Special Grade Secretary vs Special Grade Secretary on 26 October, 2017

[Cites 10, Cited by 0]

Kerala High Court

Special Grade Secretary vs Special Grade Secretary on 26 October, 2017

The above appeals and the cross objection arose from two common awards passed by the Motor Accidents Claims Tribunal, Kottayam and the Motor Accidents Claims Tribunal, Thodupuzha. Since the accident is one and the same in all these cases, the above appeals as well as the cross objection are considered together and disposed of through this common judgment.

2. M.A.C.A.No.3055/2008 and Cross Objection No.103/2017 in that appeal and M.A.C.A.No.2965/2009 arose from the award of the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)No.963/2002. M.A.C.A.No.3061/2008 arose out of MACA No.2346/2008 & connected cases 2 the award in O.P.(MV)No.77/2003 of the said Tribunal. The Tribunal had passed a common award in both the above said cases. In M.A.C.A.No.3055/2008 and in M.A.C.A.No.3061/2008, the insurer of the vehicle involved in the accident is the appellant. M.A.C.A.No.2965/2009 is filed by the 4th petitioner/4th claimant in O.P.(MV)No.963/2002. The cross objection (C.O.No.103/2017) in M.A.C.A.No.3055/2008 is filed by the petitioners 1 to 3/claimants 1 to 3 in the said case.

3. M.A.C.A.No.2346/2008 is filed against the award in O.P.(MV)No.591/2000 of the Motor Accidents Claims Tribunal, Thodupuzha. M.A.C.A.No.2397/2008 is filed against the award in O.P.(MV)No.648/2000 of the same Tribunal. It is a common award passed by the said Tribunal in both these cases. The appellant in both those appeals is the 'Kumili Grama Panchayath', who is the registered owner of the vehicle involved in the accident.

4. The accident in question occurred on 9.8.2000 when a jeep bearing Reg.No.KL 6-1260 owned by the Grama Panchayath MACA No.2346/2008 & connected cases 3 fell into a ravine on the side of a public road, allegedly due to rash and negligent driving on the part of its driver, who also died in the accident. There is no dispute in these appeals against the finding of the Tribunal that the accident occurred due to the negligence on the part of the driver of the jeep. In the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)No.591/2000 and 648/2000, the insurer of the vehicle was exonerated from the liability, based on a finding that the insured had obtained the policy by suppressing the material fact that the vehicle in question was registered as a goods vehicle. The Tribunal found that, as per Ext.B1 policy, the vehicle was insured as a passenger vehicle, but at the same time it was used as a goods vehicle. It was found that the insured had suppressed the factum of registration of the vehicle for the use of carrying goods. Therefore it was held that the insurer is not liable to indemnify the owner of the vehicle. The above said finding in the common award of the Tribunal at Thodupuzha in O.P.(MV)Nos.591/2000 and 648/2000 is under MACA No.2346/2008 & connected cases 4 challenge at the instance of the Grama Panchayath in M.A.C.A.Nos.2346/2008 and 2397/2008. There is no dispute by any of the parties in those appeals with respect to the quantum of compensation awarded.

5. In the common award passed by the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)Nos.963/2002 and 77/2003, the insurer was held liable to pay the compensation. In the said cases the insurer had taken a contention before the Tribunal that the owner of the vehicle had altered the vehicle into an articulated vehicle attached with a trailer, with effect from 16.07.1993, without disclosing the said fact to the insurer. Therefore there occurred a wilful suppression of the material fact which rendered the policy as void and therefore the company is not liable, was the contention. On a perusal of Ext.B1, copy of the Registration Certificate of the motor vehicle, it was found that subsequently the registration was altered by detaching the trailer and the vehicle was permitted to be used as light motor vehicle MACA No.2346/2008 & connected cases 5 ( car). It is found that, when the endorsement of articulating the trailer was noted, the vehicle in question was exempted from payment of tax, under Section 22 of the Motor Vehicles Act, since the vehicle was wholly used for removal of rubbish from the panchayath area. The Tribunal found that, Ext.B2 particulars of the registration would show that the trailer has been attached with effect from 16.07.1993. Ext.B3 is the copy of the fitness certificate, which was valid upto 19.07.1994. But the Tribunal found that, various records available like Exts.B3, A1, B5 etc. do not show that, at the time of the accident the trailer was involved. Further the Tribunal found that, it cannot be taken that there was any misrepresentation or concealment of any material fact so as to avoid the policy, because the trailer was attached only during occasions for the purpose of collecting rubbish from the panchayath area. Finding that the attached trailer is a visible component which cannot be suppressed or concealed, it was found that there was no fraudulent misrepresentation or concealment with MACA No.2346/2008 & connected cases 6 respect to taking the policy. Hence the Tribunal concluded that the insurer cannot be exonerated from the liability. The insurance company is challenging the above said finding of the Motor Accidents Claims Tribunal, Kottayam in the appeals filed as M.A.C.A.Nos.3055/2008 and 3061/2008. The insurance company is also challenging the quantum of compensation awarded by the Tribunal in both the said cases, as extensive. In M.A.C.A.No.2965/2009 and in the Cross Objection No.103/2017 filed in M.A.C.A.No.3055/2008, the claimants in O.P.(MV) No.963/2002 are challenging the quantum of compensation awarded as insufficient, inadequate and disproportionate.

