Branch Manager, Reliance General Insurance Co. Ltd. v. Anitha T.K. and Anjana Raj

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944 MACA NO. 1221 OF 2022 ``` ``` AGAINST THE AWARD DATED 08.12.2021 IN OP(MV)NO.304/2020 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA ``` ## `APPELLANT/6TH RESPONDENT:` ``` THE BRANCH MANAGER, RELIANCE GENERAL INSURANCE COMPANY LIMITED, VISHNU BUILDING, K.P. VALLON ROAD, KADAVANTHRA P.O., ERNAKULAM, KOCHI - 682 020 NOW REPRESENTED BY ITS MANAGER, LEGAL-CLAIMS, PIN – 682036 BY ADVS.P.JACOB MATHEW PREETHY R. NAIR MATHEWS JACOB (SR.) ``` ## `RESPONDENTS/PETITIONERS:` ``` 1ANITHA.T.K, AGED 48, W/O. RAJU, PAROTTIYAL HOUSE, VENDOLA, CHEERAL POST, WAYANAD DISTRICT, PIN – 673595 2ANJANA RAJ, AGED 27, S/O. RAJU SREEDHARAN, PAROTTIYAL HOUSE, VENDOLA, CHEERAL POST, WAYANAD DISTRICT., PIN – 673595 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1221/2022 -:2:- Dated this the 19[th] day of May,2022 ## **J U D G M E N T** The sixth respondent-insurer in O.P (MV)No.304/2020 on the file of the Motor Accidents Claims Tribunal, Wayanad, is the appellant. The petitioners in the claim petition are the respondents in the appeal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988(in short, ‘Act’), claiming compensation on account of the death of 'Arjun Raj'(deceased) – the son the first petitioner and the brother of the second petitioner. The petitioners have averred in the claim petition that, on 20.10.2019, while the deceased was riding his motorcycle bearing registration No.TN-38S-2747 from Pichanoor to K.G. Chavadi, another motorcycle bearing M.A.C.A.No.1221/2022 -:3:- registration No.KL-70/D-7268(offending motorcycle), ridden by its rider in a rash and negligent manner, hit the motorcycle of the deceased. The deceased and the rider of the offending motorcycle sustained fatal injuries and lost their lives. The deceased was aged 22 years at the time of the accident and was a bachelor. The deceased had passed his engineering from the JCT College of Engineering and Technology and was having a notional monthly income of Rs.15,000/-. The respondents 1 to 4 were the legal representatives of the deceased rider of the offending motorcycle. The fifth respondent was the owner and the sixth respondent was the insurer of the offending motorcycle. Hence, the petitioners claimed a compensation of Rs.79,40,000/- from the respondents, which claim was limited to Rs.40,00,000/-. 3. The respondents 1 to 5 had filed a joint written statement, disputing the accident. They contended that the accident occurred due to the M.A.C.A.No.1221/2022 -:4:- negligence of the deceased. Nonetheless, they stated that the offending motorcycle was validly insured with the sixth respondent. 4. The sixth respondent had filed a written statement, admitting that the offending motorcycle was validly insured with them. The sixth respondent disputed the locus standi of the petitioners to file the claim petition. It was also contended that, as per the scene mahazar, it was the deceased who was negligent in causing the accident. They further contended that the claim petition was bad for non-joinder of necessary parties. Hence, the sixth respondent prayed for dismissal of the claim petition. 5.. The petitioners had produced and marked Exts.A1 to A10 in evidence. The respondents did not let in any evidence. 6. The Tribunal allowed the claim petition, in part, by permitting the petitioners to recover from the sixth respondent-insurer an amount of Rs.24,00,000/- M.A.C.A.No.1221/2022 -:5:- with interest and cost. 7. Aggrieved by the allowing of the claim petition, the sixth respondent-insurer is in appeal. 8. Heard; Sri. Mathew P. Jacob, the learned Senior Counsel appearing for the appellant/insurer on the grounds for admitting the appeal. 9. The cardinal grounds of challenge in the memorandum of appeal are: - (i) the Tribunal has erred in not finding the deceased negligent in causing the accident. - (ii) the notional income of the deceased fixed by the Tribunal was excessive. - (iii) the rate of interest fixed by the Tribunal is unreasonable. ## **Ground No.(i)** 10. Admittedly, as per Ext.A5 charge sheet laid by K.G. Chavadi police in Crime No.128/2019, it was the deceased rider of the offending motorcycle who was negligent in causing the accident. The M.A.C.A.No.1221/2022 -:6:- respondents have not let in any evidence to discredit Ext.A5. 11. In **New India Assurance Co.Ltd v. Pazhaniammal** [(2011) (3) KLT 648], a Division Bench of this Court has categorically held that, as a general rule, the production of the charge-sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Act. It is further held that, the charge-sheet can be accepted as evidence of negligence against the accused driver. If any party disputes the charge-sheet, the burden of proof is on such party to adduce evidence and discredit the charge-sheet. 