Kerala High Court
New India Assurance Co. Ltd. vs N.M. Annakutty And Ors. on 13 March, 1997
Equivalent citations: 1997ACJ1121
JUDGMENT V.V. Kamat, J.
1. The insurance company, (respondent No. 3) has preferred M.F.A. No. 211 of 1989 with regard to the statutory limit of Rs. 50,000/- and the claimants who are widow and two sons respectively of the victim one K.D. George have preferred M.F.A. No. 424 of 1989 as regards the quantum, both with regard to the impugned award dated 4.7.1987 in O.P. (MV) No. 568 of 1985 of Motor Accidents Claims Tribunal, Kottayam.
2. The facts would not present any difficulty as they speak for themselves pointing towards negligence.
3. On 28.11.1983 this K.D. George, a teacher in Physical Education was on his scooter on Palai-Thodupuzha road and at a place known as Kollappally in the evening at 5 p.m. was dashed by a bus KLI 4074. This bus was driven by one James, respondent No. 1 and was owned by one Baby John, respondent No. 2 and was insured with the New India Assurance Co. Ltd. In the process, this George aged 45 years breathed his last on 30.11.1983 at about 1.30 a.m. in the Medical College Hospital, Kottayam where he was admitted two days earlier on 28.11.1983 immediately after the dash.
4. Although it is not under contest before us, the fact that George on the scooter was dashed by the bus coming from the opposite side is beyond dispute. The necessary negligence floats on the surface of the record.
5. Although, the Tribunal treated the policy of insurance as comprehensive policy as would appear from the discussion on issue No. 6 at para 17 of the award, bare perusal of the copy of the insurance policy, Exh. Bl, would show that although the policy is comprehensive as regards 'basic own damage' and excess of liability towards the passengers with regard to the upper limit, capacity being 42 passengers, in addition driver and conductor. It is to be noted that with regard to third party liability, the policy is clearly the one which is normally known as 'Act only policy'. This would be abundantly clear if 'limitations as to use' are seen in the context of the third party liability. They are as follow:
Use only under a stage/contract carriage permit within the meaning of the Motor Vehicles Act, 1939. This policy does not cover:
(1) Use for organised racing, pace-making, reliability trial or speed testing.
(2) Use whilst drawing a trailer except the towing (other than for reward) of anyone disabled mechanically propelled vehicle.
It would also be seen and it is important that the premium for third party damage is the normal premium of Rs. 240/-. Additionally, even in the rubber stamp, it is seen that the liability is such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939 with reference to the limits of the liability, specifying the figure Rs. 50,000/- in that context. In view of the above position, the Tribunal would have to be found to be in error in the proceedings that in the context of third party liability. The policy is clearly an 'Act only policy' and the limit would therefore be Rs. 50,000/- in the context. Needless to state, therefore, that M.F.A. No. 211 of 1989 of the appellant insurance company would succeed resulting in the modification in the award to the extent of the said limit of Rs. 50,000/-.
6. On the question of quantum (subject matter of M.F.A. No. 424 of 1989) the learned Counsel for the claimants took us through the award in regard thereto. It would appear that the material on record would show that as a teacher in Physical Education the victim was earning a salary of Rs. 1,041/-. The material, however, placed on record shows that there was 3 to 5 acres of agricultural property and in this way the aggregate monthly income is estimated to be Rs. 1,500/- by the learned Tribunal.
7. In this connection, the main thrust of the learned Counsel is with regard to the claim of Rs. 1,00,000/- on the ground of loss of dependency, in regard to which the Tribunal has awarded Rs. 46,200/-. In order to appreciate the grievances of the learned Counsel, which would be necessary to appreciate as to how the Tribunal has considered the question. The Tribunal in the context has observed that the widow (petitioner No. 1) has accepted the position that the monthly income of Rs. 1,500/- is inclusive of the income from the immovable property and that of the salary of the deceased. The Tribunal has also taken into consideration that after the sad demise of the victim, the son (petitioner No. 2) who was 18 years of age at the time of the incident, the other being 17 years, was looking after the property and thus the income to that extent could not be understood to be a loss to that extent. The Tribunal has also taken into consideration that even when the deceased victim was cultivating the immovable properties, it was only under his supervision.
8. In the light of the above situation, the Tribunal has proceeded to determine the amount which could be understood to be the contribution of the victim. Although the widow has deposed that the amount of contribution was Rs. 1,000/- together with the fact that the income from the immovable properties is in continuance in spite of his death, contribution in essence would be Rs. 550/- per month. It is in this process, the Tribunal determined the annual loss of Rs. 6,600/-.
9. Thereafter, the Tribunal has proceeded further on the basis of the age of the victim to be 45 years and the normal year of retirement on superannuation being 55th year, to be the real period of loss, being the period often years. Giving consideration to the lump sum receipt of the amount, the Tribunal has adopted seven as the multiplier. In the process of discussion, the Tribunal has also considered the entitlement of the widow of the family pension or also the pension on superannuation, in the event of incident not having taken place. Taking into consideration these aspects, having chosen the multiplier of 7 as the safest one, the Tribunal has determined just compensation of Rs. 46,200/-.
10. The learned Counsel has submitted that the error is in the application of the multiplier of 7 when there is a passage of ten years time between the dates of the incident and superannuation. The learned Counsel also submitted that the Tribunal ought to have taken into consideration the post retirement life of the victim, George, in the process of determination in terms of loss of dependency.
11. In our judgment, having given anxious thought to many aspects, the factual matrix reveals that the property was being looked after by the son who was almost on the verge of the majority on the date of the accident. The income from the immovable property could not be said to be the loss although the Tribunal was required to assess the income on the basis of estimation only. The material on record shows that the landed property measured 3 to 5 acres. In the context of the use of the land, it is seen from the material on record that the cultivation was of rubber trees planted therein which are usually required to be looked after by way of supervision. The court has to determine the just compensation and such unfortunate incidents are not to be looked at as occasions for addition to the estate already in existence.
12. Reading the impugned award it was also seen that the Tribunal has accepted certain heads finding them to be reasonable. We got an overall impression that the Tribunal could not be found fault with in the process of determining just compensation on the material on record. The Tribunal has also awarded correct rate of interest of 12 per cent from the date of the petition (19.10.1985). The Tribunal has also apportioned the specific shares by passing orders to that effect.
13. For all the above reasons, the appeal by the insurance company (M.F.A. No. 211 of 1989) succeeds to the extent of limit of Rs. 50,000/- requiring the award to be modified to that extent relying on the liability of the appellant insurance company. However, the appeal of the claimants (M.F.A. No. 424 of 1989) would stand dismissed.