Elamma and others v. ICICI Lombard General Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945 MACA NO. 1502 OF 2015 ``` ``` AGAINST THE AWARD DATED 29.11.2014 IN OP(MV) 1257/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR ``` ## **`APPELLANT/PETITIONER IN O.P.(M.V) 1257/2011:`** ``` 1ELAMMA AGED 76 YEARS W/O.GEEVARGHESE,KOORAN HOUSE, KARUKUKUTTY P.O., ANGAMALY 683 576 2ANNAMMA AGED 65 YEARS W/O.PAULOSE, MANIYANPARA HOUSE, ALATTUCHIRA PO, PERUMBAVOOR 683 572 3THANKACHAN AGED 53 YEARS S/O. MATHAI, CHERAPRAMBAN HOUSE, PULIYANAM P.O., ANGAMALY 683 572 4LISSY AGED 51 YEARS W/O.JOSEPH, PALLIPADAN HOUSE, KARUKUTTY PO, ANGAMALY 683 576 5SHAJU AGED 48 YEARS CHERAPARAMBIL HOUSE, KUTHUKUZHY P.O., KOTHAMANGALAM 686 691 6SABU AGED 46 YEARS S/O.KURIYAKOSE, CHERAPARAMBIL HOUSE, KUTHUKUZHY PO, ANGAMALY 683 576 ``` ``` 7JOLLY AGED 43 YEARS S/O.JOHNSON, PALLIPARAMBIL HOUSE, EZHATTUMUGHAN P.O., ANGAMALY 683 577 ``` ``` BY ADVS. SRI.REJI GEORGE SMT.ANUPAMA JOHNY ``` ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 2 ``` ## **`RESPONDENT/RESPONDENT NO.3 IN OP(M.V) 1257/2011:`** ``` ICICI LOMBARD GENERAL INSURANCE ZENITH HOUSE, KESHAVARAO KHADE MARGE, MAHALAXMI, MUMBAI 400034 ``` ``` BY ADVS. SRI.R.AJITH KUMAR (128/84) SMT.LATHA SUSAN CHERIAN SRI.GEORGE A.CHERIAN(K/611/2014) SRI.GEORGE CHERIAN (SR.)(G-81) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2023, ALONG WITH MACA.1942/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 3 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH ``` ## **`AGRAHAYANA, 1945`** ## **`MACA NO. 1942 OF 2015`** ``` AGAINST THE AWARD DATED 29.11.2014 IN OP(MV) 1257/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` M/S.ICICI LOMBARD GENERAL INSURANCE CO.LTD ZENITH HOUSE, KESHAVARAO KHADE MARG, MAHALAXMI, MUMBAI-400 034, REPRESENTED BY ITS MANAGER LEGAL ``` ``` BY ADVS. SRI.R.AJITH KUMAR (128/84) LATHA SUSAN CHERIAN GEORGE A.CHERIAN(K/611/2014) GEORGE CHERIAN (SR.)(G-81) ``` ## **`RESPONDENTS/CLAIMANTS:`** ``` 1ELAMMA W/O.GEEVARGHESE, KOORAN HOUSE, KARUKUTTY P.O., ANGAMALY-683 576. ``` ``` 2ANNAMMA W/O.PAULOSE, MANIYAMPARA HOUSE, ALATTUCHIRA P.O., PERUMBAVOOR-683 511. ``` ``` 3THANKACHAN S/O.MATHAI,CHERAPARAMBAN HOUSE, PULIYANAM P.O., ANGAMALY-683 572. ``` ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 4 ``` - `4 LISSY W/O.JOSEPH, PALLIPADAN HOUSE, KARUKUTTY P.O., ANGAMALY-683 576.` - `5 SHAJU CHERAPPARAMBIL HOUSE, KUTHUKUZHY P.O., KOTHAMANGALAM-686 691.` - `6 SABU S/O.KURIAKOSE, ,CHERAPARAMBAN HOUSE, KARUKUTTY P.O., ANGAMALY-683 576.` - `7 JOLLY W/O.JOHNSON, PALLIPARAMBIL HOUSE, EZHATTUMUGHAM P.O., ANGAMALY-683 577.` ``` BY ADVS. SMT.ANUPAMA JOHNY SRI.REJI GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2023, ALONG WITH MACA.1502/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 5 ``` ## **`MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015`** ## **`JUDGMENT`** ## **`[MACA Nos.1502/2015, 1942/2015]`** Both these appeals arose from O.P.(M.V.) No.1257/2011 on the files of the Motor Accident Claims Tribunal, Perumbavoor which was filed by the petitioners, total seven in number, who are the appellants in M.A.C.A. No.1502/2015. The said claim petition was filed seeking compensation for the death of one Mariyamma due to the injuries sustained in a motor accident that occurred on 19.09.2011. Claimants Nos.1 and 2 are the sisters of the deceased. The remaining claimants are the nephews and nieces of the said Mariyamma. 2. The accident occurred when a car bearing Registration No.KL-32/C 300 driven by the 2[nd] respondent in the claim petition, hit her, thereby causing injuries. She died due to the injuries sustained in the said accident. The 1[st] respondent in the claim petition was the owner of the car and it was insured with the 3[rd] respondent therein, the appellant in M.A.C.A. No.1942/2015. 3. According to the claimants, the deceased was aged 52 years and was a coolie with a monthly income of Rs.8,000/-. ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 6 ``` The 3[rd] respondent/Insurance Company in the claim petition alone contested the matter by filing a written statement. Even though they admitted the coverage of policy for the said vehicle, they disputed the liability on various grounds. It was specifically contended that the deceased was a spinster living alone in a house. The 1[st] and 2[nd] claimants are elder married sisters of the deceased and the claimants 3 to 7 are grown-up married sons and daughters of the deceased brothers of the said Mariyamma. So, they specifically denied the dependency of the claimants upon the deceased. The dismissal of the claim petition was sought in such circumstances. 4. The evidence in this case consists of Exts.A1 to A8 from the side of the claimants and the copy of the insurance policy was marked as Ext.B1 from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the car and being the insurer of the said vehicle, the 3rd respondent in the claim petition was held liable to pay the compensation. As the quantum of compensation, Rs.4,73,000/- was fixed, and the said ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 7 ``` amount was directed to be deposited by the 3rd respondent in the claim petition, with interest @ 8% per annum from the date of petition till realization. M.A.C.A. No.1502/2015 is filed by the claimants seeking enhancement of compensation, whereas M.A.C.A. No.1942/2015 is filed by the 3rd respondent Insurance Company in the claim petition challenging the quantum of compensation. 