Kerala High Court
N.P.Joy vs Ebrahim Badusha.N.R on 6 November, 2024
MACA No.451 of 2021 1 2024:KER:84552
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TH
WEDNESDAY, THE 6 DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
MACA NO. 451 OF 2021
AGAINST THE AWARD DATED 25.08.2020 IN O.P.(M.V) NO.519 OF 2019 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANTS/PETITIONERS:
1 N.P.JOY
AGED 59 YEARS
S/O PAILY @ VARKEY OUSEPH, NEDIYEDATH HOUSE,
PUTHUPADY KARA, PUTHUPADY P.O.
KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK,
ERNAKULAM DISTRICT, PIN-686 673.
2 THANKACHAN N.O,
AGED 57 YEARS
S/O VARKEY OUSEPH, NEDIYEDATH HOUSE,
PUTHUPADY KARA, PUTHUPADY P.O.,
KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK,
ERNAKULAM DISTRICT, PIN-686 673.
3 ELIYAS N.J,
AGED 54 YEARS
S/O JOSEPH @ VARKEY OUSEPH, NEDIYEDATH HOUSE,
PUTHUPADY KARA, PUTHUPADY P.O.
KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK,
ERNAKULAM DISTRICT, PIN-686 673.
4 N.J.SAJEEV,
AGED 49 YEARS
S/O N.V JOSEPH @ VARKEY OUSEPH,
NEDIYEDATH HOUSE,PUTHUPADY KARA, PUTHUPADY
P.O.KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK,
ERNAKULAM DISTRICT, PIN-686 673.
BY ADVS.
DILEEP VARGHESE
SRI.K.K.KURUVILLA
SMT.TESMY VARGHEESE
MACA No.451 of 2021 2 2024:KER:84552
RESPONDENTS/RESPONDENTS:
1 EBRAHIM BADUSHA.N.R
S/O RASHEED N.M, NEDUMBILLIYIL HOUSE,
VANNAPPURAM P.O.THODUPUZHA, PIN-685 607.
2 UNITED INDIA INSURANCE CO LTD,
REPRESENTED BY ITS MANAGER, PRAKSH BUILDING,
T.B. JUNCTION, THODUPUZHA, PIN-685 584
BY ADV SRI.RAJAN P.KALIYATH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
01.10.2024, THE COURT ON 06.11.2024 DELIVERED THE FOLLOWING:
MACA No.451 of 2021 3 2024:KER:84552
JUDGMENT
Can married and earning sons of a deceased claim
dependency compensation under Section 166 of the Motor
Vehicles Act, 1988, is the question that falls for consideration in
the present appeal.
2. Succinctly stated, the facts are as follows:
The appellants are the claimants before the Motor Accidents
Claims Tribunal, Muvattupuzha in OP(MV) No.519/2019. On
27.3.2019 at 6 p.m. Sri.Varkey Ouseph @ Paily, father of
appellants 1 to 4 was crossing the Erumalappady-Puthuppady
road and when he reached the place of accident, he was hit down
by a scooter. Though he was taken to MCS Hospital,
Muvattupuzha and thereafter to Medical Trust Hospital,
Ernakulam, he succumbed to the injuries on 30.3.2019. For
claiming compensation, the appellants approached the Motor
Accidents Claims Tribunal, Muvattupuzha. The insurance
company appeared and filed a written statement, inter alia
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admitting the policy, however, the liability was denied on the
ground that there was no negligence on the part of the rider of the
scooter. The claimants-appellants contended that the deceased
was an agriculturist earning an income of Rs.15,000/- per month.
The insurance company, on the other hand, contended that there
was no evidence to establish that the deceased was earning
Rs.15,000/- towards the monthly income. Based on the pleadings
on record, the tribunal framed the following issues:
"1. Whether the accident is the result of
st
negligence on the part of the 1 respondent?
2. Whether the petitioners are entitled to get any
compensation from the respondents? If so, what is
the quantum?
