Bharti AXA General Insurance Co. Ltd. v. Raseena and others

MACA NO. 1158 OF 2019 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** **MACA NO. 1158 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OPMV 256/2017 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** BHARTI AXA GENERAL INSURANCE CO. LTD METRO PLAZA, 2ND FLOOR, NO.162, ANNASALAI, CHENNAI, TAMILNADU, REP BY ITS ASSISTANT MANAGER LEGAL BHARTI AXA GENERAL INSURANCE CO.LTD., ERNAKULAM. BY ADV R.AJITH KUMAR (128/84) ## **RESPONDENT/S:** 1 RASEENA AGED 44 YEARS S/O.VEERANKUTTY, W/O.KHALID, PALLIKKANDY HOUSE, PUTHIYANGADI, PUTHIYANGADI AMSOM DESOM, KOZHIKODE, PIN-673021. 2 IBRAHIM AGED 22 YEARS D/O.KHALID, PALLIKKANDY HOUSE, PUTHIYANGADI, PUTHIYANGADI AMSOM DESOM, KOZHIKODE, PIN-673021. 3 MARIYATHUL KUBATHIYA,IBRAHIM AGED 21 YEARS D/O.KHALID, PALLIKKANDY HOUSE, PUTHIYANGADI, PUTHIYANGADI AMSOM DESOM, KOZHIKODE, PIN-673021 4 NABEESA AGED 76 YEARS W/O.HASSAN, M/O.KHALID, PALLIKKANDY HOUSE, PUTHIYANGADI, KOZHIKODE, PIN-673021. BY ADVS. SRI.C.KHALID MACA NO. 1158 OF 2019 2 SRI.P.V.ANOOP SRI.T.P.SAJID THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1158 OF 2019 3 ## **JUDGMENT** The appellant/insurer was the 3[rd] respondent in OP(MV) No.256/2017 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents 1 to 3 were the claimants and the 4[th] respondent in the appeal was the 4[th] respondent before the Tribunal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Khalid (deceased), the husband of the 1[st] petitioner, father of the petitioners 2 and 3 and son of the 4[th] respondent. They contended that, on 24.07.2014, while the deceased was walking along the Beach road, from Pallikandy to Koya, a car bearing registration No.KL-AT-5277, driven by the 2[nd] respondent in a rash and negligent manner, hit the deceased. The deceased succumbed to the injuries on the following day. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the car. The deceased was a fisherman and was earning a monthly income of Rs.15,000/-. The petitioners and the 4[th] respondent were the MACA NO. 1158 OF 2019 4 dependents of the deceased. Hence, the petitioners claimed a compensation of Rs.12,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent had filed a written statement admitting that the car had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the deceased. The 3[rd] respondent also disputed the age, income and occupation of the deceased. 5. The petitioners produced and marked Exts.A1 to A8 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition by permitting the petitioners to recover from the 3[rd] respondent an amount of Rs.20,75,000- with interest and proportionate cost. The compensation amount was directed to the apportioned between the petitioners and the 4[th] respondent in the ratio of 50:15:25:10. 7. Aggrieved by the allowing of the claim petition, the 3[rd] respondent is in appeal. MACA NO. 1158 OF 2019 5 8. Heard; Sri.R.Ajithkumar, the learned counsel appearing for the appellant/ 3[rd] respondent, Sri. T.P. Sajith, the learned counsel appearing for the respondents 1 to 3 and Sri.Anoop P.V., the learned counsel appearing for the 4[th] respondent, on admission of the appeal. 9. The principal grounds of challenge in the memorandum of appeal are: - (i) that the age of the deceased fixed by the Tribunal at 39 years is erroneous; - (ii) that the notional monthly income of the deceased fixed by the Tribunal at Rs.10,000/- is excessive; - (iii) that an amount of Rs.1,00,000/- awarded towards loss of love and affection and Rs.15,000/- towards - pain and sufferings by the Tribunal is impermissible in law. ## **Ground No.(i)** 10. The specific case of the petitioners in the claim petition was that the deceased was aged 39 years at the time of the accident. In order to substantiate their pleading, they had produced Ext.A6 Adhar card. Indisputably, the respondents MACA NO. 1158 OF 2019 6 have not let in any evidence. Ext.A6 categorically shows that the deceased was born in the year 1975 and the accident occurred on 24.07.2014. Therefore, the age of the deceased fixed by the Tribunal is correct. Hence, I answer Ground (i) against the appellant. ## **Ground No.(ii)** 11. The petitioners had claimed that the deceased was a fisherman by profession and was earning a monthly income of Rs.15,000/-. Nevertheless, the Tribunal fixed the notional monthly income of the deceased at Rs.10,000/-. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd** . [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 13. Following the yardstick in the above decision and as the accident in the instant case occurred in the year 2014, I do not find the notional income of the deceased fixed by the Tribunal at Rs.10,000/- to be excessive. Thus, I also hold Ground No.(ii) against the appellant. MACA NO. 1158 OF 2019 7 ## **Ground No.(iii)** 14. It is proved by Ext.A4 family membership certificate that the petitioners and 4[th] respondent are the wife, children and mother of the deceased. They are four in number. 15. In view of the law laid down in clause (viii) of paragraph 61 of **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] , the Honourable Supreme Court has held that the dependents of the deceased are entitled to compensation towards 'loss of consortium' at Rs.40,000/- each. The Tribunal has awarded an amount of Rs.1,00,000/- towards 'love and affection' and Rs.40,000/towards 'loss of consortium'. Therefore, it is only a cosmetic correction that has to be made, i.e. the petitioners and the 4[th] respondent are entitled to Rs.40,000/- each which comes to an amount of Rs.1,60,000/-. But, actually the Tribunal has only awarded an amount of Rs.1,40,000/-, under the heads 'love and affection' and 'loss of consortium'. Therefore, the amount awarded by the Tribunal under the heads 'loss of consortium' and 'loss of love and affection' is lesser than the amount ordered to be paid in **Pranay Sethi** (supra). Hence, I hold MACA NO. 1158 OF 2019 8 Ground No.(iii) also against the appellant. 16. On a consideration of the pleadings and materials on record and the elaborate findings rendered by the Tribunal, I do not find any error in the compensation arrived at by the Tribunal in the impugned award. 17. It is to be borne in mind that, the accident occurred in the year 2014 and it is seven years that the petitioners have been knocking at the doors of the Courts to realise the compensation. It is trite, that the Tribunals are permitted to do some guess work and also exercise their discretion in awarding reasonable and just compensation, for which there cannot be any straight jacket formula based on arithmetical exactitude. I find that the Tribunal has, after a threadbare analysis of the facts, judicially exercised its powers based on the provisions of the Act and the authoritative precedents of the Honourable Supreme Court, while arriving at the conclusion in the impugned award. I am convinced that there are no justifiable reasons in the memorandum of appeal warranting admission of the appeal, which would only be a wastage of judicial time and harassment to the respondents. MACA NO. 1158 OF 2019 9 18. The Honourable Supreme Court in **New India Assurance Co. Ltd. vs. Kiran Sing & Ors** . [2004 (AIR) SCW 4212] has deprecated the practice of contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. In the result, following the ratio in **Kiran Sing & Ors.** (supra) and in exercise of the powers of this Court under Order LXI Rule 11 of the Code of Civil Procedure, I hold that the appeal is devoid of any merit and does not warrant to be admitted. Resultantly, I dismiss the appeal at the threshold. Sd/- **C.S.DIAS JUDGE** rkc/10.01.22