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2020 DIGILAW 587 (KER)

Bernad, S/o. Nicholvas v. Elsy Jose, W/o. Jose

2020-07-10

N.NAGARESH

body2020
JUDGMENT : The petitioners in OP(MV) No.934/2002 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda are in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by Award dated 15.03.2008. 2. An accident occurred on 16.04.2002 at Kandarampady on the North Paravur – Varapuzha public road, involving motorcycle No.KL-08S-7859. The appellants are lelgal heirs of the pillion rider of the motorcycle. The pillion rider died in the accident. The rider of the motorcycle filed OP(MV) No.932/2002 under Section 163A of the Motor Vehicles Act, 1988. The appellants-legal heirs of the pillion rider, filed OP(MV) No.934/2002 under Section 166 of the Act. 3. The insurance company alone contested the claim. The other respondents remained ex parte. The insurance company alleged that the accident occurred due to the negligence on the part of the petitioner in OP(MV) No.932/2002 himself, who was the rider of the motorcycle. 4. The appellants produced Exts.A1 to A8 and the insurance company produced Ext.B1 copy of insurance policy. The Tribunal found that the accident occurred due to the rashness and negligence on the part of the rider of the motorcycle. The Tribunal granted a compensation of Rs.1,54,700/- to the appellants with interest in OP(MV) No.934/2002 under the following heads:- 1. Dependency compensation for first three years Rs.48,000/- 2. Dependency compensation for next eight years Rs.64,000/- 3. Loss of love and affection Rs.10,000/- 4. Funeral expenses Rs.4,000/- 5. Pain and suffering Rs.7,000/- 6. Medical expenses Rs.17,700/- Total Rs.1,50,700/- In fact, there occurred an arithmetical error in the Award inasmuch as the total of the compensation ordered by the Tribunal under various heads, would come to only Rs.1,50,700/- as against the figure Rs.1,54,700/- given in the Award. 5. Though the Tribunal assessed the compensation payable in OP(MV).No932/2002 as Rs.91,700/-, the Tribunal held that since the petitioner therein was responsible for the accident, he cannot be granted compensation. As there was no permanent disability caused on the petitioner, his claim under Section 163A also is not maintainable. Consequently, OP(MV).932/2002 was dismissed. 6. As regards OP(MV) No.934/2002 from which this MACA arises, the Tribunal found that the definite case of the insurance company is that the policy issued by the company does not cover the risk of rider or pillion riders. Consequently, OP(MV).932/2002 was dismissed. 6. As regards OP(MV) No.934/2002 from which this MACA arises, the Tribunal found that the definite case of the insurance company is that the policy issued by the company does not cover the risk of rider or pillion riders. The Tribunal held that gratuitous passengers having a motorcycle can get coverage only if an extended policy is obtained by the owner by paying additional amount of premium. Consequently, the appellants were allowed to realise the compensation of Rs.1,54,700/- from respondents 1 and 2 with interest at the rate of 7% per annum from the date of the petition. 7. Aggrieved by the meager amount of compensation awarded and also aggrieved by absolving the insurer from liability, the appellants are before this Court. 8. Learned counsel for the appellants argued that the policy in question is not a Act only Policy. It was, in fact, a package policy/comprehensive policy. As regards the income of the deceased fixed by the Tribunal at Rs.2,000/-, the counsel for the appellants argued that the Tribunal was legally bound to fix the monthly income as Rs.5,000/-. Similarly, instead of taking the multiplier 18 on the basis of the age of the deceased, the Tribunal adopted split multipliers which is illegal. 9. The learned counsel for the appellants further argued that the Tribunal omitted to consider future prospects of the deceased while computing compensation for death. The amount of Rs.10,000/- awarded for love and affection is too meager. Compensation for funeral expenses Rs.4,000/- granted by the Tribunal is not anywhere near the standardised rate. The amount of Rs.7,000/- granted towards pain and suffering also requires upward revision. The Tribunal did not grant any amount towards transportation expenses, damage to clothes and loss of estate. In the circumstances, the compensation amount is liable to be enhanced and the 3rd respondent-insurer should also be made liable to pay the compensation. 