Kerala High Court
The Oriental Insurance Company Limited vs Vineetha Nair on 10 May, 2012
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
WEDNESDAY, THE 1ST DAY OF JUNE 2016/11TH JYAISHTA, 1938
MACA.No. 2205 of 2012 ()
-------------------------
AGAINST THE AWARD IN OPMV 783/2003 of ADDL.MACT, ERNAKULAM DATED 10-05-2012
APPELLANT(S)/5TH RESPONDENT:
----------------------------------------------
THE ORIENTAL INSURANCE COMPANY LIMITED
MATTANCHERRY,
NOW REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, METRO PALACE, KOCHI-18.
BY ADVS.SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENT(S)/PETITIONERS AND RESPONDENTS 1 TO 4:
-------------------------------------------------
1. VINEETHA NAIR
W/O.LATE GOVIND G.NAIR, LINK HEIGHT, 16-D,
PANAMPILLY NAGAR, KOCHI-682036.
2. VISHNU NARAYAN (MINOR)
S/O.LATE GOVIND G.NAIR, LINK HEIGHT, 16-D,
PANAMPILLY NAGAR, KOCHI-682036,
REP. BY MOTHER VINEETHA NAIR 1ST RESPONDENT.
3. B.SUJATHA DEVI
LINK HEIGHT, 16-D, PANAMPILLY NAGAR, KOCHI-682036,
NOW RESIDING AT VARDHA, NANDAVANAM,
THIRUVANANTHAPURAM, PIN 695530.
4. JACOB KURUVILLA
S/O.KURUVILLA, MADAPPALLY HOUSE,
KIZHAKKAMBALAM P.O., PAZHANGANAD, PIN 682032.
5. MOHMMED E.M.
S/O.C.A.MARAKKAR, KMDS KARUMPAMPALLY,
CHEERNANKUZHY HOUSE, EDATHALA P.O., PIN 682047.
6. THE MANAGER
M/S.UNITED INDIA INSURANCE COMPANY LIMITED,
VAKAKKANETHIL TOWERS, PRIVATE BUS STAND ROAD,
PERUMBAVOOR, PIN682238.
-2-
MACA.No. 2205 of 2012 ()
7. THE MANAGING DIRECTOR
M/S.HARMONY SPICES LTD., 12/607,
JAWAHAR ROAD, KOOVAPADAM, KOCHI-682002.
R6 BY ADVS. SRI.M.A.GEORGE
SMT. DEEPA GEORGE
R1-R3 BY ADVS. SRI.A.ABDUL KHARIM
SRI.M.SREEKUMAR
SRI.PRAKASH P.GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
01-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
dlk
"C.R"
C.T. RAVIKUMAR
&
K. P. JYOTHINDRANATH, JJ.
==========================
M.A.C.A. No.2205 OF 2012
==========================
Dated this the 1st day of June, 2016
JUDGMENT
Jyothindranath, J.
This appeal is filed by the Oriental Insurance Company Ltd. aggrieved by the award dated 10.5.2012 in O.P.(MV).No.783 of 2003 on the files of the Motor Accidents Claims Tribunal, Ernakulam. The appellant was the fifth respondent before the Tribunal.
2.The facts, relevant for consideration of this appeal, are as follows:-
A motor vehicle accident occurred on 17.11.2002 at about 3.30 a.m on Indira Gandhi Road in Wellington Island. The vehicles involved are a Maruthi Car bearing Reg.No.KL-07-M-8701 and a M.A.C.A.2205/2012 2 Tipper lorry bearing Reg.No.KL-23-9068. In the said accident, the driver of the car as well as the passenger therein sustained fatal injuries and succumbed to the same. The wife and children of deceased Govind G.Nair who was the passenger therein filed O.P. (MV).No.783 of 2003 before the Tribunal. The claimants arrayed the driver, owner and insurer of the lorry as well as the owner and insurer of the car as the respondents therein. The Tribunal passed an award for a total sum of `16,82,000/- and it was directed to deposit the amount by the fifth respondent, insurance company. Aggrieved by the said award, this appeal is filed by the fifth respondent-insurance company.
