Disposed

Sri.R.M.Joshy v. Sri.Pushkaran and Others

Kerala HC29 Oct 2018MACA/2084/2008

Case brief

AI extract

What is this about?

Compensation for three motor accident deaths was enhanced. The court held that an empty lorry proceeding for repair after surrender of its permit fell within the statutory exemption. It set aside recovery against the owner and directed the insurer to satisfy the modified awards with interest and proportionate costs.

What did the court decide?

Compensation enhanced; recovery against the owner set aside; insurer directed to satisfy modified awards within thirty days with 9% interest and proportionate costs, and 12% interest from default.

Sri.R.M.Joshy Vs Sri.Pushkaran and Others — Insurance | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶4

MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940

¶5

MACA.No. 2084 of 2008

¶6

AGAINST THE AWARD IN OPMV 1875/2001 of MACT, IRINJALAKUDA DATED 20-05-2008

¶7

¶8

APPELLANT/2 RESPONDENT IN THE OP(MV):

¶9

*1 SRI.R.M.JOSHY, S/O.RAMANKULATH MADHAVAN, RAMANKULATH HOUSE, KOTTANELLUR VILLAGE,, IRINJALAKUDA, MUKUNDAPURAM-TALUK, THRISSUR DIST. - DIED

¶10

2 SMT.AMBIKA W/O LATE R M JOSHY,RAMANKULATH HOUSE, KOTTANELLUR VILLAGE,MUKUNDAPURAM TALUK,THRISSUR DISTRICT

¶11

3 SMT.SHIMA JOSHY D/O LATE R M JOSHY, RAMANKULATH HOUSE, KOTTANELLUR VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DISTRICT

¶12

4 SMT.BINISHA JOSHY

¶13

D/O LATE R M JOSHY,RAMANKULATH HOUSE, KOTTANELLUR,MUKUNDAPURAM TALUK,THRISSUR

¶14

**(LR'S OF DECEASED SOLE APPELLANT ARE IMPLEADED AS SUPPLEMENTARY APPELLANTS 2 TO 4 VIDE ORDER 22/08/2012 IN IA 558/2010 IN MACA 2084/2008)*

¶15

BY ADV. SRI.M.C.GOPI

¶16

RESPONDENTS/APPLICANTS AND RESPONDENTS 1 AND 3 IN THE OP(MV):

¶17

1 SRI.PUSHKARAN, S/O.KOOVELI VELAYUDHAN, KOOVELI HOUSE, PADIYOOR.P.O, MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.

¶18

2 SMT.LEELA, W/O.KOOVELI PUSHKARAN, DO. DO.

¶19

3 SRI.JYOTHI, S/O.KOOVELI PUSHKARAN, DO. DO.

¶20

4 SMT.PAURNAMY, D/O.KOOVELI PUSHKARAN, DO. DO.

¶21

5 SRI.SURESHKUMAR.M, S/O.ATTUPURAM MUTHU ATTUPURAM HOUSE, EDATHARA.P.O, PALAKKAD DISTRICT.

¶22

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶23

¶24

6 THE MANAGER, NATIONAL INSURANCE CO.LTD, BRANCH OFFICE, M.G.ROAD, THRISSUR.PO.

¶25

BY ADVS. SRI.M.A.GEORGE SRI.JOE KALLIATH

¶26

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.10.2018, ALONG WITH MACA.2670/2008, MACA.2685/2008, MACA.2113/2008, MACA.2149/2008, MACA.2654/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶27

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶28

¶29

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶30

PRESENT

¶31

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶32

MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940

¶33

MACA.No. 2113 of 2008

¶34

AGAINST THE AWARD IN OPMV 1876/2001 of MACT, IRINJALAKUDA DATED 20-05-2008

¶35

APPELLANTS/2ND RESPONDENT IN THE OP(MV):

¶36

*1 SRI.R.M.JOSHY, SO/.RAMANKULATH MADHAVAN RAMANKULATH HOUSE,, KOTTANELLUR VILLAGE, IRINGALAKUDA,, MUKUNDAPURAM TALUK,THRISSUR DISTRICT.- DIED

¶37

2 SMT.AMBIKA W/O LATE R.M.JOSHY, RMANKULATH HOUSE, KUTTANELLOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DT.

¶38

3 SMT.SHIMA JOSHY, D/O.LATE R.M. JOSHY, AGED 22 YEARS RAMANKULATH HOUSE, KOTTANELLUR VILLAGE, MUKUNDAPURAM THALUK, THRISSUR DT.