10. Learned Standing Counsel for the insurer, on the other hand, argued that the Tribunal was justified in assessing the contribution to the family that would have been made by the deceased, taking into account the age of the deceased. The appellants did not adduce any evidence to prove the income of the deceased and the appellants cannot now raise a grievance in that regard. The Tribunal has considered all aspects of the case and has awarded reasonable compensation which needs no revision. 11. The appellants did not adduce any evidence to prove the income of the deceased and the appellants cannot now raise a grievance in that regard. The Tribunal has considered all aspects of the case and has awarded reasonable compensation which needs no revision. 11. I have heard the learned counsel for the appellants and learned Standing Counsel for the 3rd respondent-insurer. 12. The deceased was aged 24 years at the time of his death on 18.04.2002. The appellants claimed that he was an Artist having a monthly income of Rs.5,000/-. The Tribunal, however, fixed the income as Rs.2,000/-per month. True that the appellants could not produce any documents in proof of the income of the deceased. A freelance Artist, unless he is having taxable income, cannot be expected to produce documentary proof with regard to income. Artist is a self-employed person. Going by the judgment of the Hon'ble Apex Court in Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Co. Ltd. [ (2011) 13 SCC 236 ], the notional income of the deceased who was self-employed, is liable to be fixed at Rs.3,500/-per month. Future prospects of 40% has to be added towards the monthly income, which would bring his notional income to Rs.4,900/-. the deceased being a bachelor, 50% of the income should be deducted towards his personal and living expenses. Accordingly, the notional income of the deceased for the purpose of computation of compensation for his death is to be fixed as Rs.3,150/-(Rs.3,500 + Rs.1,400 - Rs.1,750). The deceased being 24 years of age, the multiplier of 18 should be adopted. 13. Though the Tribunal has relied on certain judgments to adopt a different course for computation of compensation, going by the judgment of the Apex Court in Sarla Verma and others v. Delhi Transport Corporation and another [ (2009) 6 SCC 121 ], the multiplier should be based on the age of the deceased. In view of the above, the appellants will be entitled to an amount of Rs.6,80,400/-(Rs.3,150 x 12 x 18) as compensation for loss of dependency. The Tribunal has already awarded an amount of Rs.1,12,000/- under this head. Therefore, it is held that the appellants will be entitled to an additional compensation of Rs.5,68,400/- towards additional compensation for loss of dependency. 14. The Tribunal has granted only Rs.4,000/- towards funeral expenses. The Tribunal has already awarded an amount of Rs.1,12,000/- under this head. Therefore, it is held that the appellants will be entitled to an additional compensation of Rs.5,68,400/- towards additional compensation for loss of dependency. 14. The Tribunal has granted only Rs.4,000/- towards funeral expenses. In view of the standardised rates prescribed in the judgment in National Insurance Co. Ltd. v. Pranay Sethi and others [ (2017) 16 SCC 680 ], the appellants should be entitled to Rs.15,000/- under this head. It is therefore held that the appellants will be entitled to an additional compensation of Rs.11,000/-(Rs.15,000 – Rs.4,000) towards additional compensation for funeral expenses. After the accident on 16.04.2002, the deceased was taken to hospital and he succumbed to the injuries after two days on 18.04.2002. Therefore, it is only appropriate that the appellants be held entitled to a compensation of Rs.15,000/- towards pain and suffering. The Tribunal has granted only Rs.7,000/- under this head. It is therefore held that the appellants will be entitled to an additional compensation of Rs.8,000/- towards pain and suffering. 15. The Tribunal has not granted any amount towards loss of estate. Even though the appellants are granted compensation for loss of dependency, a reasonable amount ought to have been awarded to the appellants for loss of estate. Accordingly, it is declared that the appellants will be entitled to Rs.15,000/- towards loss of estate. 