Partly allowed

Radhakrishnan v. Nisar, S/O.Moideen

Kerala HC30 Nov 2022MACA/113/2015

Case brief

AI extract

What is this about?

The High Court of Kerala allowed appeals against a Motor Accident Claims Tribunal award. It increased compensation for loss of dependency and funeral expenses based on Supreme Court guidelines, reduced amounts for love, affection, and pain and suffering, and upheld the insurer's right to recover benefits due to the unlicensed rider.

What did the court decide?

Awarded Rs. 2,67,000 additional compensation for dependency, Rs. 16,500 funeral expenses, Rs. 1,03,000 for love/consortium. Rejected excess claims for pain and suffering. Insurer permitted to recover

Radhakrishnan Vs Nisar, S/O.Moideen — Motor Accident Claims | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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WEDNESDAY, THE 30TH DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944

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MACA NO. 1705 OF 2014

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AGAINST THE AWARD DATED 28.02.2014 IN O.P(M.V) NO.1/2011 OF MOTOR

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ACCIDENT CLAIMS TRIBUNAL, VATAKARA

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APPELLANT/3RD RESPONDENT:

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NATIONAL INSURANCE COMPANY LIMITED, CALICUT

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NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA
BUILDING, M.G.ROAD, KOCHI – 35.

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BY ADVS.SRI.MATHEWS JACOB (SR.)
 SRI.P.JACOB MATHEW

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RESPONDENTS/PETITIONERS AND RESPONDENTS 1 AND 4:

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1 RADHAKRISHNAN,

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S/O.SANKARAN NAIR, NADARIKUNNATH THAZHA HOUSE, KOZHUKKALLUR
P.O., KOYILANDY TALUK, PIN - 673 524

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2 PUSHPA,

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W/O.RADHAKRISHNAN, NADARIKUNNATH THAZHA HOUSE, KOZHUKKALLUR P.O., KOYILANDY TALUK, PIN - 673 524

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3 VISHNU (MINOR), S/O.RADHAKRISHNAN, REPRESENTED BY THE 1ST RESPONDENT RADHAKRISHNAN, NADARIKUNNATH THAZHA HOUSE, KOZHUKKALLUR P.O., KOYILANDY TALUK, PIN - 673 524

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4 NISAR,

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S/O.MOIDEEN, KORAMMANKANDY HOUSE, KOZHUKKALLUR P.O., KOYILANDY TALUK, PIN - 673 524

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5 SAMEER,

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S/O.PARAYAYI, KAKKARANI HOUSE, KOZHUKKALLUR P.O., KOYILANDY TALUK, PIN - 673 524.

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BY ADV R1 TO R3 BY SRI.T.G.RAJENDRAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

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30.11.2022, ALONG WITH MACA.113/2015, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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M.A.C.A.Nos.1705/2014 & 113/2015

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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WEDNESDAY, THE 30^TH DAY OF NOVEMBER 2022/9TH AGRAHAYANA, 1944

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MACA NO. 113 OF 2015

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AGAINST THE AWARD DATED 28.02.2014 IN O.P(M.V) NO.1/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VATAKARA

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APPELLANTS/PETITIONERS:

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1 RADHAKRISHNAN, AGED 47 YEARS, S/O.SANKARAN NAIR, NADARIKUNNATH THAZHE HOUSE, KOZHUKALLUR AMSOM DESOM, KOZHUKKALLUR P.O., KOYILANDY.

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2 PUSHPA, W/O.RADHAKRISHNAN, NADARIKUNNATH THAZHE HOUSE, KOZHUKALLUR AMSOM DESOM, KOZHUKKALLUR P.O., KOYILANDY TALUK.

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3 VISHNU, AGED 12 YEARS (MINOR) S/O.RAVEENDRAN, REP; BY FATHER GUARDIAN RADHAKRISHNAN, RESIDING -DO-.

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BY ADV SRI.T.G.RAJENDRAN

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RESPONDENTS / RESPONDENTS:

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1NISAR, S/O.MOIDEEN, KORAMMANKANDY HOUSE,
KOZHUKKALLUR P.O., MEPPAYOOR VIA PIN-673524.

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*2 MUHAMMED P., S/O.KADER P., KALAYAMKULATH MEETHAL HOUSE, INRINGATH, KOYILANDY TALUK-673521. (DELETED)

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3 M/S.NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE I, CALICUT-673 001.