3. Relief and costs."
3. On behalf of the claimants-appellants, Exts.A1 to A11
were marked. The tribunal considering the age of the deceased,
proceeded to fix the income notionally. The income fixed by the
tribunal was Rs.5,000/-. However, the Tribunal did not grant
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any compensation for the loss of dependency on the ground that
the claimants-appellants are not dependent on the deceased,
since they were married and earning sons. Aggrieved by the
aforesaid findings, the appellants have approached this Court in
the present appeal.
4. Heard Sri.Dileep Varghese, learned counsel appearing
for the appellants and Sri.Rajan P. Kaliyath, the learned counsel
appearing for the 2nd respondent insurance company.
5. The learned counsel appearing for the appellants
contended that the finding of the tribunal regarding the appellants'
entitlement to claim compensation under the head loss of
dependency is per se erroneous. The tribunal erred egregiously in
disallowing the claim after fixing the income notionally. The
income fixed by the tribunal at Rs.5,000/- was meagre, especially
since the appellants claimed that the deceased was an agriculturist
and that there was no contra evidence to that effect from the
insurance company. Therefore, according to the learned counsel
for the appellants, the tribunal ought to have fixed the income
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more than the notional income liable to be fixed going by the
judgment of the Supreme Court in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance Company
Ltd. [(2011) 13 SCC 236]. In support of his contention
regarding the claim for loss of dependency, the learned counsel
appearing for the appellants relied on the judgment of the Hon'ble
Supreme Court in National Insurance Company Ltd. V.
Birender & Ors [(2020) 11 SCC 356], United India
Insurance Company Ltd. v. Shalumol [2021 (5) KLT 74]
and in C.Vinod Kumar v. Uma Rani [MACA No.1957/2015
dated 2.4.2024].
6. On the other hand, the learned counsel appearing for the
insurance company submitted that the appellants cannot be
considered to be dependent on the deceased Varkey Ouseph. He
further pointed out that the appellants are major sons residing
separately and are not dependent on their father. In support of his
contention, the learned counsel relied on the judgments of the
Division Bench of this Court in Thressiamma v. State Express
MACA No.451 of 2021 7 2024:KER:84552
Transport Corporation (TN) Ltd. [2016 (1) KLT 190] and
Joseph v. Giji Varghese [2009 (4) KLT 199] and the decision
of the Hon'ble Supreme Court in New India Assurance
Company Ltd. v. Yogesh Jain and Others [(2018) 3 SCC
619], to substantiate his contention.
7. I have considered the rival submissions raised across the
bar.
8. Based on the rival submissions raised across the bar,
this Court feels it appropriate to deal with three questions;
(1) Whether the appellants are dependent on the deceased
Varkey Joseph;
(2) Whether the notional income fixed by the tribunal at
Rs.5,000/- was proper and
(3) Whether the appellants are entitled to enhancement of
compensation under various non-pecuniary heads.
9. The question as to whether the appellants--claimants
are entitled to dependency compensation would largely depend
upon the entitlement to maintain an application before the Motor
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Accidents Claims Tribunal. It is pertinent to mention that the
Motor Vehicles Act, 1988 does not define the word "dependent".
However, the Motor Vehicles Act, 1988 specifically provides that
an application under Section 166 could be maintained by all or any
of the legal representatives. It is pertinent to mention that the
word "legal representative", is also not defined under the Motor
Vehicles Act, 1988. However, Rule 2(k) of the Kerala Motor
Vehicles Rules, 1989 defines the word "legal representative" and
the same reads as under:
"2(k) "Legal representative" means a person who
in law is entitled to inherit the estate of the deceased if
he had left any estate at the time of his death and also
includes any legal heir of the deceased and the
executor or administrator of the estate of the
deceased;"
The reading of Rule 2(k) of the Kerala Motor Vehicles Rules, 1989
shows that any legal heir of the deceased is entitled to maintain an
application under Section 166 of the Motor Vehicles Act, 1988.
10. Having extracted the provision as above, this Court will
have to see whether a legal representative who is not dependent on
MACA No.451 of 2021 9 2024:KER:84552
the deceased could still claim compensation under the Motor
Vehicles Act, 1988.
