Kerala High Court
P.V.Nidhish And Another vs Haneefa And Others on 3 February, 2023
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
MACA NO. 2009 OF 2009
AGAINST THE AWARD IN OPMV 1536/2003 DATED 23.04.2009 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI
APPELLANT/RESPONDENTS 2 & 4:
1 P.V.NIDHISH
S/O P V CHANDRAN, KTC AUTOMOBILES, YMCA ROAD,
KOZHIKODE DISTRICT.
2 KTC AUTOOBILES
REPRESENTED BY ITS MANAGING DIRECTOR,, YMCA
ROAD, KOZHIKODE.
BY ADV SRI.DEVAPRASANTH.P.J.
RESPONDENTS/PETITIONERS 1 & 2/RESPONDENTS 1 & 3:
1 HANEEFA, AGED 40 YEARS
S/O.MAMMUTTY NELLIKKUNNAN, ARAVANKARA,,
POOKKOTTUR P.O., MALAPPURAM DISTRICT.
2 FATHIMA.K.C. W/O.HANEEFA
ARAVANKARA, POOKKOTTUR P.O., MALAPPURAM
DISTRICT.
3 NISANTHKUMAR.P.S.
S/O.NARAYANAN NAIR.P.S., ANTHI NIVAS,,
PERUVAYAL P.O., KOZHIKODE DISTRICT.
4 THE NEW INDIA ASSURANCE COMPANY
LIMITED, SHAFEER COMPLEX, OPP.YMCA,, KANNUR
ROAD, CALICUT.
BY ADVS.
SRI.BABU S. NAIR
ROY THOMAS (PATHANAMTHITTA)
SMT.A.SREEKALA
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP
FOR ADMISSION ON 03.02.2023, ALONG WITH CO.3/2010, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 2009 OF 2009
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
CO NO. 3 OF 2010
AGAINST THE AWARD IN OP(MV) NO.1536/2003 DATED
23.04.2009 BY THE MOTOR ACCIDENTS CLAIMS
TRIBUNAL,MANJERI
APPELLANT/PETITIONERS:
1 HANEEFA, S/O MAMMUTTY NELLIKKUNNAN
ARAVANKARA, POOKKOTTUR.P.O., MALAPPURAM
DISTRICT.
2 FATHIMA.K.C. W/O. HANEEFA
ARAVANKARA,POOKKOTTUR.P.O., MALAPPURAM
DISTRICT.
BY ADV SRI.BABU S. NAIR
RESPONDENTS/RESPONDENTS:
1 NISANTHKUMAR P.S.
S/O. NARAYANN NAIR.P.S., ANTHI NIVAS,,
PERUVAYAL.P.O., KOZHIKODE DISTRICT.
2 P.V.NIDHISH S/O. P.V.CHANDRAN
KTC AUTOMOBILES, YMCA ROAD, KOZHIKODE DISTRICT.
3 THE NEW INDIA ASSURANCE CO. LTD.
SHAFEER COMPLEX, OPP. YMCA, KANNUR ROAD,
CALICUT.
4 KTC AUTOMOBILES REPRESENTED BY ITS
MANAGING DIRECTOR, YMCA ROAD, KOZHIKODE
DISTRICT.
BY ADVS.
SRI.DEVAPRASANTH.P.J.
SMT.A.SREEKALA
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP
FOR ADMISSION ON 03.02.2023, ALONG WITH MACA.2009/2009,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 2009 OF 2009
3
JUDGMENT
The afore appeal is filed by the owners of the vehicle involved in the accident, which killed an young boy of 12 years by name Master Sajid; while, the Cross Objection is filed by his parents.
2. Since the factual circumstances involved in this case are without dispute, I do not require to indite it in detail, except to say that late Master Sajid was knocked down by a Car owned by the appellants and covered by a Trade License issued by the jurisdictional Regional Transport Authority. The child succumbed to the injuries and his parents, namely the Cross Objectors, filed O.P(MV) No. 1536/2003 before the Motor Accidents Claims Tribunal, Manjeri ('Tribunal' for short) seeking an amount of Rs.2,00,000/-, but was awarded only Rs.1,65,500/-. While doing so, the Tribunal exonerated the Insurance Company holding that the offending vehicle was not enjoying the protection of a valid Insurance Policy.