¶39

4 SMT.BINSHA JOSHY,D/O.LATE R.M JOSHY, RAMANKULATH HOUSE, KOTTANELLUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT,

¶40

*SUPPLEMENTAL APPELLANTS 2 TO 4 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT VIDE ORDER DATED 18.02.2010 IN IA 432/2010

¶41

BY ADV. SRI.M.C.GOPI

¶42

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶43

¶44

RESPONDENTS/APPLICANTS AND RESPONDENTS IN THE OP(MV):

¶45

1 SRI.PUSHKARAN, S/O.KOOVELI VELAYUDHAN, KOOVALI HOUSE, PADIYOOR P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

¶46

2 SMT. LEELA, W/O. KOOVELI PUSHKARAN -DO- -DO-

¶47

3 SRI. JYOTHI, S/O. KOOVELI PUSHKARAN -DO- -DO-

¶48

4 SMT. PAURNAMY, D/O. KOOVELI PUSHKARAN -DO- -DO-

¶49

5 SRI. SURESHKUMAR.M., S/O. ATTUPURAM MUTHU ATTUPURAM HOUSE, EDATHARA P.O., PALAKKAD DISTRICT.

¶50

6 THE MANAGER, NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, M.G.ROAD,, THRISSUR P.O.

¶51

7 SRI. K.V. BHASKARAN, S/O. KURUNJIKODAN VELAYUDHAN, KURUNJIKODAN HOUSE,, KUTTICHIRA P.O., THRISSUR DISTRICT.

¶52

8 SMT.SRASWATHY, W/O. KURUNJIKODAN BHASKARAN, -DO- -DO-

¶53

9 K.B.AJESH, S/O. KURUNJIKODAN BHASKARAN, DO- -DO-

¶54

10 SRI. K.B.ABILASH, S/O. KURUNJIKODAN BHASKARAN, -DO- -DOBY ADVS. SRI.JOE KALLIATH SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN

¶55

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.10.2018, ALONG WITH MACA.2670/2008, MACA.2685/2008, MACA.2084/2008, MACA.2149/2008, MACA.2654/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶56

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶57

¶58

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶59

PRESENT

¶60

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶61

MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940

¶62

MACA.No. 2149 of 2008

¶63

AGAINST THE AWARD IN OPMV 1877/2001 of MACT, IRINJALAKUDA DATED 20-05-2008

¶64

APPELLANTS/2ND RESPONDENT IN THE OP(MV):

¶65

*1 SRI.R.M.JOSHY, SO/.RAMANKULATH MADHAVAN RAMANKULATH HOUSE,, KOTTANELLUR VILLAGE, IRINGALAKUDA,, MUKUNDAPURAM TALUK,THRISSUR DISTRICT.- DIED

¶66

2 SMT.AMBIKA W/O LATE R.M.JOSHY, RMANKULATH HOUSE, KUTTANELLOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DT.

¶67

3 SMT.SHIMA JOSHY, D/O.LATE R.M. JOSHY, AGED 22 YEARS RAMANKULATH HOUSE, KOTTANELLUR VILLAGE, MUKUNDAPURAM THALUK, THRISSUR DT.

¶68

4 SMT.BINSHA JOSHY, D/O.LATE R.M JOSHY, RAMANKULATH HOUSE, KOTTANELLUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT,

¶69

*SUPPLEMENTAL APPELLANTS 2 TO 4 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED SOLE APPELLANT VIDE ORDER DATED 19.02.2010 IN IA NO.455/2010

¶70

BY ADV. SRI.M.C.GOPI

¶71

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶72

¶73

RESPONDENTS/APPLICANTS AND RESPONDENTS 1 AND 2 IN THE OP(MV):

¶74

1 SRI.PUSHKARAN, S/O.KOOVELI VELAYUDHAN, KOOVELI HOUSE, PADIYOOR P.O., MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.