11. The question as to whether a legal representative,
though not dependent on the deceased is entitled to maintain a
claim under Section 166 is not dependent on the deceased, could
still claim compensation came up for consideration before the
Hon'ble Supreme Court in Birender (supra). Paragraph 12 of the
judgment reads as under:
12. The legal representatives of the deceased could
move application for compensation by virtue of
clause(c) of the Section 166(1) . The major married son
who is earning and not fully dependent on the
deceased, would be still covered by the expression
"legal representative" of the deceased. This court in
Manjuri Bera Vs Oriental Insurance Co Ltd (2007)10
SCC 643, had expounded that liability to pay
compensation under the Act does not cease because of
absence of dependency of the legal representative
concerned. Notably, the expression "legal
representative" has not been defined in the
Act............"
12. In Manjuri Bera v. Oriental Insurance Company
Ltd. [(2007) 10 SCC 643], the Hon'ble Supreme Court
considered this question and found that even if there is no loss of
MACA No.451 of 2021 10 2024:KER:84552
dependency, the claimant, if he was a legal representative, will be
entitled to compensation. The Hon'ble Supreme Court in
Birender (supra), applied the principles laid down by the
Supreme Court in Manjuri Bera (supra)
13. In C.Vinod Kumar v. Uma Rani [MACA
No.1957/2015 dated 2.4.2024], a learned Single Bench of this
Court had occasion to consider this issue again. The learned single
judge found that in respect of the claim under the head 'loss of
estate', while calculating the loss, the same procedure for
determination of the loss of dependency has to be adopted. It was
further held that, however, the difference should be with regard to
adopting the multiplicand.
14. Be that as it may, the issue regarding the right or
entitlement of married sons to claim compensation on the death of
their father being settled by the Supreme Court in
Birender (supra), this Court proceeds to consider the impact of
the two Division Bench judgments cited by the learned counsel
appearing for the insurance company. The first decision of the
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Division Bench is in Giji Varghese (supra). The Division Bench
was considering a claim under Section 163A of the Motor Vehicles
Act, 1988. After considering the case on facts, the Division Bench
held that even if the claim is under Section 163A, the dependency
of the claimants on the income of the deceased is 'nil' on the basis
of the factual situation, the compensation under the structured
formula of the Second Schedule could not be granted. Therefore, it
is explicitly clear that the Division Bench was dealing with a case
specifically on facts and therefore, the same cannot be said to have
laid down a proposition of law, to be followed by this Court.
15. The next decision cited across the Bar by the learned
counsel appearing for the insurance company is Thressiamma
(supra). A close reading of the decision of the Division Bench
shows that the claim was put forward by the claimants upon the
income of the deceased father aged 82 years. The Division Bench
held that the same could not be a ground to award compensation
towards the loss of dependency to the concerned claimants. While
arriving at the said findings, the Division Bench relied on the
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judgment of another Division Bench of this Court in Valsamma
v. Binu Jose [2014 (1) KLT 10]. No doubt, the Division Bench
in Thressiamma (supra) had held that the claim for dependency
cannot be maintained by the married sons of a deceased. The
pertinent question before this Court is as to whether the decision
of the Division Bench in Thressiamma (supra) lays down the
correct proposition of law. It is pertinent to mention that while
deciding the case in Thressiamma (supra), the Division Bench
did not take notice of the judgment of the Supreme Court in
Manjuri Bera (supra). Still further, insofar as the law relating to
the claim of the married sons to claim dependency compensation
in an application under Section 166 of the Motor Vehicles Act,
1988 having been settled by the Supreme Court in
Birender (supra), this Court has no hesitation in its mind to hold
that it is bound by the principles in Birender (supra) and not the
decision of the Division Bench in Thressiamma (supra). In fact,
this Court is of the view that once the principles laid down in
Birender (supra) holds the field, the decision in Thressiamma
MACA No.451 of 2021 13 2024:KER:84552
(supra) no longer can be applied. Therefore, in the light of the
judgment of the Supreme Court in Birender (supra), it has to be
necessarily construed that the principle laid down in
Thressiamma (supra) cannot be applied in the instance case.
Therefore, while answering question no.1 as framed by this Court
in this appeal, it is held that the appellants-claimants are entitled
to compensation under the head loss of dependency. The decision
of the Supreme Court in Yogesh Jain (Supra) relied on by the
learned counsel for the insurance company is also not applicable in
the present case in view of Birender(supra).
