IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 MACA.No. 31 of 2006(A) ---------------------- ( OP(MV).1068/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR) ... APPELLANT/3RD RESPONDENT: ------------------------------------ THE NEW INDIA ASSURANCE COMPANY LIMITED, VADAKKANCHERRY ROAD, KUNNAMKULAM, REP. BY ITS ASSISTANT ADMINISTRATIVE OFFICER. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN RESPONDENTS/PETITIONERS AND RESPONDENTS 1 AND 2: ------------------------------------------------------------------ 1. MINI SATHEESAN, W/O. SATHEESAN, CHITHRATHIL HOUSE, NEAR AKAVOOR H.S., SREEMOOLANAGARAM. 2. SARANYA, D/O. LATE SATHEESAN, CHITHRATHIL HOUSE, NEAR AKAVOOR H.S., SREEMOOLANAGARAM. 3. PARUKUTTYAMMA, M/O. LATE SATHEESAN, CHITHRATHIL HOUSE, NEAR AKAVOOR H.S., SREEMOOLANAGARAM. 4. C.T. ANTONY, CHAKKALAKKAL HOUSE, MELEPALLIPPURAM P.O. 5. RADHAKRISHNAN, S/O. THANKAPPAN, VALIYAPARAMBIL VEETTIL, MANAMCHERRYKUNNU KARA, PUTHENVEETTILKARA. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ............................................................................... M.A.C.A. No. 31 OF 2006 ......................................................................... Dated this the 15th December, 2009 J U D G M E N T P.R. Raman, J: The appellant is the insurer of the vehicle, who contested the claim petition, after being permitted under Section 170 of the M.V. Act. The respondents Nos. 1 to 3 herein as petitioners claimed compensation for the death of Satheesan, which happened in a motor accident on 05.05.1996. It was their case that while the deceased was travelling in an Autorickshaw bearing No.KL-8C-6846 from Puthenvelikkara-Mala road, driven by the second respondent in the claim petition in a rash and negligent manner, when it reached at Mannamcherikkunnu without reducing the speed, the driver applied sudden brake to avoid fall in a gutter and as a result of which the autorickshaw turned turtled down and thereby the deceased sustained severe injuries and later succumbed to death on 16.05.1996 while undergoing treatment at the West Fort Hospital, Thrissur. The accident was stated as caused because of negligence on the part of the second respondent. The first respondent was the owner of autorickshaw, which was covered by the Insurance Policy issued M.A.C.A. No. 31 OF 2006 2 by the third respondent. Hence all of them were jointly and severally liable to compensate the petitioners, it was contended. The deceased was working as a Fitter of lift in Kone Elevators. As a result of the death of the deceased, the family suffered mental agony, loss of dependency, loss of security etc. An amount of Rs. 4,93,000/- was claimed by way of compensation. 2. The owner and driver remained ex parte. The third respondent/Insurer denied the accident as arising out of any negligence on the part of the autorickshaw driver. According to them, at the relevant time, the second respondent was the owner cum possessor of the vehicle, who purchased the same from the first respondent as per the sale agreement and that since the ownership was already transferred, there is no privity of contract between the second and third respondents and hence they are not liable to indemnify the second respondent. But they admitted the policy in respect of the vehicle issued in favor of the first respondent. They also contended that the compensation claimed was also exorbitant. 3. The Tribunal also framed issues arising out of the M.A.C.A. No. 31 OF 2006 3 pleadings in the case. The Tribunal considered the issue as to whether the accident was due to rash and negligent driving of the autorickshaw driver. The accident was not disputed. To prove negligence on the part of the second respondent, oral as well as documentary evidence was adduced. The first petitioner, who is the wife of the deceased was examined as P.W.1. She was also a co-passenger with her husband and child in the autorickshaw and therefore an ocular witness. She deposed in support of the averments in the petition. The police has also registered a crime against the second respondent. Ext.A1 is the copy of the FIR and Ext.A4 is the charge sheet, which also show that the negligence was on the part of the second respondent. In the light of the evidence adduced and in the absence of any contra evidence, the Tribunal rightly held that the accident occurred was as a result of negligent driving of the autorickshaw driver. 4. The deceased, at the relevant time, was drawing a monthly income of Rs. 3654/- and he was only 36 years of age. Considering his position and long number of years ahead during M.A.C.A. No. 31 OF 2006 4 which time, he would have normally continued in service upto the normal age of superannuation, it is only reasonable to expect further employment prospects. Ext.A9 is the copy of the S.S.L.C Book to prove his date of birth. The court below found that going by the date of birth, his age was 37 at the time of the accident. Ext. A8 salary certificate showed that he was paid salary of Rs.3654/-. Besides salary, he was also eligible for getting P.F., gratuity, bonus etc. as per the Company Rules. Ext.X1 is the statement showing Rs.2625/- as the net amount payable for the month of April, after deduction of Rs.1632.35/-. P.W.2, who was the Manager of the Company and the employer of the deceased identified Ext.A8. The Tribunal after referring to the case materials on record, observed that in the normal course, a person like the deceased, who had bright prospects in future could normally expect further promotions and better salary by way of revision by the time he reaches the normal age of retirement and the actual figure, taking into such contingency, cannot be ascertained with any mathematical precision. Though it was contended that the deceased would have drawn a monthly M.A.C.A. No. 31 OF 2006 5 salary of Rs .7000/-, (if he was alive), since that was not proved, the Tribunal did not accept the same. However, taking into consideration the imponderables and risk factors and also taking into consideration the existence of the compnay, the income was estimated at Rs.3654/-. Deducting 1/3rd from the estimated monthly income as his personal expense, the balance would come to Rs.2436/-, which was taken as the contribution made by him to the family. Considering his age, '16' was adopted as the multiplier and compensation was worked out at Rs. 467712/-, (taking Rs.2436/- as the multiplicand), towards 'loss of dependency'. Compensation was awarded under other heads also. A total sum of Rs. 540712/- was thus awarded with interest at the rate of 9% per annum and the Insurance Company was made liable to indemnify the second respondent. 