Divisional Manager, Bajaj Allianz General Insurance Company Ltd. v. G.S. Archana and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY ,THE 13TH DAY OF NOVEMBER 2018 / 22ND KARTHIKA, 1940** ## **MACA.No. 281 of 2016** **AGAINST THE AWARD IN OP(MV)NO.1489/2011 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA DATED 27-05-2015** ## **APPELLANT/3RD RESPONDENT:** **THE DIVISIONAL MANAGER, BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LTD. REGIONAL OFFICE, 3RD FLOOR, FINANCE TOWER, REPRESENTED BY ITS MANAGER, KALOOR, COCHIN -682 017, ERNAKULAM.** ## **BY ADV. SRI.LAL GEORGE** ## **RESPONDENT/PETITIONERS:** **1 G.S.ARCHANA, AGED 37 YEARS, W/O.LATE ADV.N.MANOJ, P.K.HOUSE, ANANDAPPALLY P.O.,ADOOR VILLAGE, ADOOR TALUK. 691 523. 2 MEENAKSHI.M (MINOR) AGED 14 YEARS D/O.LATE ADV.N.MANOJ, P.K.HOUSE, ANANDAPPALLY P.O, ADOOR VILLAGE, ADOOR TALUK, REPRESENTED BY MOTHER AND NATURAL GUARDIAN, G.S.ARCHANA - 691 523. 3 MANIKANDAN.M. (MINOR) AGED 8 YEARS S/O.LATE ADV.N.MANOJ, P.K.HOUSE, ANANDAPPALLY P.O, ADOOR VILLAGE, ADOOR TALUK, REPRESENTED BY MOTHERAND NATURAL GUARDIAN, G.S.ARCHANA. 691 523. 4 C.S.MADHAVIKUTTY AMMA AGED 68 YEARS W/O.LATE NARENDRAN.N, P.K.HOUSE, ANANDAPPALLY P.O, ADOOR VILLAGE, ADOOR TALUK. 691 523.** MACA.No.281/2016 |1/2016|2| |---|---| |**5**|**JOHNSON JOSEPH**| ||**S/O.JOSEPH, MUTHUMARATHIL HOUSE,**| ||**PRAKKANAM P.O,**| ||**PATHANAMTHITTA (DIST). 689 643.**| |**6**|**SHIJU H**| ||**S/O.HASSAN, SHEEJA MANZIL, VETTIPPURAM,**| ||**PATHANAMTHITTA P.O. 689 643.**| ||**BY ADVS.**| ||**SRI.BENOJ C AUGUSTIN**| ||**SRI.S.SHANAVAS KHAN**| ||**SRI.NAGARAJ NARAYANAN**| ||**SRI.SAIJO HASSAN**| ||**SRI.VISHNU BHUVANENDRAN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA.No.281/2016 ## **JUDGMENT** This appeal is directed against the award dated 27.5.2015 in O.P(MV) No.1489/2011 on the files of the Motor Accident Claims Tribunal, Pathanamthitta (for short 'the Tribunal'). The appellant is the insurer of the offending vehicle, who was the 3[rd] respondent before the Tribunal. Before adverting to the contentions raised in the appeal, it is relevant to have a discussion on the facts of the case in brief. 2. On 12.5.2011 at 4.45 am, body of one Sri.Manoj was found lying by the side of Adoor-Pathanamthitta Road, with several bodily injuries. Alleging that the injuries were resulted in a motor accident, involving a Maruti Car bearing registration No.KL-03/R-2026, the survivors and dependants of the deceased Manoj had filed a claim petition as above, alleging negligence on the part of the driver of the Maruti Car and claiming for a sum of Rs.50,00,000/- as compensation. The driver, owner and insurer of the Maruti Car were arrayed as respondents 1 to 3 in the claim petition. The driver and owner remained ex-parte. The 3[rd] respondent insurer alone contested the claim petition by 4 MACA.No.281/2016 filing a written statement. The allegation that the death was resulted due to the involvement of the Maruti Car was denied. The car was alleged as planted at the influence of some political leaders. The age, occupation and income of the deceased and the quantum of compensation claimed were also disputed. 3. Before the Tribunal, the petitioners have adduced oral evidence by examining three witnesses as PWs 1 to 3 and documentary evidence as Exts.A1 to A16 and X1, X1(a) to X1(d). On the side of the 3[rd] respondent two witnesses were examined as RW1 and RW2. 4. On appreciation of the evidence on record, the Tribunal has arrived at a finding that the motor accident was occurred due to the involvement of the Maruti Car driven by its driver in a rash and negligent manner. The Tribunal has arrived at the compensation payable as Rs.53,76,000/-. Challenging the accident and also the quantum of compensation arrived at by the Tribunal, the insurer has approached this Court in the captioned appeal. 5. Sri.Lal George, the learned counsel has raised contentions that the Maruti Car was not actually involved in the accident but was planted at the political influence of the 5 MACA.No.281/2016 petitioners. According to him, a private investigation was held by the insurer in the case on hand and it is discernible from the report filed by the private investigator that the averment regarding the accident was false. According to him, as revealed from the report of the private investigator, the deceased was missing from his house on the previous night itself and lateron, his body was found lying near the road in an injured state. According to him, he was in a drunken state and in the investigation held by