16. The Tribunal did not award any compensation under the heads transportation and damage to clothing, to which the appellants are indeed entitled to. Accordingly, it is declared that the appellants will be entitled to Rs.2,000/- as compensation towards transportation and Rs.750/- as compensation towards damage to clothing. 17. As regards the liability of the insurer, I have gone through a copy of Ext.B1 insurance policy. It is a 'Policy B'. The said insurance policy would indicate that it is a package policy. A Division Bench of this Court has held in New India Assurance Co. Ltd. v. Hydrose [ 2008 (3) KLT 778 ] that if the policy provides for risk of gratuitous passengers in motorcycle provided the person is not carried for higher or reward, then the insurer is liable to pay compensation for pillion rider. The Hon'ble Apex Court in the judgment in National Insurance Co. Ltd. v. Hydrose [ 2008 (3) KLT 778 ] that if the policy provides for risk of gratuitous passengers in motorcycle provided the person is not carried for higher or reward, then the insurer is liable to pay compensation for pillion rider. The Hon'ble Apex Court in the judgment in National Insurance Co. Ltd. v. Balakrishnan and another [ AIR 2013 SC 473 ] held that liability of the insurer under an Act only Policy is distinct from the liability arising from a Comprehensive/Package policy. The learned counsel for the appellants also relied on a Circular No.IRDA/NL/CIR/F&U/073/11/2009 dated 16.11.2009 of the Insurance Regulatory and Development Authority which would also show that in the case of a Standard Motor Package Policy (also called Comprehensive Policy) for private car and two-wheeler, subject to the limits of liability as laid down in the schedule, the company will indemnify the insured in the event of an accident caused by or arising out of the use of the insured vehicle against all sums which the insurer shall become legally liable to pay in respect of death or bodily injury to any person including occupants carried in the vehicle, provided that such occupants are not carried for hire or reward. In view of the finding of this Court that Ext.B1 is a Package Policy, the 3rd respondent-insurer will also be jointly and severally liable to pay the compensation amount to the appellants. 18. In view of the above, the appellants will be entitled to an additional compensation of Rs.6,05,150/- under the following heads:- (i) Additional compensation towards loss of dependency Rs.5,68,400/- (ii) Additional compensation towards funeral expenses Rs.11,000/- (iii) Additional compensation towards pain and suffering Rs.8,000/- (iv) Compensation towards loss of estate Rs.15,000/- (v) Compensation towards transportation expenses Rs.2,000/- (vi) Compensation towards damage to clothing Rs.750/- Total Rs.6,05,150/- The 3rd respondent-insurer is directed to satisfy the original Award and also to deposit the amount of Rs.6,05,150/- with 7% interest per annum from the date of the OP(MV) within 30 days. MACA is allowed in part. The judgment dated 10.07.2020 in MACA No.2119/2009 is corrected on the following lines as per order dated 21.01.2021 in IA No.2/2020. The amount of Rs.3,150/-(Rs.3,500 + Rs.1,400 - Rs.1,750) shown in the 20th line of paragraph 12 at page 7 of the judgment is corrected as Rs.2,450/-(Rs.3,500 + 1,400 - Rs.2,450). MACA is allowed in part. The judgment dated 10.07.2020 in MACA No.2119/2009 is corrected on the following lines as per order dated 21.01.2021 in IA No.2/2020. The amount of Rs.3,150/-(Rs.3,500 + Rs.1,400 - Rs.1,750) shown in the 20th line of paragraph 12 at page 7 of the judgment is corrected as Rs.2,450/-(Rs.3,500 + 1,400 - Rs.2,450). The amount of Rs.6,80,400/-(Rs.3,150 x 12 x 18) appearing in the 7th line of paragraph 13 of the judgment is corrected as Rs.5,29,200/-(Rs.2,450 x 12 x 18). The additional dependency compensation of Rs.5,68,400/- occurring in the 11th line of paragraph 13 of the judgment is corrected as Rs.4,17,200/-. In the schedule appearing in paragraph 18, the amount of Rs.5,68,400/- against Serial No.(i) is corrected and substituted as Rs.4,17,200/- and the total amount of Rs.6,05,150/- in paragraph 18 and in the schedule is corrected and substituted as Rs.4,53,950/-. The amount of Rs.6,05,150/- appearing in the operative portion of the judgment is also corrected and substituted as Rs.4,53,950/-.