5. Heard Smt.Anupama Johny, learned counsel appearing for the claimants and Sri.George Cherian (Thiruvalla), learned senior counsel appearing for the 3[rd] respondent Insurance Company in the claim petition, the appellant in M.A.C.A. 1942/2015. 6. The only dispute in this appeal relates to the quantum of compensation awarded by the Tribunal. The learned counsel for the claimants would point out that, while assessing the compensation for loss of income, the Tribunal took the monthly income of the deceased as Rs.5,000/- which was on the lower side. On the other hand, the learned counsel appearing for the 3[rd] respondent/Insurance Company in the claim petition would ``` 8 ``` ## **`MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015`** contend that, this is a case in which there was no actual dependency at all. Claimants 1 and 2 were married sisters of the deceased who were living separately. As regards the other claimants, they are the children of the brothers of the deceased, and they were also residing separately. It was specifically contended by the learned counsel for the 3[rd] respondent/Insurance Company in the claim petition by placing reliance upon Ext.A6 inquest report, that the appellant was residing alone in a house. The learned counsel for the 3[rd] respondent also places reliance upon the decision rendered by this Court in **Joseph v. Giji Varghese** [2009 (4) KLT 199]. 7. I have carefully gone through the records and considered the rival contentions raised from either side. The peculiar aspect to be noticed in this case is that the deceased was unmarried, and she was living separately from claimants. The said fact is clearly established from the materials placed on records. Since all the claimants were living separately with their own families, the question of dependency may not arise, as rightly pointed out by the learned counsel for the 3[rd] respondent ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 9 ``` Insurance/Company in the claim petition. No attempt was also made by the claimants to establish that, they were indeed dependents upon the deceased for their livelihood as well. In **Joseph’s** case (supra) this Court considered a situation of similar nature and it was observed in paragraph 5 as follows: _“5. The learned counsel for the appellant further raised a contention that eventhough there is no loss of dependency, there is loss of estate to the claimants and respondents 4 to 8, they being legal heirs of the deceased. The contention is that the Tribunal ought to have granted compensation considering the loss of estate. It has come out in evidence that the deceased was an Agriculturist. Eventhough there is no proof regarding quantum of income derived by the deceased, it can be presumed that the deceased was earning some amount out of agricultural operations. If that be so whatever surplus amount, which will remain after meeting personal expenses of the deceased, would have been his savings which ultimately could have devolved upon his sibling (legal heirs) as his estate. Taking view of the matter in this angle, we are of the opinion that the Tribunal ought to have granted compensation under the head of loss of estate. On our moderate estimate we arrive that the deceased was getting notional income of Rs.1500/- per month. Considering the fact that he had no wife and children 2/3rd of the amount can be deducted towards his personal expenses. Based on the age of the deceased the correct multiplier to be adopted is 11. Therefore 1/3rd of the earnings can be computed as loss of estate of the deceased. Thus the legal heirs of the deceased are entitled to get an amount of Rs.66,000/towards loss of estate. We are inclined to award the said amount. Hence the total compensation need be re-fixed at Rs.92,500/- (Rs.66,000+Rs.26,500).”_ ## **`MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015`** ## **`10`** 8. Thus, it is evident that when the facts and circumstances of the case would not establish the actual dependency upon the deceased, the question of awarding loss of dependency would not arise. Of course, it is true that for maintaining an application under Section 166 of the Motor Vehicles Act, it is not necessary that the claimant should be dependent upon the deceased. This is particularly because, any legal representative, can maintain an application, and as per the definition of legal representative as contained in Rule 2(k) in Kerala Motor Vehicle Rules, the term the expression ‘legal representative’ includes legal heir as well. In this case, there is no dispute that the claimants were the legal heirs of the deceased and therefore, they can maintain the claim petition. But, that does not mean that, they are entitled to compensation for loss of dependency, which compensation is based on the dependency and the extent thereof on the deceased. Of course, here again, it is true that the dependency need not be financial dependency, but it can also be dependency in other capacities. However, in this case there is absolutely no evidence showing any kind of dependency ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 11 ``` on the deceased. 