him, the Maruti Car was not found as involved. It is contended by the learned counsel that some heavy vehicle might have hit the person and thereby his death must have been occurred. According to the counsel such being the circumstances, the Tribunal is highly unjustified in fixing the liability upon the driver and owner of the Maruti Car and consequently the liability to indemnify them on the insurer, the appellant herein. The learned counsel has also raised an argument that the report of the private investigator was not produced before the Tribunal and at present it is produced along with the appeal memorandum. According to the learned counsel, the case if remanded to the Tribunal, an opportunity would have been obtained by the appellant to get the report of 6 MACA.No.281/2016 the private investigator produced and marked in evidence to establish the case as pleaded by him. 6. The second challenge is against the quantum of compensation awarded by the Tribunal, alleging it as excessive. According to the learned counsel, the constitutional bench of the Apex Court has specifically issued directions in **National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662** **(SC)]** to grant Rs.15,000/-, 40,000/- and 15,000/- respectively as compensation under the conventional heads of loss of estate, loss of consortium and funeral expenses and viewed in that backdrop, the amounts awarded by the Tribunal as compensation under those heads are excessive and this Court's interference is required to set those right. 7. Yet another argument was also advanced that the compensation towards loss of dependency was calculated by the Tribunal, adopting the monthly income of the deceased as Rs.30,000/-. According to the learned counsel, the deceased was a practising lawyer having only 16 years' standing at the Bar and Rs.30,000/- taken by the Tribunal as the monthly income is on the higher side. Raising contentions as above, the learned counsel canvassed for a remand of the case to the 7 MACA.No.281/2016 Tribunal for consideration afresh in the light of the evidence already available on record and those intended by him to be let in. 8. Per contra, Sri.Shiju Hassan, the learned counsel representing the claimants contended that interference with the impugned award is totally unwarranted in view of the grant of reasonable sums as compensation by the Tribunal under various heads of compensation. According to him Rs.30,000/fixed by the Tribunal as monthly income of the deceased at the relevant time of accident is a reasonable sum and not liable to be interfered with. 9. In the backdrop of the rival contentions raised by the respective counsel as above, this Court ventured to appreciate and evaluate the evidence on record. As already stated, the oral evidence of three witnesses and documentary evidence comprised of Exts.A1 to A16 and Exts.X1, X1(a) to X1(d) were available on record. The petitioners got Ext.A14 electoral ID card marked in evidence without being opposed by the opposite party, wherefrom the age of the deceased as on 1.1.2005 was established as 36 years. Therefore, the age of the deceased as on date of accident was 43 years. The Tribunal has taken the 8 MACA.No.281/2016 age of the deceased as 43 years and adopted 14 as the multiplier. PW1 is none other than the wife of the deceased. She has deposed about the occupation of her husband at the time of accident and the income he was earning monthly therefrom with clarity. PW2, a colleague of the deceased has also let in oral evidence that the deceased had sufficient practice at the Bar. PW3, the advocate clerk was examined and through him Ext.X1 and X1(a) to X1(d) were marked in evidence. Ext.X1 and X1(a) to X1(d) are daily posting diaries of the deceased maintained by him. Apart from the above, Ext.A6, a certificate issued from the Bar Association, Adoor and Ext.A15, the certificate of enrolment of the deceased were also relied on by the Tribunal while fixing the monthly income. In view of the oral as well as documentary evidence as discussed above, the Tribunal is perfectly justified in fixing the monthly income of the deceased as Rs.30,000/-. The Tribunal has added 30% of Rs.30,000/- towards future prospects and deducted 1/4[th] therefrom, being the sum, which Sri.Manoj must have been spent for his personal needs, had he not been died in the motor accident in question. With the factors available as above, the Tribunal had arrived at Rs.49,14,000/- as compensation under 9 MACA.No.281/2016 the head loss of dependency. This Court did not find any reason to interfere with the aforesaid calculation of the Tribunal and arriving at of compensation, under the head loss of dependency. The plea of the learned counsel for the appellant to interfere with the aforesaid sum is discarded as untenable. 