Kerala High Court
The Branch Manager, Icici Lombard ... vs Saji K.Joy on 21 May, 2024
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
MACA NO.3038 OF 2016
AGAINST THE AWARD DATED 22.06.2016 IN OP(MV) NO.670 OF 2009 OF ADDITIONAL MOTOR ACCIDENTS
CLAIMS TRIBUNAL-III, PATHANAMTHITTA
APPELLANT/3RD RESPONDENT:
THE BRANCH MANAGER, I.C.I.C.I LOMBARD GENERAL INSURANCE CO. LTD.
PATHANAMTHITTA.P.O,REPRESENTED BY ITS LEGAL MANAGER,ICICI LOMBARD GENERAL
INSURANCE CO,KANNANKERY ESTATE,3RD FLOOR,SHANMUGHAM ROAD,MARINE
DRIVE,KOCHI-682031.
BY ADV. SRI.LATHEESH SEBASTIAN
RESPONDENTS/PETITIONERS & RESPONDENTS 1 AND 2:
1 SAJI K.JOY, S/O.K.E.JOYKUTTY,AGED 50 YEARS,
CHANGAYIL HOUSE,AIRAVON.P.O,KONNI,PATHANAMTHITTA DISTRICT-689690.
2 SHEEJA SAJI, W/O.SAJI K.JOY,AGED 46 YEARS,
CHANGAYIL HOUSE,AIRAVON.P.O,KONNI,PATHANAMTHITTA DISTRICT-689690.
3 HIBA MARIAM SAJI, AGED 9 YEARS,
D/O.SAJI.K.JOY,CHANGAYIL HOUSE,AIRAVON.P.O,KONNI,PATHANAMTHITTA
DISTRICT,MINOR,REPRESENTED BY FATHER AND NATURAL GUARDIAN,SAJI.K.JOY,
DO... DO... DO... PIN-689690.
4 KHALID.B., S/O.BABAKANNU RAWTHER,
THOTTUMKARA VEEDU,KUMMANNOOR.P.O,K0NNI,PATHANAMTHITTA-689691.
*5 JIJUMON.T.SAMUEL (DELETED)
THENGUVILA PUTHEN VEEDU,POOVANKUZHY,KOODAL.P.O,PATHANAMTHITTA-689693.
*RESPONDENT NO.5 IS DELETED FROM PARTY ARRAY AS PER ORDER DATED 19/02/2020
IN IA-1/19 IN MACA-3038/16)
R1 AND R2 BY ADVS.SRI.U.M.HASSAN
SMT.S.LEKHA
SRI.NAGARAJ NARAYANAN
SRI.PRATHAP PILLAI
SMT.P.PARVATHY
SRI.RAFEEK. V.K.
SRI.SAIJO HASSAN
SRI.VISHNU BHUVANENDRAN
R4 BY ADV.SRI.SHANAVAS KHAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2024, THE COURT ON
21.05.2024 DELIVERED THE FOLLOWING:
M.A.C.A. No. 3038 of 2016
-:2:-
MARY JOSEPH, J.
-----------------------
M.A.C.A. No. 3038 of 2016
-----------------------
Dated this the 21st day of May, 2024
JUDGMENT
The insurer of an autorickshaw bearing Registration No.KL-
03-F-6483 is the appellant herein challenging the quantum of
compensation stood awarded by the Tribunal in favour of the
petitioners who are legal representatives of a minor
named Alan Eapen Saji, who succumbed to the injuries
sustained in a motor accident by an award passed on 22.06.2016
in O.P.(MV) No.670/2009 by Additional Motor Accidents Claims
Tribunal-III, Pathanamthitta (for short 'the Tribunal').
2. For the sake of convenience, the parties to this appeal
will hereinafter be referred to as the petitioners and respondents
1 and 3 in accordance with their status in the Original Petition.