¶75

2 SMT.LEELA, W/O.KOOVELI PUSHKARAN DO, DO.

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3 SRI.JYOTHI, S/O. KOOVELI PUSHKARAN -DO-.

¶77

4 SMT.PAURNAMY, D/O.KOOVELI PUSHKARAN -DO-.

¶78

5 SRI.SURESHKUMAR.M., S/O.ATTUPURAM MUTHU ATTUPURAM HOUSE, EDATHARA P.O., PALAKKAD DISTRICT.

¶79

6 THE MANAGER, NATIONAL INSURANCE CO. LTD. BRANCH OFFICE, M.G.ROAD, THRISSUR P.O..

¶80

BY ADVS. SRI.JOE KALLIATH SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN

¶81

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.10.2018, ALONG WITH MACA.2670/2008, MACA.2685/2008, MACA.2084/2008, MACA.2113/2008, MACA.2654/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶82

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶83

¶84

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶85

PRESENT

¶86

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶87

MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940

¶88

MACA.No. 2654 of 2008

¶89

AGAINST THE AWARD IN OPMV 1875/2001 of MACT, IRINJALAKUDA DATED 20-05-2008

¶90

APPELLANTS/PETITIONERS

¶91

1 SRI.PUSHKARAN, S/O.KOOVELI VELAYUDHAN, PADIYOOR VILLAGE, MUKUNDAPURAM TALUK

¶92

2 SMT.LEELA, W/O.KOOVELI PUSHKARAN

¶93

DO, DO.

¶94

BY ADVS.

¶95

SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH

¶96

RESPONDENTS/RESPONDENTS:

¶97

1 SURESHKUMAR M., S/O.ATTUPURAM MUTHU, EDATHARA, PALAKKAD.

¶98

*2 R.M.JOSHY, S/O RAMANKULATH MADHAVAN, KOTTANELLUR, IRINJALAKUDA, THRISSUR DISTRICT. - DIED

¶99

3 THE MANAGER, NATIONAL INSURANCE CO.LTD BRANCH OFFICE, THRISSUR.

¶100

4 SMT.AMBIKA , W/O LATE RM JOSHY, KOTTANELLUR IRINJALAKKUDA,THRISSUR DIST

¶101

5 SMT.SHIMA JOSHY, D/O LATE R M JOSHY, KOTTANELLUR IRIJALAKKUDA, THRISSUR DIST

¶102

6 SMT.BINSHA JOSHY, D/O LATE R M JOSHY, KOTTANELLUR

¶103

IRINJALAKKUDA,THRISSUR

¶104

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶105

¶106

**(LR'S OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 4 TO 6 VIDE ORDER DATED 24/02/2015 IN IA 837/2010 IN MACA 2654/2008)*

¶107

BY ADVS. SRI.LAL K.JOSEPH SRI.M.C.GOPI

¶108

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.10.2018, ALONG WITH MACA.2670/2008, MACA.2685/2008, MACA.2084/2008, MACA.2113/2008, MACA.2149/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶109

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶110

¶111

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶112

PRESENT

¶113

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶114

MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940

¶115

MACA.No. 2670 of 2008

¶116

AGAINST THE AWARD IN OPMV 1876/2001 of MACT, IRINJALAKUDA DATED 20-05-2008

¶117

APPELLANTS/RESPONDENTS 4 AND 5:

¶118

1 K.V.BHASKARAN , S/O.KURINJIKADAN VELAYUDHAN, KUTTICHIRA P.O., THRISSUR DIST,

¶119

2 SARASWATHY, W/O. KURINJIKADAN BHASKARAN, KUTTICHIRA, THRISSUR DIST.

¶120

BY ADVS. SRI.M.SHAJU PURUSHOTHAMAN

¶121

SRI.K.S.RAJESH

¶122

RESPONDENTS/RESPONDENTS:

