Cholamandalam MS General Insurance Co. Ltd. v. Muhammed Salih and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 22[ND] DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943 MACA NO. 2556 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OPMV 669/2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI, MALAPPURAM** ## **APPELLANT/S:** 1 CHOLAMANDALAM MS.GENERAL INSURANCE CO.LTD. KOCHI BRANCH, 2ND FLOOR, ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD, ERNAKULAM.P.O, NOW REPRESENTED BY ITS DEPUTY MANAGER-CLAIMS, REGIONAL OFFICE, ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD, KOCHI-682011. BY ADVS. MATHEWS JACOB (SR.) P.JACOB MATHEW ## **RESPONDENT/S:** MUHAMMED SALIH AGED 60 YEARS S/O.AHAMMEDKUTTY, THERODATHIL HOUSE, ELAYUR, IRIVETTY.P.O, MALAPPURAM DISTRICT-673639. AYISHAKUTTY, AGED 52 YEARS W/O.MUHAMMED SALIH, THERODATHIL HOUSE, ELAYUR, IRIVETTY.P.O, MALAPPURAM DISTRICT-673639. SUNEER BHANU, AGED 32 YEARS D/O.MUHAMMED SALIH, THERODATHIL HOUSE, ELAYUR, IRIVETTY.P.O, MALAPPURAM DISTRICT-673639. 2 MACA NO. 2556 OF 2021 UMAIMATH, AGED 30 YEARS D/O. MUHAMMED SALIH, THERODATHIL HOUSE, ELAYUR, IRIVETTY.P.O, MALAPPURAM DISTRICT-673639. MUHSIN, AGED 24 YEARS S/O.MOHAMMED SALIH, THERODATHIL HOUSE, ELAYUR, IRIVETTY.P.O, MALAPPURAM DISTRICT-673639. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2556 OF 2021 3 ## **`JUDGMENT`** ``` The appellant was the third respondent in O.P (M.V) No. 669 of 2019 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondents in the appeal were the petitioners before the Tribunal. The appellant has not impleaded Respondent Nos. 1 and 2 as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per the status in the claim petition. ``` ``` 2. The petitioners have filed the claim petition under Section 166 the Motor Vehicles Act, 1988, claiming compensation on account of the death of Murshid (deceased), the son of respondent Nos. 1 and 2 and the brother of respondent Nos. 3 to 5. It was their case that, on 14.02.2019, while the deceased was riding his motorcycle bearing Registration Number KL-01/BT-7506 ``` MACA NO. 2556 OF 2021 4 ``` from Elayur to Kavanur, a vehicle bearing Registration Number KL-52/N-1254 (offending vehicle) driven by the first respondent in a negligent manner hit the motorcycle and ran over the deceased. The deceased lost his life instantaneously. The deceased was a Lift Mechanic and Electrician by profession and earning a monthly income of rupees 20,000/-. The second respondent was the owner and the third respondent was the insurer of the offending vehicle. Therefore, the respondents were jointly and severally liable to pay compensation to the petitioners, which they quantified at Rs. 40,000,00/- (Rupees Forty Lakh Only). ``` `3. The respondent Nos. 1 and 2 did not contest the` `proceedings and were set` _`ex parte`_ `.` `4. The third respondent had filed a written` `statement admitting that the offending vehicle had a valid insurance coverage. However, it was stated that the accident occurred due to the negligence of the deceased.` MACA NO. 2556 OF 2021 5 ``` The third respondent also disputed the age, income and occupation of the deceased. ``` ``` 5. The petitioners produced and marked Exhibits A1 to A9 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 directing the third respondent to pay an amount of rupees 19,31,400/- (Rupees Nineteen Lakh Thirty One Thousand and Four Hundred Only) with interest at the rate of 9% per annum from the date of petition till the date of realisation and proportionate costs. ``` `7. Aggrieved by the award, the appellant/third` `respondent/Insurer filed this appeal.` `8. Heard; Sri. Mathews Jacob, the learned Senior` `Counsel appearing for the appellant/third respondent.` `9. The principal grounds of challenge in the` `memorandum of appeal are:-` MACA NO. 2556 OF 2021 6 ``` (i) The Tribunal did not accept that there was contributory negligence on the part of the deceased; ``` ``` (ii) The notional income of the deceased fixed by the Tribunal was on the higher side; ``` ``` and ``` ``` (iii) The interest awarded by the Tribunal at 9% per annum was excessive. ``` ## **`- Ground No.