Cholamandalam MS General Insurance Co Ltd v Syam Kumar (deceased) and others

1 MACA Nos 4435/2019 and 2182/2021 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 28[TH] DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943** ## **MACA NO. 4435 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OPMV 2238/2014 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL ,THIRUVANANTHAPURAM** ## **APPELLANT/S:** CHOLAMANDALAM MS GENERAL INSURANCE CO LTD. THIRUVANANTHAPURAM NOW REPRESENTED BY ITS DEPUTY MANAGERCLAIMS, ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD, KOCHI 11 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENT/S:** 1 SYAM KUMAR (DIED) X 2 SANGEETHA SYAM (28),W/O. LATE SYAMKUMAR, DAIVAKRIPA VEEDU, KUNNUVILA, NAGAROOR, GATEMUKKU, THIRUVANNATHAPURAM, PIN 695 601 3 ABIYA SYAM (MINOR),D/O.LATE SYAMKUMAR, DAIVAKRIPA VEEDU, KUNNUVILA, NAGAROOR, GATEMUKKU, THIRUVANNATHAPURAM, PIN 695 601 4 ABIYONA SYAM (MINOR),D/O. LATE SYAMKUMAR, DAIVAKRIPA VEEDU, KUNNUVILA, NAGAROOR, GATEMUKKU, THIRUVANNATHAPURAM, PIN 695 601 5 SHYLA,AGED 58 YEARS DAIVAKRIPA VEEDU, KUNNUVILA, NAGAROOR, GATEMUKKU, THIRUVANNATHAPURAM, PIN 695 601 BY ADVS. SRI.M.S.UNNIKRISHNAN SMT.M.ARDRA KRISHNAN SRI.RINU. S. ASWAN **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **28.09.2021 ALONG WITH MACA 2182/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA Nos 4435/2019 and 2182/2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 28[TH] DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943** ## **MACA NO. 2182 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OPMV 2238/2014 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL , THIRUVANANTHAPURAM** ## **APPELLANT/S:** 1 SANGEETHA SYAM AGED 34 YEARS W/O. LATE SYAM KUMAR, DAIVAKRIPA VEEDU, KUNNUVILA, NAGAROOR, GATEMUKKU, TRIVANDRUM, PIN - 695 601. 2 ABIYA SYAM AGED 14 YEARS MINOR, REP. BY MOTHER AND NEXT FRIEND SANGEETHA SYAM, W/O. LATE SYAM KUMAR, DAIVAKRIPA VEEDU, KUNNUVILA, NAGAROOR, GATEMUKKU, TRIVANDRUM, PIN - 695 601. 3 ABIYONA SYAM AGED 8 YEARS MINOR, REP. BY HER MOTHER AND NEXT FRIEND SANGEETHA SYAM, W/O. LATE SYAM KUMAR, DAIVAKRIPA VEEDU, KUNNUVILA, NAGAROOR, GATEMUKKU, TRIVANDRUM, PIN - 695 601. 4 SHYLA AGED 63 YEARS M/O. LATE SYAM KUMAR, DAIVAKRIPA VEEDU, KUNNUVILA, NAGAROOR, GATEMUKKU, TRIVANDRUM, PIN - 695 601. BY ADVS. RINU. S. ASWAN B.ARUN BABU ## **RESPONDENT/S:** CHOLAMANDALAM MS GENERAL INSURANCE CO LTD. REP. BY ITS MANAGER, 1ST FLOOR, SARAN CHAMBERS, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695 010. **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **28.09.2021 ALONG WITH MACA 4435/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA Nos 4435/2019 and 2182/2021 ## **C.S.DIAS, J.** **====================== MACA Nos 4435/2019 and 2182/2021 ====================== Dated this the 28[th] day of September, 2021.** ## **COMMON JUDGMENT** As these appeals arise from the award in OP(MV) 2238/2014 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram, between the same parties, they have been disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The original petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 5.7.2014. 3. It was the case of the original petitioner that, on 5.7.2014, while he was riding his motor cycle bearing 4 MACA Nos 4435/2019 and 2182/2021 registration No.KL-16/E 5111 from Vembayam to Vattappara, when he reached near Vettinadu Market, a mini bus bearing registration No.KL-21/2171 (bus) driven by the second respondent in a negligent manner came from the opposite side and hit the motor cycle. The original petitioner was thrown to a nearby pond and he sustained serious injuries. He was taken to the Medical College Hospital, Thiruvananthapuram and, thereafter, shifted to the AIMS Hospital, Ernakulam. Although the doctors tried to save his life, he succumbed to the injuries on 7.2.2015. Subsequent to his death, additional petitioners 2 to 5 got themselves impleaded in the claim petition as per the order in IA 921/2018. The second additional petitioner is the wife, additional petitioners 3 and 4 are the children and additional fifth petitioner is the mother of the original petitioner – Syam Kumar (deceased). The petitioners had averred that the 5 MACA Nos 4435/2019 and 2182/2021 deceased was an Automobile Mechanic by profession and earning a monthly income of Rs.15,000/-. The additional petitioners were the dependents of the deceased. The bus was owned by the first respondent and insured with the third respondent. Hence, the additional petitioners 2 to 5 claimed a compensation of Rs.59,35,000/- from the respondents, which was limited to Rs.50,00,000/-. 