¶123

1 SURESH KUMAR.M , S/O.ATTUPURAM MUTHU, EDATHARA, PALAKKAD

¶124

*2 R.M JOSHY (DIED) S/O RAMANKULATH MADHAVAN, KOTTANELLUR,IRINJALAKKUDA,THRISSUR DISTRICT,

¶125

3. THE MANAGER NATIONAL INSURANCE COMPANY LTD.,BRANCH OFFICE,THRISSUR

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4. AMBIKA JOSHY W/O LATE R.M. JOSHY, KOTTANELLUR, IRINJALAKKUDA,THRISSUR DISTRICT

¶127

5 SHIMA JOSHY D/O LATE R.M. JOSHY, KOTTANELLUR IRINJALAKKUDA,THRISSUR DISTRICT

¶128

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶129

¶130

*6 BINSHA JOSHY D/O LATE R.M.JOSHY,KOTTANELLUR, IRINJALAKKUDA,THRISSUR DISTRICT (ADDL RESPONDENTS R4 TO R6 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED R2 AS PER ORDER DATED 29/10/18 IN IA 1223/12 IN MACA 2670/08)

¶131

BY ADVS. SRI.LAL GEORGE SRI.M.C.GOPI

¶132

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.10.2018, ALONG WITH MACA.2685/2008, MACA.2084/2008, MACA.2113/2008, MACA.2149/2008, MACA.2654/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶133

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶134

¶135

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶136

PRESENT

¶137

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶138

MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940

¶139

MACA.No. 2685 of 2008

¶140

AGAINST THE AWARD IN OPMV 1877/2001 of MACT, IRINJALAKUDA DATED 20-05-2008

¶141

APPELLANTS/PETITIONER:

¶142

1 SRI.PUSHKARAN, S/O.KOOVELI VELAYUDHAN, PADIYOOR VILLAGE, MUKUNDAPURAM TALUK

¶143

2 SMT.LEELA, W/O.KOOVELI PUSHKARAN, DO, DO.

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BY ADVS.

¶145

SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH

¶146

RESPONDENTS/RESPONDENTS:

¶147

1 SURESHKUMAR M., S/O.ATTUPURAM MUTHU,

¶148

EDATHARA, PALAKKAD.

¶149

*2 R.M.JOSHY, S/O RAMANKULATH MADHAVAN, KOTTANELLUR, IRINJALAKUDA, THRISSUR DISTRICT. - DIED

¶150

3 THE MANAGER, NATIONAL INSURANCE CO.LTD BRANCH OFFICE, THRISSUR.

¶151

4 SMT.AMBIKA , W/O LATE RM JOSHY, KOTTANELLUR IRINJALAKKUDA,THRISSUR DIST

¶152

5 SMT.SHIMA JOSHY, D/O LATE R M JOSHY, KOTTANELLUR IRIJALAKKUDA, THRISSUR DIST

¶153

*6 SMT.BINSHA JOSHY, D/O LATE R M JOSHY, KOTTANELLUR IRINJALAKKUDA,THRISSUR (LR'S OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 4 TO 6 VIDE ORDER DATED 24/02/2015 IN IA 737/2010 IN MACA 2685/2008)

¶154

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶155

¶156

BY ADVS. SRI.LAL GEORGE SRI.M.C.GOPI

¶157

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.10.2018, ALONG WITH MACA.2670/2008, MACA.2084/2008, MACA.2113/2008, MACA.2149/2008, MACA.2654/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶158

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶159

¶160

JUDGMENT

¶161

These appeals are preferred against the award in OP(MV) Nos.1875/2001, 1876/2001 and 1877/2001 of the Motor Accidents Claims Tribunal, Irinjalakuda. In OP(MV) No.1875/2001 the Tribunal awarded Rs.1,75,000/-, in OP(MV) No.1876/2001 Rs.1,47,000/- and in OP(MV) No.1877/2001 Rs.1,71,000/- with interest and proportionate cost. M.A.C.A No.2654/2008 was preferred against the award in OP(MV) No.1875/2001 by the legal representatives of the deceased Bijoy, M.A.C.A No.2670/2008 was preferred against the award in OP(MV) No.1876/2001 by the legal representatives of the deceased Nisha and M.A.C.A No.2685/2008 was preferred against the award in OP(MV) No.1877/2001 by the legal representatives of the deceased Priyan. The owner of the vehicle KL-8/H 1116 preferred M.A.C.A No.2084/2008 against the award in OP(MV) No.1875/2001, M.A.C.A No.2113/2008 against the award in OP(MV) No.1876/2001 and M.A.C.A No.2149/2008 against the award in OP(MV) No.1877/2001.

