Cholamandalalam MS General Insurance Company Limited v. Rajan, Vasudha and Renju Raj

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 ``` ``` MACA NO. 364 OF 2018 ``` ``` AGAINST THE AWARD IN OPMV 599/2013 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL,PATHANAMTHITTA/ I ADDL. M.A.C.T. ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, KOTTAYAM, NOW REPRESENTED BY ITS DEPUTY MANAGER-CLAIMS, ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD, KOCHI – 11. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS/PETITIONERS:`** ``` 1RAJAN S/O.DAIVATHAN, RENJU BHAVAN, THURAYOOR SOUTH P.O., MANJALI, KADAMBANADU, ADOOR, PIN - 691 552. 2VASUDHA W/O.RAJAN, RENJU BHAVAN, THURAYOOR SOUTH P.O., MANJALI, KADAMBANADU, ADOOR, PIN - 691 552. 3RENJU RAJ S/O.RAJAN, RENJU BHAVAN, THURAYOOR SOUTH P.O., MANJALI, KADAMBANADU, ADOOR, PIN - 691 552. ``` ``` BY ADVS. SRI.RENJIT GEORGE SRI.K.SHAJ ``` ``` THIS MACA HAVING COME UP FOR ADMISSION ON 09.03.2023, ALONG WITH CO.109/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.364/2018 & C.O.109/2021 ``` 2 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 CO NO. 109 OF 2021 ``` ``` IN MACA 364/2018 OF HIGH COURT OF KERALA ``` ## **`CROSS OBJECTORS/RESPONDENTS/PETITIONERS:`** ``` 1RAJAN AGED 60 YEARS, S/O.DAIVATHAN, RENJU BHAVAN, THUVAYOOR SOUTH P.O., MANJALI, KADAMBANADU, ADOOR, PATHANAMTHITTA DISTRICT - 691 552. ``` ``` 2VASUDHA AGED 50 YEARS, W/O.RAJAN, RENJU BHAVAN, THUVAYOOR SOUTH P.O., MANJALI, KADAMBANADU, ADOOR, PATHANAMTHITTA DISTRICT - 691 552. ``` ``` 3RENJU RAJ AGED 31 YEARS,S/O.RAJAN, RENJU BHAVAN, THUVAYOOR SOUTH P.O., MANJALI, KADAMBANADU, ADOOR, PATHANAMTHITTA DISTRICT - 691 552. ``` ``` BY ADV K.SHAJ ``` ## **`RESPONDENT/APPELLANT/3RD RESPONDENT :`** ``` CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS DEPUTY MANAGER-CLAIMS, ACEL ESTATE, CHITTOOR ROAD, KOCHI, ERNAKULAM DISTRICT - 682 011. ``` ``` BY ADV P.JACOB MATHEW ``` ``` THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 09.03.2023, ALONG WITH MACA.364/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.364/2018 & C.O.109/2021 ``` 3 ## **SOPHY THOMAS, J** ----------------------------------------------- ## M.A.C.A No. 364 of 2018 and Cross Objection No.109 of 2021 -----------------------------------------------Dated this the 9[th] day of March, 2023 ## J U D G M E N T The 3[rd] respondent/insurer in O.P(MV) No.599 of 2013 on the file of Motor Accidents Claims Tribunal-I, Pathanamthitta, is the appellant herein challenging the Award, as excessive in nature, and the claimants in that O.P, is assailing the very same award by way of Cross Objection No.109 of 2021, on the ground of inadequacy of compensation. 2. On 23.1.2013, while Sri. Sanju Raj, a 22 year old Sales Executive was travellig in his Scooter, KL-30/B -1534 van driven by the 1[st] respondent in a rash and negligent manner, dashed against his Scooter and he was thrown down and he sustained serious injuries. Later he succumbed to injuries at hospital on 6.2.2013. His legal heirs approached the Tribunal claiming compensation of Rs.43,00,000/-, and the Tribunal awarded Rs.23,92,716/-. ``` MACA No.364/2018 & C.O.109/2021 ``` 4 3. 1[st] respondent was the driver, 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the offending van. Respondents 1 and 2 remained _ex_ - _parte_ . The accident, injuries and the policy of the offending vehicle are not disputed by the 3[rd] respondent. 4. Before the Tribunal, PW1 was examined and Exhibits A1 to A21 were marked. 5. The 3[rd] respondent/insurer has preferred the appeal on the ground that the compensation awarded by the Tribunal was excessive, and there were duplication of compensation awarded under various heads. According to them, the Tribunal awarded compensation for loss of life amounting to Rs.15,12,216/-, but again awarded Rs.2,50,000/- as compensation for loss of dependency. Moreover, the compensation awarded towards funeral expenses was Rs.25,000/-, though the amount eligible was only Rs.15,000/-. Towards love and affection also, the compensation awarded exceeds the eligible amount. 