3.When the appeal came up for hearing, Adv.Sri.Mathew Jacob, the learned senior counsel appearing for the appellant insurance company made the following submissions:-
The driver, owner and insurer of the lorry as well as the owner and insurer of the Maruthi car were arrayed as respondents in the claim petition. It is also submitted that, from the opening paragraph M.A.C.A.2205/2012 3 of the impugned award, it can be seen that the case of the claimants was that the accident was the result of rash and negligent driving of the second respondent. But, without considering the said aspect, the award was passed. It is also the submission that as per paragraph 9 of the award, the Tribunal appears to have come to a conclusion that it is a case of composite negligence. Paragraph 9 of the award is as follows:-
"From the above discussion it is clear that R1 to R3 and R4 and R5 are jointly and severally liable for the compensation. Therefore the insurer of Maruthi car has to deposit 50% each of the compensation within 30 days from the date of receipt of the award."
Thus, there is a clear cut finding to the effect that all the respondents are jointly and severally liable followed by a specific direction to the insurer of the Maruthi car to deposit only 50% of the award. Contrary to the said finding, in the operative portion, a direction is given to deposit the whole amount by the appellant-insurance company. It is also the submission of the learned senior counsel that, even though the Tribunal found that the income of the deceased is `12,000/- per M.A.C.A.2205/2012 4 month, no amount is seen deducted towards income tax. The submission is that even though `12,000/- was his actual income, the income available for carrying home will be only the amount available after deducting the income tax. It is also submitted before us that the accident occurred in the year 2002. As per the materials available before the Tribunal, it can be seen that the driver of the car has consumed alcohol. The said fact is evident from Ext.A7 postmortem certificate. It is the submission of the learned senior counsel that when a person entered the vehicle knowing well that the driver had consumed alcohol, then it will be a case where the principle of volunti non fit injuria comes to play. It is the submission that when the deceased voluntarily assumed such a risk, it is to be taken that he knew that by entering into and travelling in a vehicle driven by a person who consumed alcohol, he was exposing himself to danger, appreciated it and voluntarily undertook such a risk and therefore, being a person consented to such an act complained of must bear the loss arising out of such act to which he consented. In the circumstances, in view of the aforesaid principle, the appellants being M.A.C.A.2205/2012 5 the legal heirs of such a person, they are not entitled to any compensation. This aspect is also not considered by the Tribunal. Thus, the submission of the learned senior counsel is that considering the above aspects, the impugned award is liable to be set aside.
4.The learned counsel appearing for the claimants submitted before us that originally the claim was filed arraying all the necessary persons behind both the vehicles as respondents 1 to 5. But, after getting the police report, it was found that the negligence was on the side of the driver of the car. As such, I.A.No.7732/2003 was filed before the Tribunal seeking amendment. The said I.A was allowed as per order dated 21.11.2003 and the amendment was carried out. It is the submission that, even though, as per the award, it appears that the negligence attributed by the claimants is against second respondent, it is not correct. It is also submitted that the amounts awarded on various heads are inadequate and non-deduction of income tax will not prejudice the appellant. It is the further submission that the amount awarded for loss of consortium is only `15,000/- whereas M.A.C.A.2205/2012 6 the first petitioner, the wife of the deceased, only aged 30 years at the time of the accident, is entitled to at least a sum of `1,00,000/-. Similarly, the compensation awarded on the heads of funeral expenses and loss of love and affection is also inadequate. It is the submission that the second petitioner was aged only 8 years at the time of the accident. The third petitioner is none other than the mother of the deceased. It is the further submission that even though there is no evidence to the effect that the amount paid is after deducting the income tax, it is the payment made by a partnership firm where the income tax had to be deducted at source. Then, the deceased was getting only an amount after deduction, it is submitted.
5.The learned counsel for the sixth respondent (third respondent in the claim petition) submitted before us that, there is a clear finding in paragraph 8 of the award to the effect that the accident occurred due to the negligence of the driver of the car. It is also the submission that here is a case where the car came and hit on the back side of the lorry. A reasonable distance has to be kept in between the vehicles by M.A.C.A.2205/2012 7 the driver of a vehicle who is proceeding behind another vehicle. Then considering the said principle, prima facie, the negligence is on the side of the driver of the car and when there is a finding in paragraph 8 to that effect, no illegality committed by the Tribunal by directing the fifth respondent/insurance company who is the appellant herein to deposit the amount. Hence, there is no merit in the appeal.
6.On perusal of the claim petition, it is found that the original claim petition was amended as per order in I.A.No.7732/2003. The amendment is seen carried out and counter signed by the presiding officer. As per the amended petition, the allegation of negligence is attributed solely against the driver of the car.