3. Averments of the petitioners are to the following
effect:
On 11.04.2009 at about 8:40 a.m. while a minor boy was
travelling in an autorickshaw bearing Registration
No.KL-03-G/527 through Konni-attachakkal public road, another
autorickshaw bearing Registration No.KL-03-F-6483 hit the same
at Konnithazhammuri and thereby he sustained serious injuries.
He was rushed to Jacob Memorial Hospital, Konni and therefrom
to Pushpagiri Medical College Hospital, Konni but he succumbed
to the injuries on 13.04.2009. Alleging negligence on the driver
of the autorickshaw bearing Registration No.KL-03-F-6483 and
claiming a sum of `15,00,000/- as compensation, the above
Original Petition was filed. The driver, the owner and the insurer
of the offending vehicle were arrayed respectively as respondents
1 to 3 in the Original Petition.
4. Respondents 1 and 2 did not contest the Original
Petition. 3rd respondent after entering appearance filed a written
statement admitting issuance of a valid policy for the
autorickshaw bearing Registration No.KL-03-F-6483, covering the
date of the motor accident. It was contended that the 1 st
respondent was not having a driving licence and by permitting
him to drive the vehicle, the insured has violated the policy
conditions. Challenge was also raised against the quantum
claimed as compensation, being excessive.
5. Before the Tribunal, Exts.A1 to A10 were marked in
evidence by the petitioners and Exts.B1 and B2, by the 3 rd
respondent. The Tribunal found on the basis of the evidence that
the motor accident was caused due to the rash and negligent
driving by the 1st respondent. Petitioners being the legal
representatives were found entitled to get compensation for the
death of the minor boy in the motor accident. A sum of
`17,12,000/- was arrived at as the compensation payable, with
interest at the rate of 9% per annum from the date of filing of
the Original Petition till the date of deposit and proportionate
costs.
6. According to the learned counsel for the 3 rd
respondent, the compensation stood awarded by the Tribunal is
excessive and therefore interference is required. According to
him, the Tribunal went wrong in fixing `5,000/- as the monthly
income of the deceased notionally and adding 50% to that in
consideration of loss of future prospects. According to him, the
Tribunal failed to deduct any amount in consideration of the
personal expenses the deceased would have met with, had he
been alive. According to him, the Tribunal went wrong in
awarding `13,50,000/- as compensation towards loss of
dependency and `3,00,000/- towards loss of love and affection.
1st respondent was contended as not possessing a badge for
driving the offending vehicle which is a transport vehicle and
therefore the 3rd respondent is not liable to indemnify the
insured. He seeks for grant of recovery right to the 3 rd
respondent from the insured.
7. In Ramachandran V. Unnikrishnan [2006 (2) KLT
SN 15 CN 20], it was held by this Court that mere absence of a
badge to drive a commercial vehicle is not sufficient, but it must
be proved that the motor accident was occurred for that reason
and then alone, the insurance company can get exoneration from
the liability for violation of policy conditions. In the case on
hand, apart from raising a contention regarding lack of badge,
steps were not taken by the 3 rd respondent to prove that the
motor accident was resulted from driving of the autorickshaw
without authorisation. Therefore, contention of the learned
counsel in that regard being devoid of merits, is discarded.
8. The learned counsel for the petitioners relied on
Mekala V. Malathi M. and Another [(2014) 11 SCC 178]
and Kajal V. Jagdish Chand and Others [(2020) 4 SCC 413]
to fortify his argument that the monthly income fixed by the
Tribunal notionally as `5,000/-, is a just and reasonable sum and
therefore interference is not required. In the cases referred to,
the compensation payable towards personal injuries sustained by
the victim are considered. It was held by the Apex Court in the
cases referred to that the fixation of monthly income in one case
cannot be adopted to another, since it is dependent on various
factors in each case.
9. In the case on hand, the deceased was aged 9 years.
The learned counsel for the petitioners canvassed on the basis of
Exts.A8 to 10 that the deceased has passed scholarship
examination conducted by PCM Pvt.Ltd. Apart from the above,
the petitioners failed to produce any documents to establish the
brilliance of the deceased either academically or in co-curricular
activities.