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent filed a written statement admitting that the bus had a valid insurance coverage. The third respondent denied negligence on the part of the second respondent. The income, age and occupation of the deceased was disputed and contended that the amount of compensation sought under the different heads was exorbitant and unreasonable. 6. The employer of the deceased was examined as 6 MACA Nos 4435/2019 and 2182/2021 PW1 and additional second petitioner was examined as PW2. Exts A1 to A27 were marked through them in evidence. The respondents did not let in any evidence. 7. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the additional petitioners 2 to 5 to realise from the third respondent a sum of Rs.36,86,750/- with interest at the rate of 8% per annum from the date of petition till the date of realization and proportionate costs. 8. Aggrieved by the impugned award, the third respondent – insurer has filed MACA 4435/2019 and dissatisfied with the quantum of compensation awarded by the Tribunal, the additional petitioners 2 to 5 have filed MACA 2182/2021. 9. Heard; Sri.Rinu S.Aswan, the learned counsel appearing for the appellants in MACA 7 MACA Nos 4435/2019 and 2182/2021 2182/2021/additional petitioners 2 to 5 and Sri.Mathews Jacob, the learned Senior Counsel appearing for the appellant in MACA 4435/2019/third respondent- insurer. 10. The common question that emerges for consideration in these appeals is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext A16 final report filed by the Vattappara Police in Crime No.544/2014 substantiates that the accident occurred due to the negligence of the second respondent. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the offending bus. The third respondent admitted that the bus had a valid insurance coverage and did not contend that the first respondent had violated the insurance policy conditions. Therefore, it is the third respondent 8 MACA Nos 4435/2019 and 2182/2021 who is to indemnify the liability of the first respondent arising out of the accident. ## **Death of the deceased** 12. Even though the accident occurred on 5.7.2014, the original petitioner/deceased lost his life on 7.2.2015, i.e., after 217 days after the accident. The additional petitioners 2 to 5 had produced Ext A20 death certificate to prove that the deceased lost his life on 7.2.2015. 13. Although the additional petitioners 2 to 5 had filed IA 8197/2018 before the Tribunal, to summon the Doctor who treated the deceased at AIMS Hospital, Ernakulam, the Tribunal for the reason that the additional petitioners had already produced sufficient materials to prove that the deceased lost his life on account of the accident, declined to summon the Doctor. The Tribunal accepted that the deceased had lost his life on account of the injuries that he sustained in 9 MACA Nos 4435/2019 and 2182/2021 the accident based on Ext A17 medical records, Ext A18 medical certificate and Ext A20 death certificate. 14. Neither the additional petitioners nor the respondents have not challenged the above order passed by the Tribunal. Thus, it is proved beyond any semblance of doubt that the deceased lost his life on account of the accident that happened on 5.7.2014 due to the negligence of the second respondent. Moreover, it is on record that from the date of accident till the date the deceased lost his life, he was under continuous treatment in hospital. Hence, I confirm the finding of the Tribunal that the deceased lost his life on account of the accident. Thus, I hold that the third respondent who is to indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 15. The additional petitioners had averred in the 10 MACA Nos 4435/2019 and 2182/2021 claim petition that the deceased was an Automobile Mechanic by profession and earning a monthly income of Rs.15,000/-. They had produced Ext A27 salary certificate, which was proved through PW1. It is stated in Ext A27 that the deceased was drawing a monthly salary of Rs.10,750/-. The Tribunal based on Ext A27, corroborated through PW1, fixed the monthly income of the deceased at Rs.10,750/-. Even though the additional petitioners stated that the deceased was having a monthly income of Rs.15,000/-, in view of Ext A27 