10. The urge of the learned counsel to remit the case back to the Tribunal for enabling him to produce the private investigator's report and mark the same in documentary evidence to establish that the accident as alleged was not occurred is not liable to be entertained as it will only be a futile exercise. The report of the private investigator even if marked in evidence, will not have any relevancy at all. The report has no legal sanctity at all as the agency who had prepared it is not legally authorised to conduct investigation. Moreover, the remand is not meant for filling up the lacuna. It is settled position of law that the authority to remand the case back cannot be entertained for filling up loop holes or lacunas in the case. The pleas raised by the learned counsel are not liable to be accepted for the reasons stated. 11. The further argument was that the fixation of compensation by the Tribunal under the head funeral expenses, 10 MACA.No.281/2016 loss of consortium and loss of estate are on higher side. There is merit in the said argument and this Court is bound to modify the compensation in terms of the directives issued by the constitutional Bench of the Apex Court in **Pranay Sethi's** case cited supra. Accordingly, the compensation awarded under the conventional heads funeral expenses, loss of consortium and loss of estate respectively are modified and reduced as Rs.15,000/-, Rs.40,000/- and Rs.15,000/-. Therefore, there would be a reduction of Rs.85,000/- under the head loss of estate, Rs.60,000/- under the head loss of consortium and Rs.10,000/- under the head funeral expenses. Thus, there would be a reduction of Rs.1,55,000/- (85,000 + 60,000 + 10,000) from the total sum already found payable as compensation by the Tribunal under the respective heads. 12. It is pertinent to note from the impugned award that a sum of Rs.2,15,000/- was awarded by the Tribunal under the head loss of love and affection. In **Pranay Sethi** 's case supra, the constitutional Bench omitted to state anything about the sum payable as compensation under the head loss of love and affection. The constitutional Bench has only declared the dictum in **Rajesh and others v. Rajbir Singh and others** 11 MACA.No.281/2016 **(2013 ACJ 1403 SC)** as not a binding precedent, since that has not been taken note of the decision in **Reshma Kumari and others v. Madan Mohan and Anr.** [2013 (2) KLT 304 (SC)]. In view of the factum established from the evidence that the deceased was survived by two minor children aged 14 and 8 years respectively and the mother aged about 68 years, this Court finds every justification in awarding a sum of Rs.40,000/- each to them under the respective heads filial consortium and parental consortium. The Apex Court has maintained Rs.50,000/- per head as compensation granted by the High Court under the head loss of love and affection to two minor children of the deceased in ( **Magma General Isurance Co. Ltd v. Nanu Ram Alias Chuhru Ram & Ors.** [2018 (11) SCALE 247]). Therefore, this Court is inclined to award a sum of Rs.1,00,000/- (Rs.50,000/- each to the children) and Rs.20,000/- to the mother under the head loss of love and affection. In the re-fixation as above, Rs.2,15,000/- already awarded by the Tribunal under the head loss of love and affection will be reduced by Rs.95,000/-. Accordingly, there will be a total reduction of Rs.2,50,000/- (1,55,000 + 95,000) from the amount already awarded by the Tribunal. Therefore, the 12 MACA.No.281/2016 petitioners are entitled to get only a sum of Rs.52,46,000/[(53,76,000 + 1,20,000) - 2,50,000] as compensation. In the result, the appeal stands allowed in part. The compensation already awarded by the Tribunal is modified as above. Thus the petitioners are found entitled to get only Rs.52,46,000/- as compensation. The directions of the Tribunal in the impugned award to pay interest at the rate of 9% per annum and proportionate cost are maintained. The appellant shall deposit Rs.52,46,000/- (Rupees fifty two lakhs fourty six thousand only) with interest at the rate of 9% per annum from the date of petition till the date of realisation, within a period of three months from the date of receipt of a copy of this judgment. The parties shall bear their respective costs. ## **Sd/-** **MARY JOSEPH JUDGE** ab