(i):`** ``` 10. Exhibit A4 charge sheet filed by the Areekkode police reveals that the accident occurred solely due to the negligence of the first respondent. Undisputedly, the second respondent was the owner of the offending vehicle and was vicariously liable to pay the compensation. As the third respondent was the insurer of the offending vehicle and did not allege violation of policy conditions, it is the third respondent who is to indemnify the second respondent. As the respondents ``` MACA NO. 2556 OF 2021 7 ``` have not let in any contra evidence to discredit Exhibit A4 charge, I uphold the finding of the Tribunal that the accident occurred due to the negligence of the 1[st] respondent. I repel the contention that there was contributory negligence on the part of the deceased and answer ground No.(i) against the appellant. ``` ## **`- Ground No. (ii):`** ``` 11. The appellants had claimed that the deceased was a Mechanic and Electrician by profession earning a monthly income of Rs. 20,000/-. ``` ``` 12. The Tribunal relying on the decision of the Honourable Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], fixed the notional income of the deceased at Rs. 12,000/- per month. ``` `13. The Tribunal has followed the ratio in the` MACA NO. 2556 OF 2021 8 ``` diseased at Rs. 12,000/- per month, I do not find any illegality in the course adopted by the Tribunal. Hence, I answer ground No. (ii) also against the appellant. ``` ## **`- Ground No. (iii):`** ``` 14. The Tribunal has awarded interest at the rate of 9% per annum on the compensation amount. The Hon'ble Supreme Court in Kishan Gopal and another v. Lala and others [2014 (1)SCC 244] and Anjani Singh and others v. Salaudd and others [2014 (15) SCC 582] has fixed the interest at the rate of 9% per annum in motor accident claims cases, following the ratio in MCD vs Voidva Tragedy Ltd. Association [2011(14) SCC 481]. In such circumstances, I do not find any error in the Tribunal awarding interest at the rate of 9% per annum on the compensation. Accordingly, I answer ground No. (iii) also against the appellant. ``` `15. On a comprehensive appreciation of the` `pleadings and materials on record and the elaborate` MACA NO. 2556 OF 2021 9 ``` findings rendered by the Tribunal, I do not find any error in the compensation awarded by the Tribunal, which is only just and reasonable compensation. ``` ``` 16. The Honourable Supreme Court in New Indian Assurance Company Ltd. v. Kiran Singh & Others [2004 AIR SCW 4212] has depreciated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. ``` ``` 17. It is to be borne in mind that the accident occurred on 14.02.2019 and it is nearly two and a half years, since the respondents have been knocking at the doors of the courts seeking compensation. It is trite, that the Tribunals are permitted to do some guess work and also exercise its discretion in awarding reasonable and just compensation, for which there cannot be any straght jacket formula based on arithmetic exactitude. I find that the Tribunal, after threadbare analysis of the fact, has ``` MACA NO. 2556 OF 2021 10 ``` judicially exercised its powers based on the provision of the Act and the authoritative precedents of the Honourable Supreme Court, to arrive at the conclusion in the Impugned award. I do not find any justifiable grounds in the memorandum of appeal warranting admission of the appeal, which would only be a wastage of judicial time and harassment to the respondents. ``` ``` 18. In the result, following the ratio in Kiran Singh (Supra), I hold that the appeal is devoid of any merits and does not warrant admission. ``` ``` Resultantly, I dismiss the appeal at the threshold. ``` **Sd/-** ``` C.S.DIAS ``` ``` JUDGE ``` ``` avs ```