16. Coming forward to the next question, this Court has to
see as to whether the notional income fixed by the tribunal is
correct or not. It is pertinent to note that the Tribunal after having
found that there is no document produced for the purpose of
proving the income of the deceased at Rs.15,000/-, proceeded to
fix the same notionally. While fixing the income on a notional
basis, the tribunal has not given any specific reason as to why it
thought it to fix the income at Rs.5,000/-. It is pertinent to
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mention that going by the principle laid down in
Ramachandrappa (supra), the notional income ought to have
been fixed more than what has been fixed by the tribunal now.
The accident took place in the year 2019. Even going by the
principles laid down by the Supreme Court in Ramachandrappa
(supra), the claimants are entitled to have the income fixed at
Rs.12,000/-. The further question would be as to whether the
income of an agriculturist could be fixed at Rs.12,000/- which is
normally the notional income fixed in respect of a coolie worker.
The claimants have produced documents before this Court as
Annexure-A3, which is the ration card issued by the authorities. A
perusal of the ration card shows that the deceased was an
agriculturist. It has also come out that the insurance company did
not dispute the aforesaid claim of the appellants, although they
filed a written statement. In other words, no evidence was
adduced by the insurance company which leads to an irresistible
conclusion that the claim of the appellants that the deceased was
an agriculturist stood proved beyond doubt.
MACA No.451 of 2021 15 2024:KER:84552
17. While fixing the notional income, this Court is of the
considered view that the courts or tribunals cannot fix the income
of an agriculturist in par with that of a coolie worker. Therefore, it
is highly necessary to have an income fixed slightly more than that
of a coolie worker. Considering the peculiar facts and
circumstances, this Court finds that an amount of Rs.13,500/- can
be fixed as a notional income of the deceased Varkey Joseph.
18. Having fixed the notional income, this Court will have to
proceed to see as to whether what is the extent of compensation
the applicants are entitled to claim. Insofar as the loss of
dependency is concerned, it is to be noted that the tribunal has not
awarded any amount towards loss of dependency. Having fixed
the income at Rs.13,500/-, this Court proceeds to consider the
claim for loss of dependency as follows :
13,500X12x5X3/4 = 6,07,500/-
Under the various non-pecuniary heads also, the claimants are
entitled to compensation as given follows:
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Sl. Headings Awarded by the Additional
No. Tribunal compensation granted
by this Court
1 Loss of dependency, -- 6,07,500/-
estate and
expectation of life
2 Pain and suffering 10,000 5,000/-
Total additional compensation granted 6,12,500/-
by this Court
In the result, the appeal stands allowed. It is declared that
the appellants are entitled to have the enhanced compensation at
Rs.6,12,500/- (Rupees Six Lakh Twelve Thousand Five Hundred
only). The appellants shall also be entitled to interest at 7% from
21.6.2019 on the enhanced amount together with proportionate
costs. The insurance company shall pay the aforesaid amount
within one month from the date of receipt of a copy of this
judgment. The claimants shall furnish the details of the Bank
account to the insurance company for transfer of the amount. The
appeal is ordered accordingly.
Sd/-
EASWARAN S.
JUDGE
jg
MACA No.451 of 2021 17 2024:KER:84552
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE LAND TAX RECEIPT ISSUED FROM
VILLAGE OFFICE KOTHAMANGALAM
ANNEXURE A2 TRUE COPY OF RATION CARD ISSUED TO THE WIFE OF
1ST APPELLANT FROM TALUK SUPPLY OFFICE
KOTHAMANGALAM
ANNEXURE A3 TRUE COPY OF RATION CARD ISSUED TO THE WIFE OF
2ND APPELLANT FROM TALUK SUPPLY OFFICE
KOTHAMANGALAM
ANNEXURE A4 TRUE COPY OF RATION CARD ISSUED TO THE WIFE OF
3RD APPELLANT FROM TALUK SUPPLY OFFICE
KOTHAMANGALAM
ANNEXURE A5 TRUE COPY OF RATION CARD ISSUED TO THE WIFE OF
4TH APPELLANT FROM TALUK SUPPLY OFFICE
KOTHAMANGLAM