7.We perused Ext.A5 report filed by the Police after investigation in the crime. It is actually a closure report, as the accused is no more. As per the said report, it can be seen that the Maruthi car hit on the back side of the lorry. We also perused the AMVI report of the car. The damage is on the front side of the car M.A.C.A.2205/2012 8 which is also a corroboration to the version that the car hit on the back side of the lorry.
8.We also perused the Rules of Road Regulations, 1989. As per Rule 23, it can be seen that when two vehicles are on road, the vehicle moving behind has to keep a distance in between the same. Rule 23 of the Rules of Road Regulations says as follows:-
"23.Distance from vehicles in front--The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front suddenly slow down or stop."
9.Surely, Rule 24 of the Rules of Road Regulations prohibits usage of sudden brake unless it is necessary to do so, for safety reasons. But, that aspect will come only as a rebuttal of the negligence that can be attributed against the vehicle driving behind the said vehicle. Under such circumstances, we feel that no illegality has been committed by the Tribunal in its finding that the accident occurred due to the negligence of the driver of the car. M.A.C.A.2205/2012 9
10.Now, the next point raised before us by the insurance company is regarding the non-consideration of the specific contention taken by the company founded on the principle of volunti non fit injuria. It is true that the principle of volunti non fit injuria can be taken as a defence even in a liability arising on the strict liability principle developed from the good old case law in Ryland v. Fletcher, much less to say, in a claim under the Motor Vehicles Act. The positive case of the insurance company is that the deceased driver of the car was under the influence of alcohol. Ext.A7 is the post mortem certificate of Govind G.Nair. We perused the said document. It can be seen that there is nothing therein to show that he had consumed alcohol. Ext.B2 is the copy of the postmortem certificate of the deceased driver. It is stated therein that the stomach contained clear fluid having alcoholic smell. Only because there is alcoholic smell, it cannot be held that he was under the influence of alcohol. Even in a prosecution under section 185 of the Motor Vehicles Act, there should be a clear allegation to the effect that the alcohol content M.A.C.A.2205/2012 10 is 30 mg per 100 ml of blood. Considering all these aspects and also keeping in mind the fact that only because the driver of the car was found consumed alcohol, by no stretch of imagination, can it be said that the co-passenger will not be entitled for compensation. The act complained of, in this case, would not constitute a good defence by reason of the maxim 'volunti non fit injuria' which bars the right of action as 'damage suffered by consent is not a cause of action'. According to us, the conduct as alleged against the deceased would not amount to consent capable of bringing a bar based on the aforesaid principle. For the reasons now stated, we are of the considered view that no illegality was committed by the Tribunal in not accepting the contentions based on the aforesaid principle. Moreover, the said contention was advanced by the insurance company of the Maruthi car. An insurance company can advance only defence available under section 149 (2) of the M.V.Act. There is no material before us to hold or presume that the owner of the vehicle permitted them or gave consent to drive the vehicle in a sottish stage. Similarly, a mere consumption of alcohol is not a defence available M.A.C.A.2205/2012 11 under section 149(2) of M.V.Act. Under such circumstances, the insurance company cannot avoid, by putting forward the principle volunti non fit injuria.
11.Another aspect brought to our notice is regarding the quantum of compensation awarded. The main argument of the learned senior counsel for the insurance company is that no deduction is made towards income tax. In this regard the submission of the counsel for the claimants is that the amount was being disbursed to the deceased every month after deducting income tax from the source. Surely, there is no material before us to hold as such. But at the same time, we feel that the compensation awarded towards loss of love and affection, loss of consortium and funeral expenses is on a lower side. Surely, in this case, the claimants filed no appeal. Thus, whether an interference is warranted in this aspect has to be looked into.
12.After considering the fact that the amounts awarded on the heads of loss of consortium, loss of love and affection and funeral M.A.C.A.2205/2012 12 expenses are on a lower side, even though no deduction is made towards the income tax to be payable by the deceased, we are not inclined to interfere with the amount now fixed as compensation, as it appears to be a just compensation, taking into consideration the fact that the amounts awarded on other heads will compensate the amount that has to be deducted towards income tax payments.
Thus, it can be seen that there is no merit in the appeal and it is dismissed. Under peculiar circumstances, no order as to costs.
Sd/-
C.T. RAVIKUMAR (JUDGE) Sd/-
K. P. JYOTHINDRANATH
(JUDGE)
spc/
M.A.C.A.2205/2012 13
C.T. RAVIKUMAR, J.
M.A.C.A.2205/2012 14
JUDGMENT
September,2010