6. At the first instance we may deal with the question regarding liability of the insurer to pay the compensation. The insurance company is challenging the awards passed by the Tribunal at Kottayam rejecting their claim for exoneration. Whereas the Grama Panchayath, who is the owner of the vehicle, is challenging the findings of the Tribunal at Thodupuzha, which had MACA No.2346/2008 & connected cases 7 exonerated the insurance company from the liability. The admitted facts are that; the vehicle in question, which is a Jeep, is owned by the Grama Panchayath. There is an endorsement made in the Registration Certificate of the vehicle articulating a trailer, with effect from 16.07.1993. The accident occurred on 9.8.2000. There is also an endorsement to the effect that, articulation of the trailer was detached subsequent to the accident. Ext.B3 would also indicate that, during the time when the trailer was attached, the vehicle had a fitness certificate which was valid upto 19.07.1994. From the available evidence the Tribunal at Kottayam had come to a conclusion that, at the time of the accident there was no trailer attached to the vehicle in question and that the jeep was used as a private vehicle for carrying passengers. Ext.B9 is the copy of the Policy certificate issued with respect to the vehicle in question for the relevant period. The said document would indicate that the Policy was issued for the period from 11.05.2000 to 10.05.2001. The policy in question was a comprehensive policy with respect to MACA No.2346/2008 & connected cases 8 a private car ( private jeep). Contention of the insurance company is that the fact of articulation of the trailer and the endorsement made to that effect in the Registration Certificate were suppressed by the insured and there occurred non-disclosure or misrepresentation of a material fact, which would render the policy void and therefore the company is not liable.

7. In this regard, the relevant provision in the Motor Vehicles Act, 1988 which enables the insurance company to repudiate their liability is section 149(2). Sub Section 2(b) of Section 149 provides that, the insurance company can defend the action of a claim on the ground that the policy is void because it was obtained by the non-disclosure of a material fact or by representation of a fact which was false in some material particulars. Based on the above said provision, for repudiating the liability based on a policy, the insurer had to prove that the policy had become void on the ground that it was obtained by nondisclosure of a material fact or by representation of fact which MACA No.2346/2008 & connected cases 9 was false in some material particulars. In the case at hand, contention of the insurance company is that, the articulation of a trailer to the Jeep endorsed in the Registration Certificate was not disclosed at the time of taking the policy in question.