6. The Cross Objectors/claimants would submit that the deceased was having VHSE certification after completing SSLC and he was qualified for ‘on the job training’ at Titanium Dioxide ``` MACA No.364/2018 & C.O.109/2021 ``` 5 Pigment Unit of the Kerala Minerals & Metals Ltd. After completing VHSE certification, he was a Technical Apprentice with the VSSC (ISRO), Thiruvananthapuram for a period of one year from 17.10.2011 to 16.10.2012. Exhibit A18 Apprenticeship Certificate was produced to substantiate that fact. Moreover, at the time of accident, he was selected as a qualified candidate for the post of Sales Executive at Rasheed Auto Palace, Parakode, with a basic salary of 15,000/- per month. PW1 employer was examined to prove his employment as Sales Executive, and Exhibit A21 certificate was produced to prove his monthly income @ Rs.15,000/-. But learned Tribunal found that, the evidence adduced by PW1 was not reliable as such, and monthly income stated in Exhibit A21 was not accepted. Anyhow, the deceased was a 22 year old man having Trade Certificate under the State Board of Higher Secondary Examination with Office Secretaryship as specialisation. Exhibit A20, certificate of proficiency would show that he had undergone apprenticeship training at Vikram Sarabhai Space Centre (VSSC), Thiruvananthapuram from 17.10.2011 to 16.10.2012. Considering these aspects, this court is inclined to enhance and ``` MACA No.364/2018 & C.O.109/2021 ``` 6 fix his notional income at Rs.10,500/- per month. Since he was aged only 22 he was eligible to get 40% addition towards future prospects. So his monthly income could have been fixed at Rs.14,700/- (10,500+ 40%). Since he was a bachelor, 50% has to be deducted for his personal expenses. So his monthly income for assessing compensation for loss of dependency could have been fixed at Rs.7,350/- (14700x50%). The multiplier applicable is 18. So the loss of dependency could be assessed as Rs.15,87,600/- (7350x12x18). Since the Tribunal already Awarded Rs.15,12,216/-, the balance entitled is, Rs.75,384/-. 7. Towards funeral expenses, the Tribunal awarded Rs.25,000/-, but the eligible amount was only Rs.15,000/-. So Rs.10,000/- is liable to be deducted from the head funeral expenses. 8. Towards, Pain and suffering, the Tribunal awarded Rs.1,00,000/-. This being a death case, the legal heirs were not eligible to get compensation under the head pain and suffering, which was a personal claim of the deceased. So that amount is liable to be deducted from the compensation amount. 9. Towards loss of dependency, the learned Tribunal ``` MACA No.364/2018 & C.O.109/2021 ``` 7 awarded Rs. 2,50,000/- in addition to the amount awarded under loss of life. So that amount also is liable to be deducted. 10. Under the head, loss of love and affection, the Tribunal awarded Rs.50,000/-. The respondents herein are the parents and brother of the deceased. The parents are eligible to get loss of consortium @ Rs.40,000/- each, amounting to Rs.80,000/- in total. So the respondents are eligible to get the difference of Rs.30,000/-. 11. Towards loss of estate, the Tribunal did not award any amount. Going by the decision in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , respondents are entitled to get compensation of Rs.15,000/- and so they are eligible to get that amount. 12. From the foregoing discussion, a total amount of Rs.3,60,000/- is liable to be deducted from the Award amount, whereas an amount of Rs.1,20,384/- is to be added as enhanced compensation to the respondents on allowing the Cross Objection. The difference will come to Rs.2,39,616/-. ``` MACA No.364/2018 & C.O.109/2021 ``` 8 |Head of claim<br>(1)|Amount<br>awarded by<br>the Tribunal<br>(2)|Amount<br>awarded<br>in appeal<br>(3)|Amount<br>deducted in<br>appeal<br>(4)|Diference to be<br>drawn as<br>enhanced<br>compensation<br>(5)| |---|---|---|---|---| |Loss of<br>Life|Rs.15,12,216/-|Rs.15,87,600/<br>-||Rs.75,384| |Funeral<br>Expenses|Rs.25,000/-|Rs.15,000/-|Rs.10,000/-|-| |Pain<br>and<br>suferings|Rs.1,00,000/-|-|Rs.1,00,000/-|-| |Loss of<br>dependency|Rs.2,50,000/-|-|Rs.2,50,000/-|-| |Loss of Love<br>and afection &<br>loss<br>of<br>consortium|Rs.50,000/-|Rs.80,000/-||Rs.30,000/-| |Loss of estate|-|Rs.15,000/-||Rs.15,000/-| |Total|||Rs.3,60,000/-|Rs.1,20,384/-| 13. In the result, the appeal as well as the cross objection are allowed to the extent shown above and the appellant is entitled to deduct Rs.2,39,616/- (Rs.3,60,000-1,20,384)from the total amount awarded by the Tribunal. 14. It is submitted from the Bar that the appellant has already deposited Rs.15,00,000/- before the Tribunal while depositing the balance, the appellant can deduct Rs.2,39,616/and its interest from the award amount payable to the respondent. The appellant is directed to deposit the balance amount in the Bank Account of the respondents in the ratio ``` MACA No.364/2018 & C.O.109/2021 ``` 9 45:45:10 with interest @ 9% per annum from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/ 2016 dated 07/11/2019 after deducting the liabilities, if any, of the respondents towards Tax, balance court fee and legal benefit fund. No order as to costs. Sd/- **SOPHY THOMAS** , **JUDGE** sou.