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4 SAMEER, S/O.PARAYAYI, KAKKARANI HOUSE, KOZHUKKALLUR AMSOM DESOM, KOYILANDY TALUK-673 521. *[RESPONDENT NO 2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 26/2/2021 IN I.A. NO.1/2020 IN THE MACA 113/2015.] R3 BY ADVS. SRI.P.JACOB MATHEW

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SRI.MATHEWS JACOB SR.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 30.11.2022, ALONG WITH MACA.1705/2014, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.Nos.1705/2014 & 113/2015

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JUDGMENT

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Dated this the 30^th day of November, 2022

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Both these appeals are originated from an award passed by Motor Accidents Claims Tribunal, Vatakara (for short ‘the Tribunal’) on 28.02.2014 in O.P.(M.V) No.1/2011. For the sake of convenience, the parties to these appeals will hereinafter be referred to as the petitioners and respondents 1 to 4 in accordance with their status in the Original Petition.

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The claim petition is related to the death of a minor boy aged 14 years in a motor accident occurred at about 08.00 a.m. on 19.11.2010. He was riding an ordinary bicycle through a public road at Karayadthazhe, Kozhakkallur and was hit by a Motorcycle bearing Registration No.KL 56 C 2854. Due to the fatal injuries sustained, he died immediately. The owner, the rider and the insurer of the offending Motorcycle were arrayed as respondents 1 to 3 in the Original Petition filed. A sum of

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M.A.C.A.Nos.1705/2014 & 113/2015

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Rs.7,50,000/- was claimed as compensation. Respondents

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1 to 3 are alleged as jointly and severally liable to compensate the petitioners, who are legal representatives of the deceased minor boy.

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Originally the registered owner of the offending vehicle was not made a party in the Original Petition. He was brought on record following a specific contention on non-joinder of a necessary party raised in the written statement filed. The Tribunal found that despite bringing the 4^th respondent in the array of parties, steps are not taken by the petitioners to serve notice on him.

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Before the Tribunal, the 3^rd respondent, the insurer has admitted the insurance coverage of the offending vehicle with them at the relevant time of the motor accident. A specific contention was also taken to the effect that the rider of the offending Motorcycle was not holding a valid driving licence to ride it at the relevant time. Accordingly, it was contended that the 3^rd respondent is not bound to indemnify the insured but to get the compensation arrived at deposited in favour of the petitioners and to get

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M.A.C.A.Nos.1705/2014 & 113/2015

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5

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recovery from 1^st respondent and additional 4^th respondent jointly and severally.

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Before the Tribunal, both sides adduced evidence.

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On the side of the petitioners Exts.A1 to A12 and on the side of the respondents Ext.B1 were marked. Based on the evidence adduced as above, the Tribunal found the rider of the Motorcycle bearing Registration No.KL 56 C 2854 rash and negligent in riding it and thereby causing the motor accident. The Tribunal also found that the petitioners are entitled to get compensation from the respondents for the death of the minor boy resulted due to the injuries sustained in the motor accident in question. Rs.6,08,500/- was arrived at as the total compensation payable and was directed to deposit the said amount with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation alongwith proportionate cost. Challenging the award, appeals aforestated have been preferred by the petitioners as well as the 3^rd respondent.

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The contention raised by the 3^rd respondent in M.A.C.A No.1705/2014 was that the quantum arrived at by

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M.A.C.A.Nos.1705/2014 & 113/2015

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the Tribunal under various heads of compensation are on the higher side. According to him the Constitution Bench of the Apex Court in National Insurance Company Limited v. Pranay Sethi & Ors. [2017 (4) KLT 662 (SC)] had fixed Rs.16,500/- each as the compensation payable to the petitioners towards funeral expenses and loss of estate. According to him, Rs.44,000/- was also fixed in Pranay Sethi supra as the compensation payable per head to the petitioners under the head loss of consortium. According to the learned counsel Rs.3,00,000/- was arrived at by the Tribunal as compensation towards loss of dependency, but, there was no discussion in the impugned award about the manner in which it was arrived at. According to him, the multiplier of 20 was incorrectly adopted by the Tribunal. The victim was 14 years at the relevant time of his death and therefore, 15 is the correct multiplier.

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In M.A.C.A No.113/2015, the appellants are petitioners before the Tribunal. According to the learned counsel, the Tribunal is unjustified in fixing Rs.30,000/- as the annual income of the deceased. According to him, the

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M.A.C.A.Nos.1705/2014 & 113/2015

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Tribunal failed to apply it’s mind to the reality that the minor boy if alive could have earned a higher sum. According to him, Rs.30,000/- will be a reasonable sum to be considered as the annual income. According to him, the multiplier of 20 adopted by the Tribunal is correct in view of the decision

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Reshma Kumari and Others v. Madan Mohan and Another [(2009) 13 SCC 422]. It was urged by the learned counsel that the compensation awarded by the Tribunal under various heads being just and reasonable the impugned award is only to be maintained.

