Cholamandalam MS General Insurance Co. Ltd. v. Deepa Ravi and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** ## **WEDNESDAY,THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940** ## **MACA.No. 2 of 2013** **AGAINST THE AWARD IN O.P(MV) 544/2010 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOLLAM DATED 27-06-2012** ## **APPELLANT:3RD RESPONDENT** **CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD. THIRUVANANTHAPURAM NOW REPRESENTED BY ITS ASSISTANT MANAGER CLAIMS, ACEL ESTATE, IYYATTIL JUNCTION, CHOTTOOR ROAD, KOCHI 11** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS:PETITIONERS** - **1 DEEPA RAVI** - **W/O REVEENDRAN PILLAI, DEEPA BHAVAN, NEAR BLOCK OFFIC,E CHATHANNOOR P.O, KOLLAM 691320** - **2 ATHUL RAVI MINOR S/O REVEENDRAN PILLAI, DEEPA BHAVAN, NEAR BLOCK OFFICE CHATHANNOOR P.O, KOLLAM 691320** - **3 ATHULYA RAVI MINOR D/O REVEENDRAN PILLAI, DEEPA BHAVAN, NEAR BLOCK OFFICE CHATHANNOOR P.O, KOLLAM 691320** - **4 THANKAPPAN PILLAI** **S/O KESAVAN PILLAI, DEEPA BHAVAN, NEAR BLOCK OFFICE CHATHANNOOR P.O, KOLLAM 691320** - **5 ANANDA BHAI AMMA W/O THANKAPPAN PILLAI, DEEPA BHAVAN, NEAR BLOCK OFFIC,E CHATHANNOOR P.O, KOLLAM 691320** **BY ADVS.SMT.NIMA JACOB SRI.P.SAMSUDIN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 2 of 2013** **2** ## JUDGMENT This appeal is directed against the award dated 21.06.2012 of the Motor Accident Claims Tribunal, Kollam (for short 'the Tribunal') in OP(MV) No.544/10. The appellant is the 3[rd] respondent before the Tribunal, who is none other than the insurer of the offending vehicle involved in the accident. Three contentions are mainly taken by the learned Senior counsel for the appellant, firstly against the finding on negligence of the driver of the bus, secondly against the exorbitance in the quantum of compensation awarded by the Tribunal and thirdly against the penal interest directed as payable in case of default of the insurer to deposit the sum within the time stipulated in the award. 2. The conspectus of the facts of the case being relevant is discussed hereunder : A motor accident was occurred at 7.45 p.m on 20.12.2009 in front of the Telephone Exchange at Chathannoor in KollamThiruvananthapuram National Highway. One Mr. Raveendran Pillai was riding a Motorcycle bearing registration No.KL-2/R 5338 **MACA.No. 2 of 2013** **3** through the aforesaid road and was knocked down by a bus bearing registration No.KL-16 C 1169, that was moving behind. He was thrown on the road with serious injuries and rushed to Royal Hospital, Chathannoor. There he succumbed to the fatal injuries received in the accident. The bus was driven by the 2[nd] respondent and the accident was allegedly occurred due to rash and negligent driving by him. The bus was owned by the 1[st] respondent and was insured with the 3[rd] respondent. Claiming a sum of Rs.10,00,000/as compensation for the death of Raveendran Pillai, his wife, children and parents have filed claim petition referred to above before the Tribunal, wherein the award under challenge was passed. 3. It was pleaded in the petition that Respondents 1 to 3 are jointly and severally liable to pay the compensation. The owner and driver of the offending bus remained ex-parte before the Tribunal. The 3[rd] respondent insurer alone had contested the claim petition by disputing negligence of the driver of the bus and age, occupation and income of the deceased. The policy coverage of the offending bus with them at the relevant time was admitted. **MACA.No. 2 of 2013** **4** 4. In the trial held before the Tribunal, the wife of the deceased, Mrs.Deepa deposed as PW1. An independent occurrence witness was examined as PW2. The manager of the Bank where the deceased was maintaining an account at the relevant time was examined as PW3 and the Manager of the Kerala State Financial Enterprises was examined as PW4. Documentary evidence adduced by the petitioners consists of Exts.A1 to A13. The statement of accounts of the deceased maintained with the Bank was procured and marked in evidence as Ext.X1. The 3[rd] respondent failed to adduce evidence of any nature before the Tribunal. On appreciation of evidence, both oral as well as documentary, the Tribunal arrived at a finding that the 2[nd] respondent, the driver of the offending bus was responsible for the accident by his rash and negligent driving. The Tribunal has also arrived at Rs.4,00,000/- as compensation payable to the petitioners. Aggrieved by the quantum of compensation awarded by the Tribunal, the 3[rd] respondent insurer has approached this Court in the captioned appeal seeking for a reduction of the same by way of modification. **MACA.No. 2 of 2013** **5** 5. Sri.Mathews Jacob, the learned Senior Counsel on behalf of the appellant has contended that the accident in question was occurred due to negligence of the deceased and that is evident from Ext.A4, the report of the vehicle inspector. According to him, damages were reported on the front portion of the Motorcycle and on its basis, the Tribunal ought to have found that the accident was occurred due to negligence of Sri.Raveendran Nair, who was riding the motorcycle at the relevant time. The further contention advanced was that 30% was added to the monthly income fixed by the Tribunal in consideration of future prospects, relying on the dictum laid down by the Apex Court in **Sarala Varma v. Delhi Transport Corporation** [2010(2) KLT 802]. It is contended by the counsel that in view of **National Insurance Company Ltd v. Pranay Sethi** [2017 (4) KLT 662(SC)], rendered by the Constitution Bench of the Apex Court only 25% of the income fixed can be added in consideration of future prospects. According to the learned Senior counsel, the Tribunal went wrong in adding 30% of the monthly income fixed towards future prospects. 