3. The appellants in the appeal impugn that portion of the Award of the Tribunal, exonerating the Insurance Company; while, the Cross Objectors seek that the amounts MACA NO. 2009 OF 2009 4 granted be enhanced.
4. I have heard Smt.Smini Jose, appearing for the appellants; Smt.Jinu Antony, appearing for the Cross Objectors; and Smt. Sreekala A. - learned Standing Counsel appearing for the Insurance Company.
5. Smt.Smini Jose, appearing for the appellants, argued that Exts.A4 and A6 - Trade Certificates would show that only the vehicles under the trade name "Hyundai Santro"
are covered by the former; while, the offending vehicle, which is a "Hyundai Accent" is covered by the latter. She argued that, in such perspective, the offending vehicle was covered by a valid Insurance Policy, since Ext.B1 luculently show that it takes in Trade Plate No.KL-11 TC 3/98 D, which is the one covered by Ext.A4. She contended that, however, the learned Tribunal went by the documents maintained by the Police, including Ext.A1 - FIR and Ext.A5 Charge Sheet, wherein, it has been incorrectly recorded that the offending vehicle was covered by Ext.A6 - Trade Plate, which is not covered by Ext.B1 policy. She thus prayed that the Award of the Tribunal, to the extent to which it exonerates the Insurance Company, be set aside.
MACA NO. 2009 OF 2009 5
6. In response, Smt.Sreekala A. - learned Standing Counsel for the Insurance Company, submitted that the appellants did not have any contra case against Exts.A1 - FIR and A5 - Charge Sheet and therefore, that they cannot now impel the afore contentions before this Court. She asserted that the Tribunal was completely without error in having adopted the entries in these two documents, to hold that the vehicle involved was covered by Ext.A6 - Trade Certificate, which is not one insured under Ext.B1 Policy. She thus prayed that this appeal be dismissed.
7. Coming to the Cross Objections, Smt.Jinu Antony, learned counsel for the Cross Objectors, submitted that the Tribunal erred in granting exiguous compensation under the heads 'Funeral Expenses', 'Loss to Estate' and 'Loss of Dependency'; and that it was alleged on its part to have denied compensation under the head 'Loss of Consortium' to the parents. She thus prayed that the Award, to such extent, be modified and her client be granted the eligible compensation.
8. Smt.Smini Jose and Smt. Sreekala A, appearing for the respondents in the Cross Objections, responded asserting that the compensation awarded by the Tribunal is just and MACA NO. 2009 OF 2009 6 commensurate; and thus prayed that it be dismissed.
9. The afore rival submissions of the parties being so recorded, I will first proceed to decide the merits of the appeal, and then that of the Cross Objections.
10. As seen above, the appellants claim that the offending vehicle was covered by Ext.A4 - Trade Certificate and hence within the ambit of Ext.B1 - Insurance Policy. However, the Tribunal, relying upon the entries in Ext.A1 - FIR and Ext.A6 - Charge Sheet, as also Ext.A3 - copy of Kychit under which the vehicle was released from the Police Station, has entered its opinion that the offending vehicle was covered by Ext.A6 - Trade certificate, which does not find mention in Ext.B1 - Insurance Policy.
11. As far as the Trade Certificate of the offending vehicle is concerned, this is a pure matter of fact, because it will solely depend upon the entries in the Trade Certificates issued by the jurisdictional Regional Transport Officer. Prima facie, going by Ext.A4 - Trade Certificate, it covers only a particular class of vehicle, under the brand name "Hyundai Santro"; while Ext.A6 - Trade Certificate appears to cover all 'Light Motor Vehicles'. If this be so and the offending vehicle is not 'Hyundai Santro', it is rather doubtful as to how Ext.A4 MACA NO. 2009 OF 2009 7 Trade Certificate would apply to it, as has been found by the Tribunal. However, I do not propose to speak on this in detail because, am of the view that this matter will require to be reconsidered by the Tribunal but, subject to certain conditions, as I will presently propose.