8. We are of the considered opinion that the insurance company was not successful before the Tribunal in proving that, there occurred non-disclosure of any material facts or representation of a fact which was false in some material particulars, from the side of the insured, at the time of taking the policy. The burden in this regard, obviously lies on the insurance company. It cannot be contended that the policy of insurance was issued without verifying the Registration Certificates with respect to the particulars of the vehicle in question, atleast with respect to particulars regarding the class/type of the vehicle. Further, there is no case for the insurance company that the insured had submitted a proposal for obtaining the policy by suppressing any material facts or by misrepresenting any material particulars. After being issued MACA No.2346/2008 & connected cases 10 with a policy for a particular vehicle, the company cannot be heard to content that the policy was issued on a misunderstanding that the vehicle belonged to a different class or type. Further, on going by the provision contained under Section 61 of the Motor Vehicles Act, 1988 there should be a separate registration for the trailer and the registration mark need to be displayed on the trailer. The above provision, when considered coupled with the definition of 'Motor vehicle' contained in Section 2 (28), it is clear and evident that the trailer need to be treated as a separate vehicle. Therefore it cannot be said that no insurance policy can be given for a jeep without issuing a policy for the trailer. In other words, going by provisions of the Motor Vehicles Act, the 'droving vehicle' ( jeep in this case) as well as the 'trailer' need to be treated as separate motor vehicles. If the insured had chosen to take a policy only with respect to the 'droving vehicle', it cannot be contended that the policy is void merely because there is an endorsement in the Registration Certificate permitting articulation of a trailer, which in MACA No.2346/2008 & connected cases 11 the legal parlance is yet another motor vehicle. In the case at hand, there is evidence to the effect that, at the time of the accident the trailer was not attached to the jeep; and the trailer, which is a separate motor vehicle, was not involved in the accident. Therefore it cannot be accepted that the insurance policy issued with respect to the jeep was void.

9. Sri.A.R.George, learned standing counsel appearing for the insurance company, contended that, by virtue of the endorsement contained in the Registration Certificate, with respect to articulation of the trailer, the vehicle in question was transformed into the category of a transport vehicle and therefore the Policy in question issued as a private jeep for carrying passengers cannot be considered as a valid policy. In this regard the learned standing counsel had relied on a decision rendered by a learned Judge of this court in M.A.C.A.No.1811/2008, dated 15.10.2009. It is to be noticed that, on the facts of the said case, the accident occurred when the vehicle was moving along with the MACA No.2346/2008 & connected cases 12 trailer. There the observation is that, had it been a tractor alone ( the droving vehicle) it will not become a goods carriage, but it was attached with a trailer. It was held that, the tractor with the trailer would satisfy the definition of 'transport vehicle' coming within the purview of Section 2(47) of the Act.

10. Based on the contention that when the trailer is attached it will become a transport vehicle, learned counsel contended that there is a consequential requirement of fitness certificate and authorization for the driver of the vehicle (Badge) for driving a transport vehicle. As already observed, when the insurer had issued policy only with respect to the jeep and not to the trailer also, and at the time of the accident the droving vehicle alone was involved, they cannot be permitted to repudiate the liability on the contention that by the endorsement of articulation the vehicle has become a transport vehicle. However, in the case at hand, the burden on the part of the insurance company in proving that the vehicle in question was lacking a fitness certificate MACA No.2346/2008 & connected cases 13 at the relevant time, was not seen discharged. There is also no clear proof adduced from the side of the insurance company to satisfy the requirement of Section 149, to allege a violation of the policy conditions.

11. We also take note of a recent decision of the honourble Supreme Court in Mukund Dewangan v. Oriental Insurance Company Ltd. [2017 (4) KHC 648 (SC)], wherein it is held that, such authorization is not required in respect of vehicles having an unladen weight of less than 7500 kgs. From the above discussions, we are persuaded to arrive at the conclusion that the insurance company cannot be exonerated from the liability based on the ground stipulated under Section 149 (2)(b), since it is not proved that the policy was void because of any suppression of material facts. We are also not persuaded to accept the contention that there occurred any violation of the policy conditions, which will entitle them to recover the amount of compensation from the insured.

MACA No.2346/2008 & connected cases 14

12. Consequence of the above discussions is to the effect that, the appeals filed by the insurance company ( M.A.C.A.No.3055/2008 and 3061/2008) shall fail to the extent it challenged the findings of the Tribunal at Kottayam making them liable to pay the amount of compensation and the appeals filed by the Grama Panchayath ( M.A.C.A.No.2346/2008 and 2397/2008) challenging the award of the Tribunal at Thodupuzha would succeed in this regard.