10. In the case on hand, compensation was sought for
death of a minor boy aged 9 years. The Apex Court has held in
Heshan Gopal and another v. Lala and others [(2014) 1
SCC 244] that in so far as the children of age group 10-15 are
concerned, contribution of the deceased to the family can be
taken as `24,000/- per annum. Therefore, this Court finds it
reasonable to fix `24,000/- as the annual income of the deceased
in the case on hand. The fixation of the monthly income as
`5,000/- is thus liable to be reversed. The victim of the motor
accident was at his age of 9 years and therefore he undoubtedly
has suffered loss of future prospects, in view of his untimely
death in the motor accident. In view of National Insurance
Company Limited V. Pranay Sethi and Ors. [2017
(4) KLT 662 (SC)], the victim being aged below 40 years,
40% is liable to be added towards future prospects. Accordingly
`33,600/-( [(`24,000/- + (`24,000x40/100)] is arrived at.
When compensation for loss of dependency is calculated on the
basis of the modified factors, `5,04,000/- ( `33,600/- x15) is
arrived at. It is noticed from the impugned award that the
Tribunal failed to award compensation towards loss of
consortium, though the petitioners include parents of the
deceased. Though an appeal was not filed by the petitioners, the
entitlement of the parents for getting compensation towards loss
of consortium being settled by the Constitution Bench of the
Apex Court as `40,000/- in Pranay Sethi supra, this Court is
inclined to award `80,000/- (`40,000/- x2) in favour of the
petitioners. Similarly, the Tribunal also failed to award
compensation in accordance with the direction issued by the
Constitution Bench of the Apex Court in Pranay Sethi supra.
The Tribunal has awarded an excess sum of `25,000/- towards
funeral expenses and `10,000/- only towards loss of estate. In
the above context, this Court is inclined to award `15,000/- each
as compensation also under the respective heads. Deceased was
survived by a sibling, who was his sister. In view of the factum
that the sibling lost her sole companion in the motor accident,
this Court is also inclined to award `20,000/- as compensation
towards loss of love and affection. For `25,000/- and
`3,00,000/- stood awarded by the Tribunal towards pain and
sufferings and loss of love and affection, petitioners 1 and 2 are
disentitled to. Therefore it is discarded. `2,000/- stood awarded
by the Tribunal towards transportation expenses is maintained.
The compensation payable to the petitioners is modified
accordingly.
11. Thus the petitioners will get `6,36,000/- (Rupees Six
Lakhs thirty six thousand only) ( `80,000/- + `15,000/- +
`15,000/- + `20,000/- +`2,000/- `5,04,000/-) instead of
`17,12,000/- stood awarded by the Tribunal. Though it was
contended that the 1st respondent was not holding a badge for
driving the vehicle, he has produced and marked Ext.B1 in
evidence, which would show that a badge was possessed by him
and it was valid from 23.04.2009 till 22.04.2012. The motor
accident being occurred on 11.04.2009, the 1 st respondent can
be taken as holding a valid badge on the strength of Ext.B1.
Admittedly the offending vehicle was insured with a valid policy
issued by the 3rd respondent. Therefore, the 3rd respondent is
liable to indemnify the insured as far as the compensation
payable is concerned.
12. In the result, the appeal is allowed. The petitioners
are entitled to get `6,36,000/- as compensation and that
amount will carry interest at the rate of 8% per annum from the
date of filing of the Original Petition till the date of realisation. 3 rd
respondent shall deposit the said amount in favour of the
petitioners with interest at the rate of 8% alongwith
proportionate costs. The disbursal of the amount shall be in
accordance with the directions issued by this Court in Circular
No.03/2019 dated 06.09.2019.
MACA stands allowed in part accordingly.
Sd/-
MARY JOSEPH,
JUDGE.
MJL