6. The 3[rd] contention raised by the learned counsel was that **MACA.No. 2 of 2013** **6** penal interest was awarded by the Tribunal and that will not sustain in view of the dictum laid in **United Insurance Co. Ltd v. Suvija** [2018 (1) KLT 410]. According to the learned Senior counsel, the Tribunal had directed in the impugned award that if the sum awarded as compensation is failed to be deposited within the time stipulated, the insurer is liable to pay interest at the rate of 9% per annum and in view of the dictum in **Suvija** 's case (supra), imposition of penal interest is illegal and liable to be set aside. 7. Raising the contentions as aforesaid, the learned counsel canvassed for a re-visitation of the impugned award and necessary modification in interference. _Per contra_ , learned counsel for the petitioners has contended that the Tribunal is perfectly justified in arriving at the multiplicand and calculation of compensation and interference is totally uncalled for. According to him, the finding of negligence on the part of the 2[nd] respondent is also correct and is not liable to be interfered with. 8. In the backdrop of the rival contentions, this Court is of the view that the Tribunal was erred in the matter of appreciation of evidence and calculation of compensation. It is relevant to notice **MACA.No. 2 of 2013** **7** that the Tribunal had fixed the responsibility of the accident upon the 2[nd] respondent purely on the basis of Ext.A7. Ext.A7, a copy of the report of the Vehicle Inspector. In Ext.A7 damages were reported on the back portion of the motorcycle. But serious damages were reported on the front side of the vehicle. Exts.A1, A2 and A6, copies respectively of the FIR, Final Report and the vehicle mahazar are available in evidence in the case on hand. It is pertinent to note from the aforesaid documents that the accident was occurred due to rash and negligent driving of the stage carriage bearing registration No. No.KL-16 C 1169 by its driver. The driver of the said vehicle was arrayed as 2[nd] respondent in the claim petition filed before the Tribunal. Apart from all the above, the evidence of an ocular witness is also available on record as PW2. PW2 has spoken categorically that the accident was caused on account of negligence of 2[nd] respondent. The oral evidence so tendered by PW2 was uncontroverted. The documentary evidence as aforesaid were also brought on record without any resistance being tendered by the appellant. Therefore, the appellant was unsuccessful in controverting the oral evidence of PW2 as well as **MACA.No. 2 of 2013** **8** the documentary evidence which consists of Exts.A1, A2 and A6 strictly pointing at negligence on the part of the driver of the bus, who is none other than the 2[nd] respondent in the claim petition. The finding that the 2[nd] respondent was liable for the accident was arrived at by the Tribunal based on cogent and reliable evidence as discussed above and this Court finds no justification to reverse that. The contention raised by the learned Senior counsel for the appellant seeking for a reversal of the said finding, being totally untenable is discarded and the finding is not interfered with. 9. Coming to the challenge against grant of compensation by the Tribunal on the higher side, it is relevant to notice that 30% was added to the monthly income fixed by the Tribunal, in consideration of the future prospects of the deceased. It is true that in **Sarala Varma** 's case (supra) in the case of self employed persons 30% was directed by the Apex Court to be added to the monthly income fixed in consideration of future prospects. But in **Pranay Sethi** 's case (supra), there was strict direction to consider only 25% addition to the monthly income fixed, towards future prospects in the case of self employed persons. Therefore, this **MACA.No. 2 of 2013** **9** Court has to follow the latter direction. 10. In a reconsideration in the light of the dictum as aforesaid, addition of 30% to the monthly income towards future prospects is totally erroneous. In the aforesaid circumstances, this Court is inclined to interfere with the addition of 30% to the monthly income fixed. In view of **Pranay Sethi** 's case (supra), this Court is justified in taking 25% towards future prospects. Therefore, there will be a reduction of the quantum of compensation already awarded by the Tribunal. In the calculation made by adding 25% to the monthly income fixed in consideration of future prospects the multiplicand will be Rs.75,000/- (6,250 x 12). Since the deceased was survived by five dependents, 1/4[th] of the amount needs to be deducted from the annual income of Rs.75,000/- to arrive at the multiplicand of Rs.56,250/-. The multiplier of 14 adopted by the Tribunal being correct, is not interferred with. Therefore, a sum of Rs.7,87,500/- [((6,250 x 12) -1/4[th] ) x 14] is arrived at as compensation payable for loss of dependency. The compensation awarded under other heads are maintained. When compensation is arrived at in the above manner, **MACA.No. 2 of 2013** **10** there will be a reduction of Rs.31,500/- (8,19,000 - 7,87,50) from the total compensation granted by the Tribunal as per the impugned award. In the re-fixation of compensation the appellants are found entitled to get a total sum of Rs.8,42,500/-(7,87,500 + 10,000 + 15,000 + 10,000 + 10,000 + 10,000) as compensation. 11. In the impugned award the insurer was directed to pay penal interest at the rate of 9% per annum on deposit of the amount being defaulted within the stipulated time. In view of **Suvija** 's case supra, the award of penal interest for defaulted payment being illegal, the same is set aside. In the result, the appeal stands allowed. The appellants are entitled to get a total sum of **Rs.8,42,500/- (Rupees eight lakhs fourty two thousand five hundred only)** as compensation with interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. It is submitted by the learned counsel that 70% of the award amount is already deposited. Therefore, the 3[rd] respondent shall deposit the remaining sum with interest at the rate of 8% per annum from the date of the petition till the date of realisation within a period of two **MACA.No. 2 of 2013** **11** months from the date of receipt of a copy of this judgment. Sd/- **MARY JOSEPH, JUDGE** **ttb**