13. The next question to be considered is regarding adequacy of the amount of compensation awarded in O.P.(MV) No.963/2002 and 77/2003 by the Motor Accidents Claims Tribunal, Kottayam. In O.P.(MV)No.963/2002, the deceased was an employee of the Grama Panchayath ( LD Clerk). The claimants were the wife, three daughters and mother of the deceased. The mother died subsequent to passing of the award. The 1st three claimants are the cross objectors in C.O. No.103/2017, seeking enhancement of the amount of compensation. The appellant in MACA No.2346/2008 & connected cases 15 M.A.C.A.No.2967/2009 is the 4th claimant, who is one among the daughters. The insurance company is challenging that the amount awarded is excessive, mainly pointing out that the Tribunal went erred in applying the entire multiplier for computing the loss of dependency, when it is certain that the deceased would retire after a few years, had he been continued in service. The finding of the Tribunal is that the deceased Ravindran was aged 48 years as per the claim made. But it was found that, in Ext.A11 postmortem certificate his age was shown as 50 years. Ext.A13 is the salary certificate of the deceased. But the said document does not contain neither his date of birth nor his date of his superannuation. The Tribunal adopted the multiplier of 13 for, computing loss of dependency, considering the age of the deceased. Contention of learned standing counsel for the insurance company is that, while adopting the multiplier of 13, the Tribunal had failed to consider the event of superannuation. It is contended that, the Tribunal ought to have adopted split multiplier method in this case. Based MACA No.2346/2008 & connected cases 16 on the above contention, we are persuaded to look into the award in order to ensure that 'just compensation' is awarded to the dependents. There is no dispute that the deceased was drawing a monthly salary of Rs.4,464/- at the time of his death. There is no clear evidence regarding his age at the time of death. Therefore we accept his age as 48 years. Under such circumstances, the deceased was left with service of 7 years, till the date of his superannuation, which was 55 years at the relevant time. But it is pertinent to note that, the Tribunal has not considered anything towards future prospects in the career of the deceased and has not made any addition on the income of the deceased, taking note of the probable pay revision, promotion etc. It now remains trite that, for a person having a permanent employment and fixed income, who is in the age group of 40-50, 30% addition need to be provided towards future prospects. Therefore, we are inclined to adopt split multiplier method. For the period of 7 years, the income of the deceased is considered as Rs.5,803/- ( 4464 + 30%). MACA No.2346/2008 & connected cases 17 For the said period, the loss of dependency is recomputed as Rs.3,65,589/- ( 5803 x 12 x 7 x >). The deduction for personal expenses is considered as <th, because the deceased was survived by more than four dependents. For the period after his retirement, the loss of income for determination of dependency is considered as 50%; i.e. Rs.2901 ( 5803 x 1/2). Computed on that basis, for the remaining period of six years, the loss of dependency is recomputed at Rs.1,56,654/- ( 2901 x 12 x 6 x >). Thus the total amount which can be awarded under the head of loss of dependency is refixed at Rs.5,22,243/- ( 365589 + 156654). After deducting the amount already awarded under this head, the cross objectors in C.O. No.103/2017 as well as the appellant in M.A.C.A.No.2965/2009 will be entitled for a total enhancement of Rs.57,987/- on the head of loss of dependency.

14. We find that the Tribunal had awarded only a sum of Rs.6,000/- towards funeral expenses, which we find as insufficient and inadequate. We are inclined to award a further sum of MACA No.2346/2008 & connected cases 18 Rs.19,000/- on that count. Towards loss of consortium only a meagre amount of Rs.5,000/- was awarded. Considering the fact that the widow of the deceased ( 1st claimant) had lost her husband at a comparatively young age, we are inclined to award a further sum of Rs.70,000/- on that count. We further notice that, towards loss of love and affection of petitioners 2 to 4, the Tribunal had awarded only a sum of Rs.6,000/-. We notice that the 5th claimant, who was the mother of the deceased is no more. Claimants 2 to 4 are the daughters of the deceased. We are of the opinion that compensation under the head of loss of love and affection need to be refixed at Rs.75,000/- ( 25000 x 3). This will entitle the claimants for a further enhancement of Rs.69,000/-.

15. Learned Standing Counsel contended that the amount of Rs.30,000/- awarded towards pain and suffering is highly excessive, considering the fact that the death occurred instantaneously. It is further contended that the amount of Rs.8,000/- awarded under the head of shortening of life is MACA No.2346/2008 & connected cases 19 unsustainable. We take note of the fact that the accident occurred in the year 2000 and the deceased died immediately after the accident. Therefore we are inclined to reduce the amount under the head of pain and suffering to Rs.10,000/-, which will reduce the total compensation by a sum of Rs.20,000/-. With respect to the amount awarded under the head of shortening of life, we take note of the fact that the Tribunal had not awarded any amount towards loss of estate. Therefore we are inclined to adjust the above said amount of Rs.8,000/- under the head of loss of estate. Thus we hold that the net amount of enhancement for which claimants 1 to 4 is entitled is a sum of Rs.1,95,987/-