¶162

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶163

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It would be relevant and useful to refer the

¶165

facts leading to the accident. Claimants case in the lower court was that on 13.08.2001, the deceased Priyan was driving a Maruti van KL -14/A 918 with his wife Nisha Priyan and his brother Bijoy from Coimbatore to Irinjalakuda through NH road. When they reached at the place of occurrence, another vehicle KL-8/H 1116 came from the opposite direction in a rash and negligent manner, hit against the Maruti van, as a result, the passengers in the Maruti van sustained serious injuries, while undergoing treatment they succumbed to the injuries. The accident was due to the rash and negligent driving of the lorry by its driver.

¶166

In the lower court, the driver was set ex-parte. The owner of the vehicle, R2 denied the rash and negligent act of the first respondent and contended that the deceased Priyan was rash and negligent for the accident. The second respondent also contended that the accident occurred, while the tanker lorry was taken to workshop for repair. The insurer admitted the insurance of the vehicle, but contended that the driver of the vehicle was not holding a valid driving licence to

¶167

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶168

¶169

drive a tanker lorry and the vehicle had no permit at the time of accident. All the cases were tried jointly. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A22. Respondents evidence consist of oral testimony of RW1 and documentary evidence of Ext.B1 to B6.

¶170

The learned counsel appearing for the appellants in M.A.C.A Nos.2654/08, 2670/08 and 2685/08 contended that just amount was not awarded to the legal representatives of the deceased. In M.A.C.A No.2654/08, the deceased was a bachelor and claimants are the legal representatives. The deceased was aged 27 years at time of accident and he was a Helper Gr.II in Dooradarsan Maintenance Centre and was getting Rs.5,000/- per month. The deceased Nisha in M.A.C.A No.2670/2008 and Priyan in M.A.C.A No.2685/2008 are wife and husband, just amount was not awarded to their legal representatives. Priyan was aged 31 years at the time of accident and he was conducting an automobile workshop, who was getting Rs.10,000/- per month. The deceased Nisha was aged 24 years and a B.A degree holder. She is a house wife, who was assisting her husband,

¶171

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶172

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just amount was not awarded to the legal representative of the deceased.

¶174

The learned counsel appearing for the appellant in M.A.C.A Nos.2084/08, 2113/08 and 2149/08 contended that the lorry was being taken to workshop for alteration and repair work, the accident occurred on the way to the workshop. The vehicle was holding valid All India permit which surrendered for obtaining state permit for that the vehicle was taken to work shop at Palakkad for alteration. There is no violation of permit condition and the insurer is liable to indemnify the owner. The vehicle was also holding a valid Fitness Certificate at the time of accident, it was reported by AMVI.

¶175

The learned counsel appearing for the insurer contended that the vehicle was not holding a valid permit and Fitness Certificate at the time of accident. In the circumstances, the learned Tribunal directed the insurer to pay the compensation amount and recover it from the owner. There is no illegality in the finding and that need not be disturbed. Even though the owner of the vehicle contended

¶176

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶177

¶178

that the permit and fitness certificate were surrendered before the competent authority, no documents were produced in the lower court to substantiate that contention and there is a violation of Section 66 of the Motor Vehicles Act,1988. The insurer is bound to recover the amount from the owner.

¶179

There was no dispute with regard to the accident in the lower court. Ext.A1 is the F.I.R in Crime No.300/2001 of Palakkad Traffic Police Station. Ext.A2 is the charge sheet against the driver of the lorry. Ext.A3 is the scene mahazar. Exts.A4, A11 and A7 are the post-mortem certificates. The post-mortem certificates show that the death was due to the injuries sustained in the accident.