12. The Hon'ble Supreme Court in **Jiju Kuruvila** **v. Kunjujamma Mohan** [(2013)9 SCC 166] has held that no interference can be drawn on the basis of a scene mahazar for arriving at a finding of contributory negligence contrary to what is found in the charge sheet. M.A.C.A.No.1221/2022 -:7:- 13. Undisputedly, in the case at hand, the police have found that it was the deceased rider of the offending motorcycle who was negligent in causing the accident. The respondents have not discredited Ext.A5 charge sheet. Therefore, it is too late in the day for the appellant to now contend that the Tribunal ought to have relied on the scene mahazar and found that the deceased was negligent in causing the accident. Thus, I hold Ground No.(i) against the appellant. ## **Ground No.(i i)** 14. Ext.A10 certificate issued by the JCT College of Engineering and Technology proves that the deceased was an Engineer by profession. On the basis of Ext.A10, the Tribunal has fixed the notional monthly income of the deceased at Rs.15,000/-. 15. In a recent decision in **Basanti Devi and Another v. The New India Insurance Co.Ltd & Others** [(Civil Appeal Nos.7435-7436 of 2021 – Live Law 2021 SC 728] , the Hon'ble Supreme Court has M.A.C.A.No.1221/2022 -:8:- fixed the notional monthly income of an Engineering Graduate, who lost his life in an accident on 10.3.2011 at the age of 25 years, at Rs.20,000/-. 16. In **National Insurance Co.Ltd v. Fathimath Zuhara @ Zuhra Razak and Another** [2016 KHC 691] , a Division Bench of this Court has fixed the monthly income of an Engineering student, who lost her life in an accident on 10.09.2005, notionally at Rs.12,000/-. 17. Following the yardsticks in **Basanti Devi** and **Fathimath Zuhara** (supra) and taking into account the fact that the accident in the present case happened on 20.10.2019, I do not find any error or illegality in the Tribunal fixing the monthly income of the deceased on notional basis at Rs.15,000/-. Therefore, I answer Ground No.(ii) also against the appellant-sixth respondent/insurer. ## **Ground No.(iii)** 18. The Tribunal has directed the appellant to M.A.C.A.No.1221/2022 -:9:- pay the compensation amount with interest at the rate of 8% per annum from the date of petition till the date of realisation with proportionate cost. 19. The appellant contends that the rate of interest fixed by the Tribunal is excessive. 20. In **Kishan Gopal & Anr. v. Lala & Others** [(2014)1 SCC 244] and **Anjani Singh & Others v. Salauddi and Others** [(2014) 15 SCC 582], the Hon’ble Supreme Court has directed payment of interest at the rate of 9% per annum in motor accidents claim cases. Therefore, fixation of interest at the rate of 8% per annum by the Tribunal is justifiable. Hence, I answer Ground No.(iii) also against the appellant. 21. On a consideration of the pleadings and materials on record and the elaborate findings rendered by the Tribunal, following the principles laid down in **National Insurance Ltd. v. Company Pranay Sethi** [(2017) 16 SCC 680] and **Sarla Verma** M.A.C.A.No.1221/2022 -:10:- ## **and others v. Delhi Transport Corporation and** **others** [(2010) 2 KLT 802 (SC)], I hold that the compensation awarded by the Tribunal is reasonable and just. 22. It is to be borne in mind that, the accident happened on 20.10.2019. It is nearly three years since the petitioners have been knocking at the doors of the Tribunal, seeking compensation on account of the death of their breadwinner. It is trite, that the Tribunals/Courts are permitted to do some guess work and also exercise their discretion in awarding reasonable and just compensation, for which there cannot be formula based on any straight jacket arithmetical exactitude or precision. 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. The grounds urged in the M.A.C.A.No.1221/2022 -:11:- memorandum of appeal does not warrant the appeal to be admitted, which would only be a wastage of judicial time and harassment to the respondents. 23. The Honourable Supreme Court in **New India Assurance Co. Ltd. vs. Kiran Singh & Ors.** [2004 (AIR) SCW 4212] has deprecated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. In the result, in exercise of the powers of this Court under Order LXI Rule 11 of the Code of Civil Procedure and following the ratio decidendi in **Kiran Singh** (supra), I dismiss the appeal at the threshold. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/19.05.22 //True copy/ P.A.To Judge