16. The insurance company is challenging the amount of compensation awarded in O.P.(MV)No.77/2003 as excessive, in M.A.C.A.No.3061/2008. We take note of the fact that the claimants in the said case have not approached this court in any appeal or cross objection filed. But it remains settled through various legal precedents of the apex court that, this court can MACA No.2346/2008 & connected cases 20 invoke powers vested under Order 41 Rule 33 of the Code of Civil Procedure in order to ensure that 'just compensation' is awarded in the motor accident claims. Therefore we are inclined to reconsider the quantum of compensation awarded in the said case.

17. The deceased was an L.D.Clerk in the Panchayath. He was aged 47 years at the time of death and was drawing a monthly salary of Rs.4,964/-. Adopting the very same method as in the previous case, we are inclined to accept split multiplier method by assuming that he would have continued for a period of 8 years in the service, had he been alive. By adding 30% towards future prospects, we refix the loss of dependency for the said period at Rs.4,12,992/- ( 4964 + 30% x 12 x 8 x 2/3). For the remaining period of 5 years, half the income is adopted as the multiplicand. For the said period the loss of dependency is reworked to Rs.1,29,040/- ( 3226 x 12 x 5 x 2/3). Therefore it is held that the claimants therein are entitled to get refixation of the compensation under the head of loss of dependency at Rs.5,42,032/-. After MACA No.2346/2008 & connected cases 21 deducting the amount already paid, they are entitled for an enhancement of Rs.25,776/- on that count.

18. While considering the amount of compensation awarded under other heads, we are inclined to refix the loss of consortium at Rs.75,000/-, which will entitle for an enhancement of Rs.70,000/-. With respect to loss of love and affection, we take note of the fact that two children of the deceased were minors of tender age. Therefore we fix the compensation under that head at Rs.60,000/- ( 30000 x 2). This will entitle the claimants for an enhancement of Rs.56,000/-. We are also inclined to award a further sum of Rs.19,000/- under the head of funeral expenses. The amount awarded under the head of pain and suffering is reduced to Rs.10,000/-, as in the previous case. The amount of Rs.8,000/- awarded towards shortening of life is adjusted as compensation under the head of loss of estate. After setting off the deduction of Rs.20,000/- the net amount of compensation for which the claimants will be entitled is fixed at Rs.1,50,776/-. MACA No.2346/2008 & connected cases 22

19. In the result, M.A.C.A.No.3055/2008 and 3061/2008 filed by the insurance company are hereby dismissed, to the extent it raised challenge against the finding of liability upon them. Cross Objection No.103/2017 and M.A.C.A.No.2965/2009 are allowed in part. The total compensation awarded in O.P.(MV)No.963/2002 of Motor Accidents Claims Tribunal, Kottayam is enhanced by a further sum of Rs.1,95,987/-. The said amount will carry interest at the same rate as awarded by the Tribunal, from the date of the claim petition till realization. In view of the death of the 5th claimant who was the mother of the deceased, we order that the claimants 1 to 4 will be entitled for the total amount of compensation along with interest due thereon, in equal proportion.

20. In M.A.C.A.No.3061/2008 filed against O.P.(MV) No.77/2003 of Motor Accidents Claims Tribunal, Kottayam the total compensation awarded by the Tribunal is enhanced by a further sum of Rs.1,50,776/-. In view of the fact that the claimants have not approached this court in any appeal or cross objection, we MACA No.2346/2008 & connected cases 23 hold that the amount of enhancement will not carry any interest. The original amount awarded by the Tribunal along with interest due thereon and the amount of enhancement granted through this judgment shall be apportioned among the claimants in the ratio as held by the Tribunal.

M.A.C.A.No.2346/2008 and 2397/2008 filed by the Panchayath is allowed to the extent of setting aside the impugned awards in O.P.(MV)No.591/2000 and 648/2000 to the extent it directed the appellant to make payment of the compensation. Needless to observe that the appellant Panchayath will be entitled for refund of amount if any already paid deposited.

C.K.ABDUL REHIM, JUDGE K.P.JYOTHINDRANATH, JUDGE sv.

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