¶180

In fatal accident case, the measure of damage is towards the pecuniary losses, which is to be suffered by the dependents as a result of the death. But the assessment of damages to the dependents is beset with difficulties because from the nature of things, it has to take into account many imponderables. The life expectancy of the deceased and the dependents are the major factors. Secondly the amount that the deceased would have earned during the remaining period

¶181

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶182

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of his life, the amount that he would have contributed to the dependents during that period is also relevant. The chances that the deceased may not have lived or the dependents may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better job and earned more income also have to be considered by the tribunal.

¶184

9. Apex court in National Insurance Company

¶185

V. Pranay Sethi [2017 (4) KLT 662 (SC)] held as follows:

¶186

61. In view of the aforesaid analysis, we proceed to record our conclusions:-

¶187

(i) The two-Judge Bench in Santhosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.

¶188

(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.

¶189

(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between

¶190

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶191

¶192

the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

¶193

(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

¶194

(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before.

¶195

(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

¶196

(vii) The age of the deceased should be the basis for applying the multiplier.

¶197

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.

¶198

10. In M.A.C.A No.2654/2008, the deceased Bijoy

¶199

was a Helper Gr.II in a Dooradarsan Maintenance Centre.

¶200

Claimants are the parents and his siblings. The driving licence shows he was aged 27 years at time of accident. There is no

¶201

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶202

¶203

dispute with regard to the occupation of the deceased. Ext.A8, salary certificate shows he was getting total Rs.4,741/-. In view of Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057), the income is taken as Rs.4,741/-. In view of Pranay Sethi (supra), 40% is awarded towards future prospects and the total monthly income is Rs.6,637/-. The deceased was aged 27 years and the multiplier is 17. Since the deceased is a bachelor, 50% is to be deducted. The total dependency compensation is Rs.6,637x12x17x1/2= Rs.6,76,974/-. The learned Tribunal awarded Rs.1,56,000/- and the balance amount is Rs.5,20,974/-. Along with that, additional Rs.11,000/- is awarded towards funeral expense and Rs.15,000/- towards loss of estate. The total enhanced compensation is Rs.5,46,974/- (Rupees Five Lakhs Forty Six Thousand Nine Hundred and Seventy Four only).

¶204

In M.A.C.A No.2670/2008, the deceased Nisha

¶205

was a house wife and she was aged 24 years at the time of accident. As per Ext.A13, she is a B.A degree holder. The learned Tribunal took Rs.2,000/- as the monthly income. In view of Pranay Sethi (supra), 40% is awarded towards future

¶206

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

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prospects and the total monthly income is Rs.2,800/-. The deceased was aged 24 years and the multiplier is 18. The total dependency compensation is Rs.2,800x12x18= Rs.6,04,800/-. There are four dependents and ¼ is to be deducted. The balance amount is Rs.4,53,600/-. The learned Tribunal awarded Rs.1,28,000/- and the balance amount is Rs.3,25,600/-. Along with that, additional Rs.11,000/- is awarded towards funeral expense and Rs.15,000/- towards loss of estate. The total enhanced compensation is Rs.3,51,600/- (Rupees Three Lakhs Fifty One Thousand Six Hundred only).

¶209

Appellants in M.A.C.A No.2685/2008 are the legal representatives of the deceased Priyan. The deceased was aged 31 years at the time of accident. He claimed Rs.10,000/- as his monthly income. Even though he claimed, no evidence has been adduced in the lower court to prove the income. In the absence of such income, Rs.3,000/- was taken by the Tribunal. Ext.A20 shows that he completed Automobile Engineering three years diploma course. Considering his educational qualification, his income is fixed as Rs.4,500/-. In

¶210

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶211

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view of Pranay Sethi (supra), 40% is awarded towards future prospects and the total monthly income is Rs.6,300/-. The deceased was aged 31 years and the multiplier is 16. The total dependency compensation is Rs.6,300x12x16= Rs.12,09,600/-. There are four dependents and ¼ is to be deducted. The balance amount is Rs.9,07,200/-. The learned Tribunal awarded Rs.1,56,000/- and the balance amount is Rs.7,51,200/-. Along with that, additional Rs.15,000/- is awarded towards funeral expense and Rs.15,000/- towards loss of estate. The total enhanced compensation is Rs.7,81,200/- (Rupees Seven Lakhs Eighty One Thousand Two Hundred only).