salary certificate read with the evidence of PW1, I do not find any error in the fixation of the income of the deceased at Rs.10,750/-, which I confirm. ## **Multiplier** 16. The deceased was undisputedly aged 33 years on the date of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation** 11 MACA Nos 4435/2019 and 2182/2021 **[(2009) 6 SCC 121]** , the relevant multiplier is '16'. ## **Dependents of the deceased** 17. It is proved through Ext A21 to A25 certificates that the additional petitioners 2 to 5 are the wife, children and mother of the deceased, who are four in number. As the deceased was the sole breadwinner of the family, the additional petitioners 2 to 5 were the dependents of the deceased. 18. Going by the law laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi** **[(2017) 16 SCC 680]** , one-fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 19. Following the ratio in Sarla Verma and Pranay Sethi (supra), and considering the fact that the deceased was aged 33 years on the date of accident/death, I hold 12 MACA Nos 4435/2019 and 2182/2021 that the additional petitioners 2 to 5 are entitled for future prospects at 40% on the compensation for loss due to dependency. ## **Loss of dependency** 20. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs.10,750/-, the multiplier at 16, the future prospects at 40% and after deducting one-fourth of the compensation for loss of dependency towards the personal living expenses of the deceased, I confirm the compensation awarded by the Tribunal at Rs.21,67,200/- towards loss of dependency. ## **Conventional heads of claim** 21. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **Pranay Sethi** (supra) has held that the dependents of the deceased are entitled for compensation under the conventional heads viz., funeral 13 MACA Nos 4435/2019 and 2182/2021 expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. 22. In the instant case, the Tribunal has rightly awarded an amount of Rs.15,000/- each under the heads 'loss of estate' and 'funeral expenses'. However, the Tribunal has awarded only an amount of Rs.1,20,000/towards loss of consortium to the additional second petitioner. In the light of ratio laid down in the aforecited decision, I hold that the additional petitioners 2 to 5 are entitled for compensation under the head 'loss of consortium' at Rs.40,000/- each, ie., a total amount of Rs.1,60,000/-. ## **Pain and sufferings** 23. It is seen that the petitioners had claimed an amount of Rs.5,00,000/- as compensation for pain and sufferings. The Tribunal has awarded an amount of Rs.3,00,000/- as compensation under the said head. 14 MACA Nos 4435/2019 and 2182/2021 24. In paragraph 19 of **Sarla Verma** (supra), the Hon'ble Supreme Court has categorically held that no amount shall be awarded under the head 'pain and sufferings and hardships' caused to the legal heirs of the deceased. The said view has been reiterated by the Hon'ble Supreme Court in **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others-** **[(2020(3)KHC 760].** In the said circumstances, I set aside the amount of Rs.3,00,000/- awarded under the head 'compensation for pain and sufferings'. ## **Loss of earnings** 25. The petitioners had claimed an amount of Rs.1,50,000/- as compensation for loss of earnings for a period of 10 months. It is undisputed that the deceased lost his life within seven months after the accident. Therefore, necessarily, the loss of income has to be confined to seven months, while the deceased was 15 MACA Nos 4435/2019 and 2182/2021 undergoing treatment. 26. In view of the fixation of the income of the deceased at Rs.10,750/-, I hold that the additional petitioners 2 to 5 are entitled for an amount of Rs.75,250/- as compensation for loss of earnings. ## **Other heads of claim** 27. With respect to the other heads of claim, namely, transportation expenses, extra nourishment, damage to clothing medical expenses and bystander expenses, I find that the Tribunal has awarded reasonable and just compensation. 28. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I am of the firm opinion that the appellants in MACA 2182 of 2021/additional petitioners 2 to 5 are entitled for compensation as modified and re-calculated above, and given in the table 16 MACA Nos 4435/2019 and 2182/2021 ## below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Loss of earnings|1,05,350/-|75,250/-| |2|Transportation<br>expenses|35,000/-|35,000/-| |3|Extra nourishment|25,000/-|25,000/-| |4|Damage to clothing<br>and other personal<br>articles|1,000/-|1,000/-| |5|Cost of medicine|8,50,700/-|8,50,700/-| |6|Bystander expenses|52,500/-|52,500/-| |7|Compensation for pain<br>and sufferings|3,00,000/-|nil| |8|Compensation for loss<br>of future earnings and<br>dependencybenefit|21,67,200/-|21,67,200/-| |9|Compensation<br>for<br>deprival of marital<br>consortium to the wife|1,20,000/-|1,60,000/-| |10|Compensation for loss<br>of estate|15,000/-|15,000/-| |11|Funeral expenses|15,000/-|15,000/-| ||Total|36,86,750/-|33,96,650/-| ## 29. The learned counsel appearing for the 17 MACA Nos 4435/2019 and 2182/2021 appellants in MACA 2182/2021/additional petitioners 2 to 5 contended that the petitioners are entitled for interest at least @ 12% per annum on the compensation amount. He relied on the decision of the Hon'ble Supreme Court in **Puttamma vs. K.L Narayana Reddy & Another [2014 (1) KLT 738]** to canvass the position that unfettered power has been conferred on the Tribunals and Courts to fix the rate of interest, taking into consideration the rate of interest allowed by the Court in similar cases and other factors such as inflation, change in economy and policy adopted by the Reserve Bank of India from time time. He also drew analogy from the provisions of the Employees' Compensation Act wherein Courts are empowered to award interest @ 12%. He contended that in **Satinder Kaur** (supra) the Hon'ble Supreme Court has affirmed the award of interest @ 12%. Hence he prayed that the interest in 18 MACA Nos 4435/2019 and 2182/2021 this case also may be awarded at least @ 12% per annum. 30. In **Kishan Gopal and another v. Lala and others – [(2014) 1 SCC 244]** the Hon'ble Supreme Court has held that the award of interest @ 9% per annum is legally justifiable. The said course was adopted following the decision of the Hon'ble Supreme Court in **MCD v. Uphaar Tragedy Victims Association [(2011) 14 SCC 481].** The same view has been followed by the Hon'ble Supreme Court in **Anjani Singh and others vs.Salauddin and others [ (2014) 15 SCC 582]** wherein also interest has been awarded @ 9%. 31. In the light of the consistent rate of interest being awarded by the Hon'ble Supreme Court in the aforecited decisions, I am of the definite opinion that the interest in the instant case has to be fixed @ 9% per annum from the date of petition till the date of 19 MACA Nos 4435/2019 and 2182/2021 realization. 32. The learned counsel for the additional petitioners 2 to 5 also contended that the additional petitioners are entitled to 10% escalation of the compensation under the conventional heads as observed in paragraph 52 of the judgment in **Pranay Sethi** (supra). 33. On a careful reading of the ratio in the said regard, I am of the considered opinion that the escalation clause @ 10% every three years is applicable only to accidents that have taken place every three years after the judgment, which is the cause of action and not cases decided every three years after the judgment, because then it will lead to anomaly that claimants whose cases are decided on the previous day of the cut of date are not entitled, but the others are entitled to claim escalation, which will lead to an unjust discrimination. The 20 MACA Nos 4435/2019 and 2182/2021 interpretation attempted to be pressed in, is not the intention of the Hon'ble Supreme Court. Thus, I repel the said contention. In the result, the appeals are disposed of by directing the appellant in MACA 4435/2019/ third respondent – insurer to pay an amount of Rs.33,96,650/(Rupees Thirty Three Lakh Ninety Six Thousand Six Hundred and Fifty only) to the appellants in MACA 2182/2021/additional petitioners 2 to 5 with interest at the rate of 9% per annum from the date of petition till the date of deposit, and a cost of Rs.5,000/-, that is by scaling down the compensation by an amount of Rs.2,90,100/- from that is awarded by the Tribunal. The third respondent/insurer is ordered to deposit the compensation amount with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The 21 MACA Nos 4435/2019 and 2182/2021 Tribunal shall disburse the compensation amount to the additional petitioners 2 and 5 in the ratio of 40: 10, and shall deposit the shares of the additional petitioners 3 and 4, i.e., 25:25, in fixed deposit till they attain majority or otherwise ordered by the Tribunal. Sd/- sks/28.9.2021 **C.S.DIAS, JUDGE**