12. Coming to the Cross Objections, I find force in the submission of Smt.Jinu Antony, that the compensation awarded by the Tribunal under various heads are exiguous. In National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 6621], the Hon'ble Supreme Court has authorised the grant of Rs.15,000/- each under the heads 'Funeral Expenses' and 'Loss of Estate' and I am certain that the impugned Award deserves to be modified accordingly. As far as 'Loss of Dependency' is concerned, the Tribunal has adopted Rs.15,000/- to be the annual income of the deceased; but this Court, as also the Hon'ble Supreme Court, in various judgments including Kurvan Ansari Alias Kurvan Ali v. Shyam Kishore Murmu [(2022) SCC 317] has adopted the notional income of Rs.25,000/- per annum for a child, who was involved in an accident in the year 2004. I am certain that same stand can be adopted safely in this case also.
MACA NO. 2009 OF 2009 8
13. Further, going by Pranay Sethi (Supra) again, the parents are certainly entitled to compensation, under the head 'Loss of Consortium'; of Rs.40,000/- each.
14. In such view, the total compensation eligible to the Cross Objectors would stand revised to Rs.3,08,500/-. The Cross Objectors would be eligible to recover this amount from the respondents, along with interest at the rate of 7% per annum, as fixed by the Tribunal, from the date of claim, till its realization.
15. The compensation being so enhanced, I am certain that a remand of the matter to the Tribunal for the question as to whether the Insurance Company is responsible to indemnify the appellants in MACA No. 2009/2009 can be allowed, only if they deposit the entire amount, as ordered above, within a time frame. I record that this has not been opposed by their learned counsel; but who prayed that, in the event the Tribunal is to find that the Insurance Company to be liable, then, they may be directed to pay this amount to them without any delay.
Resultantly;
(a) MACA No. 2009/2009 is allowed in part and the Original Petition is remanded to the Tribunal for MACA NO. 2009 OF 2009 9 reconsideration of the question whether the Insurance Company is liable to indemnify the appellants therein for the compensation ordered by this Court in favour of the claimants; however on condition that they deposit the said compensation, in terms of (b) below, within a period of one month from the date of reciept of a copy of this judgment.
(b) Cross Objection No.3/2010 is allowed, enhancing the compensation to Rs.3,08,500/-, from Rs.1,65,500/- as ordered by the Tribunal, along with interest at the rate of 7% per annum from the date of claim, until its realization.
(c) On the appellants in MACA No.2009/2009 depositing the amount as ordered in (a) afore, the claimants will be at liberty to receive it from the Tribunal, on an appropriate application.
(d) Alternatively, if the appellants in MACA No.2009/2009 do not deposit the amount, as per (a) above, then the Award of the Tribunal, as modified by this Court, would stand upheld; and the claimants would be at full liberty to recover it from the said appellants, in terms of law.
(e) Needless to say, if the appellants in MACA No. 2009/2009 are to deposit the amount as ordered in (a) above, and should the Tribunal eventually finds that the MACA NO. 2009 OF 2009 10 Insurance Company is liable to indemnify them, they will be at full liberty to recover the same from the said Company as per law.
Sd/- DEVAN RAMACHANDRAN, JUDGE lsn MACA NO. 2009 OF 2009 11 APPENDIX PETITIONERS EXHIBITS:
ANNEXURE I. COPY OF THE PARTICULARS OF TRADE CERTIFICATE NO.KL 11 TC 03/1998 ISSUED BY RTO KOZHIKODE DATED 31.03.2009 ANNEXURE II COPY OF THE AFFIDAVIT FILED BY THE DIVISIONAL MANAGER OF R4 DATED 18.04.2009.
RESPONDENTS EXHIBITS: NIL TRUE COPY P.A TO JUDGE LSN