¶213

Section 66 of the Motor Vehicles Act, 1988

¶214

reads as follows :

¶215

“ 66. Necessity for permits . - (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used :

¶216

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

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Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage :

¶219

Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not :

¶220

Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.

¶221

(2) The holder of a goods carriage permit may use the vehicle, for the drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed :

¶222

[Proved that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi-trailor.]

¶223

(3) The provisions of sub-section (1) shall not apply-

¶224

(a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise ;

¶225

(b) to any transport vehicle owned by a local authority

¶226

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶227

¶228

or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes ;

¶229

(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes ;

¶230

(d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses ;

¶231

(e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety ;

¶232

(f) to any transport vehicle used for any other public purpose as may be prescribed by the Sate Government in this behalf ;

¶233

(g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf ;

¶234

(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms ;

¶235

(j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other

¶236

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

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State, without carrying any passenger or goods ;

¶239

(k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle ;

¶240

(m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances, is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination.

¶241

(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify ;

¶242

(o) to any transport vehicle which is subject to a hirepurchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination ; or

¶243

(p) to any transport vehicle while proceeding empty to any place for purpose of repair.

¶244

The appellant in M.A.C.A Nos.2084/2008,

¶245

2113/2008 and 2149/2008 is the owner of the lorry, he contended that the vehicle was holding valid national permit and it was surrendered to the State Transport Authority for

¶246

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

¶247

¶248

obtaining state permit after altering the chassis. In the additional written statement filed by the insurer admitted that the original permit was surrendered before the Motor Vehicles Department by the owner and it was cancelled on 26.07.2001 as per order C1/6-20905/2001 MVI Unit, Thrissur. The Police investigation report corroborates the surrender of the permit, but Palakkad Police charged a petty case against the owner under Section 66 r/w 192 of the Motor Vehicles Act, 1988 (the Act). According to Section 66 of the Act, no owner of a motor vehicle shall use the vehicle as a transport vehicle in any public place violating permit condition. Section 66 (3) (p) proviso shows that Section 66 (1) is not applicable to any transport vehicle while proceeding empty to any place for purpose of repair. Ext.B5 is the good carrier record, which shows that no load was carried in the vehicle.

¶249

Section 66 of the Motor Vehicles Act lays down that no motor vehicle shall be used as a transport vehicle without a permit issued by Transport Authorities to use the vehicle in a public place. The section also provides for exemption of certain types of vehicle from the operation of

¶250

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

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¶252

the provisions of this clause on certain condition and for usage for certain specific purpose. One of the conditions mentioned under Section 66(3)(p) is that the provisions of Sub Section (1) of Section 66 shall not apply to any transport vehicle while proceeding empty to any place for the purpose of repair. Appellant contended that as per Ext.B5 there was no goods carried in the vehicle on the date of accident. If that be the position, the vehicle was plied according to the exemption granted under Sec.66(3)(p). Where the appellant in this case had applied for a State Permit under the provisions of Motor Vehicles Act and the State Transport Authority received the National Permit and the owner surrendered the National Permit to the Road Transport Authorities, appellant cannot ply the vehicle without a valid permit. But the exception shows that after surrendering the permit the appellant can take the vehicle to workshop for altering the body for obtaining the State Permit, in such a situation there is no violation of the permit conditions. The insurer cannot contend that it is a violation of the policy conditions. Therefore, the insurer has to indemnify the owner and pay compensation to the victims. In

¶253

M.A.C.A Nos. 2084, 2113, 2149, 2654, 2670 & 2685 of 2008

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¶255

the circumstance, the direction to recover the amount from the owner of the vehicle KL-8H/1116 in O.P.(M.V.) Nos.1875 of 2001, 1876 of 2001 and 1877 of 2001 is hereby set aside and the insurer is directed to satisfy the modified award with 9% interest and proportionate cost within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default.

¶256

Hence the above appeals are disposed of as above.

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Sd/- P.D.RAJAN JUDGE

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bng/02.11.18

Sri.R.M.Joshy v. Sri.Pushkaran and Others

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Sri.R.M.Joshy v. Sri.Pushkaran and Others

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