5. The learned Counsel appearing for the appellant/Insurance Company mainly argued two points before us. They are the following: (i) It is the gross salary that has been taken by the Tribunal instead of the net salary payable. He M.A.C.A. No. 31 OF 2006 6 placed reliance on the decision of the Apex Court in Asha and other vs. United India Insurance Co. Ltd and another (2008(2) SCC 774 ). (ii) It was contended that the autorickshaw driver did not have the valid licence and despite filing the petition I.A.No. 61 of 2003 to cause production of the said driving licence, the driver as well as the owner remained ex parte and did not produce any certificate. Therefore, an adverse inference could have been drawn against the driver, in which case, it will amount to violation of policy conditions absolving the appellant from paying any compensation under the policy of insurance as it is clear violation of the policy conditions . 6. Though notice was issued by this Court to all the respondents herein and service is complete as per the endorsement made by the Registry, none has entered appearance. Further at the time of admitting the appeal, an interim stay was granted on condition that the appellant M.A.C.A. No. 31 OF 2006 7 deposited a sum of Rs. Four lakhs before the Tribunal. Normally this would have alerted the respondents about the pendency of the appeal. But we did not get the benefit of hearing the respondents. Therefore we scanned through the records made available to us by the learned counsel appearing for the appellants. 7. Regarding the first contention that only the net salary ought to have been taken, we find that so far as the the actual deduction, if any, made from the salary was statutory deduction, certainly in no way could be considered as part of the income spent for the family. In a case where deductions are made at source from the salary of an employee, the real question would be the following:“What is the nature of the deductions made”?. If they are statutory, viz., either by way of tax payable or by way of contribution made to the Public Provident Fund and likewise, certainly those amounts are to be deducted from the salary. To ascertain what is the actual income available for being spent for the family, no attempt had been made to show that the deductions made as such was towards any such statutory M.A.C.A. No. 31 OF 2006 8 liability, which is a basic factor requires to be proved, before accepting the argument that the deduction made from the salary is not to be included for the purpose of computation of dependency factor. However, the Tribunal has given very valid reason while fixing the income at Rs. 3654/-. Even if the net salary is taken, the future prospects of the employee, the revision in wages etc. are matters which one will have to be estimated and add on to the possible amount which he would have received notionally, for the purpose of fixation of his income. It is therefore, the Tribunal had taken into account these eventualities, but at the same time giving due consideration to the imponderables and risk factors also, before fixing the income of the deceased at Rs.3654/-. Thereafter 1/3rd was deducted and the component available as multiplicand was Rs.2456/-. He had a family consisting of his wife, daughter and mother. Taking into consideration all such factors into consideration we are unable to accept the argument of the learned Counsel and we find that the income taken by the court below/Tribunal for calculating the dependency benefit is not in M.A.C.A. No. 31 OF 2006 9 any way excessive. We therefore reject this plea. 7. Coming to the second point regarding the absence of driving licence by the driver, a specific plea has been raised in the written statement of the appellant, which however was not noticed by the court below and no issue as such was raised. But, it is seen that on behalf of the appellant, a petition was moved for production of the licence. Therefore, it is evident that the appellant had not only raised a plea, but also had taken necessary follow up steps for production of the licence. Therefore, in the said circumstance, the Tribunal ought to have considered the said issue before fastening the liability on the appellant to indemnify the owner of the vehicle. Further, the deceased was only a passenger in the autorickshaw along with his family members. Therefore, they should be treated as third parties, in which event, the liability has to be met at the first instance by the Insurance Company. In the above factual situation, an opportunity is granted to the appellant to establish his case, by taking such further steps to show that the driver had no valid driving licence at the time of the accident. The M.A.C.A. No. 31 OF 2006 10 Tribunal will raise the said issue and enter into a finding. In case it is found that there was no valid licence at the time of the accident, consequentially, the Insurance Company will have the right to recover it from the owner. 8. In the result, the appeal is partly allowed by way of remand to consider as to whether there was valid licence at the time of the accident and based on the finding, that may be arrived at, mould their relief accordingly. Since the respondent did not choose to enter appearance despite notice was issued, fresh notice be served on the respondents and proceed in accordance with law. A copy of this order be forwarded to the Tribunal for taking such follow up steps, including issuance of notice to the parties. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk