Cholamandalam General Insurance Company Limited v Kalavathi and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945** **MACA NO. 263 OF 2020** **AGAINST THE ORDER/JUDGMENT OPMV 1746/2017 OF SPECIAL C SPE/CBI-I&3 ADDITIONAL DISTRICT COURT / I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/3rd RESPONDENT:** CHOLAMANDALAM GENERAL INSURANCE COMPANY LIMITED CHITTOOR ROAD, JOCHI-11, NOW REPRESENTED BY ITS DEPUTY MANAGER-CLAIMS, REGIONAL OFFICE, CHITTOOR ROAD, KOCHI-11. BY ADVS. MATHEWS JACOB (SR.) P.JACOB MATHEW ## **RESPONDENT/PETITIONER** 1 KALAVATHI AGED 67 YEARS W/O LATE GOPALAKRISHNAN, KALAPARAMBATH LEKSHOM VEEDU, ULAVAIPU P.O.THAIKKATTUSSERY, CHERTHALA, ALAPPUZHA, PIN-688 526. 2 MINI P.K, AGED 46 YEARS D/O LATE GOPALAKRISHNAN, KALAPARAMBATH LEKSHOM VEEDU, ULAVAIPU P.O.THAIKKATTUSSERY, CHERTHALA, ALAPPUZHA, PIN-688 526. 3 BEENA L.G, AGED 44 YEARS D/O LATE GOPALAKRISHNAN, KALAPARAMBATH LEKSHOM VEEDU, ULAVAIPU P.O.THAIKKATTUSSERY, CHERTHALA, ALAPPUZHA, PIN-688 526. 4 BIJU G, AGED 42 YEARS S/O LATE GOPALAKRISHNAN, KALAPARAMBATH LEKSHOM VEEDU, ULAVAIPU P.O.THAIKKATTUSSERY, CHERTHALA, ALAPPUZHA, PIN-688 526. (THE 1ST RESPONDENT IN THE ORIGINAL PETITION IS THE OWNER AND THE 2ND ## **MACA NO.263 OF 2020 and CO. No.63/2022** **==> picture [7 x 9] intentionally omitted <==** RESPONDENT IS THE RIDER OF THE OFFENDING MOTORCYCLE WHO WERE EX-PARTE BEFORE THE TRIBUNAL, IN THIS APPEAL ALSO, NO RELIEFS ARE CLAIMED AGAINST THEM AND HENCE THEY ARE NOT MADE PARTIES) BY ADVS. RIA THOMAS MARIAMMA MERCY KANJANAPILLY N.V.VINAY ## **OTHER PRESENT:** R1-R4 ADV N.V.VINAY THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 18.09.2023, ALONG WITH CO.63/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO.263 OF 2020 and CO. No.63/2022** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945 CO NO. 63 OF 2022** **AGAINST THE ORDER/JUDGMENT MACA 263/2020 OF HIGH COURT OF** ## **KERALA** ## **CROSS OBJECTOR/RESPONDENTS:** 1 KALAVATHI AGED 69 YEARS KALAPARAMBATH, LEKSHOM VEED, ULAVAIPU P.O, THAIKKATTUSSERY, CHERTHALA,ALAPPUZHA-688526, PIN - 688526 2 MINI P K AGED 48 YEARS D/O LATE GOPALAKRISHNAN, KALAPARAMBATH, LEKSHOM VEED, ULAVAIPU P.O, THAIKKATTUSSERY, CHERTHALA,ALAPPUZHA-688526, PIN - 688526 3 BEENA L G AGED 46 YEARS D/O LATE GOPALAKRISHNAN, KALAPARAMBATH, LEKSHOM VEED, ULAVAIPU P.O, THAIKKATTUSSERY, CHERTHALA,ALAPPUZHA-688526, PIN - 688526 4 BIJU G AGED 44 YEARS S/O LATE GOPALAKRISHNAN, KALAPARAMBATH, LEKSHOM VEED, ULAVAIPU P.O, THAIKKATTUSSERY, CHERTHALA,ALAPPUZHA-688526, PIN - 688526 BY ADVS. N.V.VINAY MARIAMMA MERCY KANJANAPILLY ## **RESPONDENT/APPELLANTS:** CHOLAMANDALAM GENERAL INSURANCE CO.LTD CHITTOOR ROAD COCHIN REP BY ITS DEPUTY MANAGER ## **MACA NO.263 OF 2020 and CO. No.63/2022** 4 CLAIMS, PIN - 682011 BY ADV P.JACOB MATHEW THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 18.09.2023, ALONG WITH MACA.263/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO.263 OF 2020 and CO. No.63/2022** 5 ## **JUDGMENT** This is an appeal submitted by the 3[rd] respondent/ Insurance Company in OP(MV) 1746/2017 on the files of Addl Motor Accidents Claims Tribunal, Ernakulam. 2. The claim petition was submitted by the respondents 1 to 4 herein seeking compensation for the death of one Gopalakrishnan, aged 73 years, due to the injuries sustained in a motor accident that occurred on 01.04.2017. The deceased was the husband of the 1[st] respondent and the father of the respondents 2 to 4. The accident occurred when the motorcycle ridden by the 2[nd] respondent in the claim petition hit the deceased while he was walking through the road. According to the claimants, he was aged 73 years and was working as a Coolie with a monthly income of Rs.15,000/-. The total amount of compensation claimed was Rs.8,00,000/-. 3. The appellant/Insurance Company alone contested the matter by filing a written statement wherein they admitted the coverage of the policy but disputed the liability on various **MACA NO.263 OF 2020 and CO. No.63/2022** 6 grounds. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of Exts.A1 to A5. From the side of the respondents, no evidence was adduced. After appreciating the materials placed on record, the Tribunal passed an award holding the appellant responsible to pay the compensation being the insurer of the said vehicle, and an amount of Rs.6,27,500/- was fixed as the quantum of compensation, which was directed to be deposited by the appellant/Insurance Company with interest at the rate of 8% per annum from the date of petition till realization with proportionate cost. Being aggrieved by the quantum of compensation fixed by the Tribunal, this appeal is submitted by the Insurance Company. For seeking enhancement of compensation and, the respondents have filed a cross objection as well. 5. Heard Sri. Jacob Mathew P, the learned counsel appearing for the appellant and Sri.N.V. Vinay, the learned counsel appearing for respondents. ## **MACA NO.263 OF 2020 and CO. No.63/2022** 7 6. The learned counsel for the appellant would contend that the compensation awarded under the head of loss of dependency is on the higher side. It was pointed out that, even though no evidence was adduced to substantiate the contention of the respondents that the deceased was working as a coolie, the Tribunal had taken a monthly income as Rs.12,500/-, which is on the higher side. When going by the method of calculation, in the light of the principles laid down by the Hon’ble Supreme Court, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [2011 (13) SCC 236] and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [2014 (2) SCC 735], the monthly income of the deceased has to be taken as Rs.11,000/- as the accident occurred in the year 2017. Therefore, I find some force in the contention of the learned counsel for the appellant in this regard. 7. However, the learned counsel for the respondents at this juncture pointed out that the multiplier taken by the Tribunal was only ‘3’, which was on the lower side. As per the second schedule and the principles laid down in **Sarla Verma v. Delhi** **MACA NO.263 OF 2020 and CO. No.63/2022** 8 **Transport Corporation** [2010 (2) KLT 802], the proper multiplier is ‘5’ and therefore, the same has to be accepted. In the light of the settled position of law in this regard, the contention is to be accepted, and therefore, ‘5’ is to be taken as a multiplier. 8. Another aspect to be considered in this regard is with respect to the deduction to be made towards personal expenses. In the award, the Tribunal had deducted only 1/4[th] of the income towards the personal expenses of the deceased while treating all four respondents as dependents. The specific contention put forward by the learned counsel for the appellant is that, in the light of the decision rendered by this Court in **[2017 (5) KHC 568] Sujatha P.V. v. Oriental Insurance Company Limited** , the grown up children aged more than 40 years cannot be treated as dependents for the purpose of deduction towards personal expenses. Therefore, in the light of the principles laid down in the aforesaid decision, only the 1[st] respondent can be treated as dependent and in such an event, the deduction to be made towards personal expenses is 50%. While reworking the compensation with the above revised criteria, the amount would **MACA NO.263 OF 2020 and CO. No.63/2022** 9 come to Rs.3,30,000/- (11,000x12x5x50%). The amount awarded under the said head by the Tribunal is Rs.3,37,500/- and therefore, the difference in the amount is only Rs.7,500/-, which is very meager. In such circumstances, as the excess amount awarded under this head is meager, I do not intend to interfere with the amount of compensation awarded under the head of loss of dependency. 9. When coming to the other heads, it is seen that the Tribunal has awarded an amount of Rs.90,000/- as parental consortium and a further sum of Rs.40,000/- towards loss of consortium to the 1[st] petitioner. In addition to that, a further amount of Rs.1,20,000/- has been granted towards compensation for love and affection. It is a well settled position of law as per **United India Insurance Company Ltd. v. Satinder Kaur @** **Satwinder Kaur** [(2021) 11 SCC 780] that, when compensation is awarded under the head of the loss of consortium, no further amount could be granted towards compensation for love and affection. Therefore, the total amount that can be awarded to the respondents towards loss of consortium would be 1,60,000/- **MACA NO.263 OF 2020 and CO. No.63/2022** 10 (Rs.40,000/- each) and therefore, 90,000/- would be an excess amount, and this has to be deducted. Thus, while reworking the compensation in the light of the above observations, the amount receivable by the respondents would come to Rs.5,37,500/-. Accordingly, this appeal and the cross objection are disposed of, modifying the award dated 26.08.2019 in O.P (MV) 1746 of 2017 passed by the Additional Motor Accidents Claims Tribunal, Ernakulam, by fixing the total amount of compensation as Rs.5,37,500/- (627500 – 90000) [Rupees five lakhs thirty seven thousand and five hundred only] and the appellant Insurance Company is directed to deposit the said amount along with interest at the rate as fixed by the Tribunal along with proportionate cost, within a period of three months from the date of receipt of a copy of this judgment, after adjusting the amount already deposited. Sd/- **ZIYAD RAHMAN A.A.** **JUDGE** rpk