loss of
   consortium

   Loss of estate         Rs.5,000/-         Rs.15,000/-    Rs.10,000/-

   Funeral expenses       Rs.3,000/-         Rs.15,000/-    Rs.12,000/-

   Total                Rs.2,07,000/-    Rs.9,19,900/-     Rs.7,12,900/-

18. In the result, the appellants are entitled to get Rs.7,12,900/-

(Rupees Seven lakh twelve thousand nine hundred only) as enhanced

compensation. But, they are entitled to get only 50% of that amount,

as the deceased contributed equally towards the accident. So, they

are entitled to get Rs.3,56,450/- (Rupees Three lakh fifty six thousand

four hundred and fifty only) as enhanced compensation, and the

3rd respondent/insurer of the tanker lorry is liable for the same.

The 3rd respondent-National Insurance Company Ltd, the insurer

of the tanker lorry, is directed to deposit the enhanced compensation

of Rs.3,56,450/- (Rupees Three lakh fifty six thousand four hundred

and fifty only) with interest @ 9% per annum from the date of petition

till the date of deposit before the Motor Accidents Claims Tribunal,