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The Tribunal did not consider the future prospects of the minor child, though various documents of merits of the child have been marked in evidence as Exts.A6 to A9. In Exts.A7 and A8, issued from Kerala Hindi Prachara Sabha where the child was certified as successfully completed the Hindi course held by them. It appears that the minor child was a meritorious student and had he not been died in the motor accident, he would have placed in a suitable employment with a reasonable pay.

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M.A.C.A.Nos.1705/2014 & 113/2015

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9. In National Insurance Company Ltd. v. Assainar

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[2019(4) KLT 39], a Single Bench of this Court has prepared a table wherein Rs.54,000/- was shown as the annual income in the case of a minor during the financial year 2009-2010. This Court is inclined to fix Rs.54,000/- as the annual income of the deceased since the motor accident in the case on hand was occurred in the year 2010. Considering the meritorious background of the deceased this Court finds it appropriate to take 40% towards loss of future prospects. Thus, Rs.75,600/- (Rs.54,000/- + 40% of Rs.54,000/-) is arrived at. Deceased being a bachelor half of the amount is deducted in consideration of personal expenditure and thus Rs.37,800/- is arrived at. 15 being the correct multiplier is also adopted. When compensation for dependency is calculated on the basis of the modified annual income, the multiplier as 15, Rs.5,67,000/- (Rs.75,600/x15)x1/2) is arrived at as compensation for loss of dependency. Rs.3,00,000/- stands awarded by the Tribunal

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when deducted from the sum arrived at as above, the petitioners will get Rs.2,67,000/- as additional compensation.

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M.A.C.A.Nos.1705/2014 & 113/2015

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Rs.25,000/- stands awarded by the Tribunal towards funeral expenses. The entitlement of the petitioners being only for a sum of Rs.16,500/-, Rs.8,500/- stands awarded in excess is liable to be deducted from the total sum arrived at as additional compensation. As compensation

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towards loss of estate though a claim for Rs.5,000/- was raised, nothing was found granted. In view of Pranay Sethi supra, the petitioners are entitled to get Rs.16,500/- and therefore this Court awards the same as compensation.

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The deceased was survived by his parents and a minor sister. The minor sister lost her sole companion in the motor accident. Therefore this Court finds justification in awarding Rs.20,000/- as compensation for loss of love and affection in her favour. Rs.44,000/- is also awarded as compensation towards loss of consortium in favour of each of the parents. Thus, Rs.1,08,000/- (Rs.44,000/- + Rs.44,000/- + Rs.20,000/-) is arrived at. Petitioners are not entitled to get Rs.2,50,000/- stands awarded by the Tribunal as compensation towards loss of love and affection and loss of support and assistance. Petitioners are not

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M.A.C.A.Nos.1705/2014 & 113/2015

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entitled to get Rs.30,000/- stands awarded as compensation towards pain and suffering. Thus in the re-assessment of compensation as above, petitioners will get Rs.1,03,000/(Rupees One lakh three thousand only) [(Rs.2,67,000/- + Rs.16,500/- + Rs.1,08,000/-) -(Rs.2,50,000/- + Rs.8,500/+ Rs.30,000/-)] as additional compensation. Interest at the rate of 7.5% is also fixed for the sum now arrived at as additional compensation from the date of the Original Petition till deposit. The 3^rd respondent shall pay the additional compensation now arrived at and the sum originally stands arrived at with interest respectively fixed in accordance with the direction issued by this Court in Circular No.03/2019 within a period of two months from the date of receipt of a certified copy of this judgment.

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Liability was fixed by the Tribunal on the 3^rd respondent to indemnify the insured. It stands established before the Tribunal that the insured had permitted a person without licence to ride the Motorcycle and thus, breached the conditions of policy. Accordingly, the 3^rd respondent insurer is permitted to recover the compensation from the

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M.A.C.A.Nos.1705/2014 & 113/2015

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insured and the driver after depositing it in favour of the

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petitioners.

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M.A.C.A Nos.1705/2014 and 113/2015 are allowed in

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part accordingly.

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MARY JOSEPH JUDGE

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NAB

Radhakrishnan v. Nisar, S/O.Moideen

Case brief

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Radhakrishnan v. Nisar, S/O.Moideen

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