9. However, even while holding that the claimants are not entitled to loss of dependency, the right of the claimants to get compensation as the legal heirs of the deceased may not be discarded. As far as the right of the legal heir is concerned, it would depend upon the right of the claimants to inherit the estate of the deceased. Therefore, the compensation that has to be awarded to such claimants should be under the head of loss of estate as held in **Joseph’s case** (cited supra). 10. In such circumstances, the next question to be determined is what could be the loss of estate. For determining the said question, the possible savings she would have made, had she been alive, is to be taken into consideration. While computing the said aspect, as held in **Joseph’s case** (supra), 1/3[rd] of the monthly income has to be taken. However, in this case the Tribunal took 50% of the monthly income for the purpose of computation of compensation, whereas in the light of the aforesaid observations the total monthly income ought to have been taken was only 1/3[rd] of the monthly income. At this juncture, ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 12 ``` the learned counsel for the claimants would point out that, the monthly income taken by the Tribunal was on the lower side. I find some force in the said contention. The Tribunal took the monthly income as Rs.5,000/-. It is to be noted that the accident occurred in the year 2011. Even though no evidence was adduced to substantiate the monthly income of the deceased, for determining the same, the method of computation evolved from the principles laid down by the honourable 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] can be followed. As per the same, in respect of an accident occurred in the year 2011, the monthly income can be reasonably fixed as Rs.8,000/- and it is fixed accordingly. 11. The next aspect relates to the age and the multiplier applicable. The learned counsel for the Insurance company seriously disputes the claim put forward by the claimant that she was aged 52 years old at the time of the accident. The learned counsel for the Insurance Company places reliance upon the ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 13 ``` medical records, including the post-mortem report and other records, wherein the age was shown as 60 years. It is to be noted that apart from the said records, no other materials are available and therefore, I deem it appropriate to accept the age of the deceased as 60 years. Then, the next question that would arise is the addition to be made towards future prospects. The learned counsel for the Insurance Company would point out that, in the absence of any evidence to show that she had crossed 60 years of age on the date of the accident, she has to be treated as a person coming within the category of the age group of above 60 years for the purpose of considering the future prospects. However, I am not inclined to accept the said contention. Of course, it is true that there are no materials indicating the exact date of birth of the deceased and therefore, a decision cannot be taken as to whether she had crossed the age of 60 years as on the date of the accident. But, since the provisions under the Motor Vehicles Act relating to compensation are welfare legislation enacted to protect the interest of victims of the accident, in cases where two views are possible, the view that advances the purpose ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 14 ``` of the enactment, namely the welfare of the victims, should be adopted. Thus, when there is a lack of evidence to determine the exact age of the deceased, the view to be taken is the one which advances the interest of the victim. Therefore, I have no hesitation in holding that for the purpose of future prospects, the deceased has to be treated as a person coming within the age group of 5060 years. While assessing the compensation for loss of estate, with the above criteria, the amount would come to Rs.3,16,800/[(8,000 + 10%) x 12 x 9 x 1/3]. The amount awarded by the Tribunal for loss of dependency was Rs.3,79,500/- and this Court has already found that the compensation has to be granted not under the head of loss of dependency but under the head of loss of estate. Therefore, when readjusting the compensation, it can be seen that the amount awarded by the Tribunal contains an excess amount of Rs.62,700/- (3,79,500 – 3,16,800). 12. When moving to the other heads, it can be seen that the Tribunal has awarded an amount of Rs.50,000/- towards love and affection and funeral expenses of Rs.25,000/- and loss of estate of Rs.2,500/-. The learned counsel for the Insurance ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 15 ``` Company contends that no amount could have been awarded for loss of love and affection. The counsel also places reliance upon the observations made in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] and **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760], wherein the head mentioned was loss of consortium and there was no reference of loss of love and affection. It was also contended that, in **Satinder Kaur** ’s case (cited supra) it was held that the amount of loss of love and affection cannot be granted at all. However, I am not inclined to accept the said contention. Of course, it is true that, in **Pranay Sethi’s** case, the amount of loss of love and affection was not mentioned. But, the situation which is peculiar to this case, namely, the person dying leaving behind only the siblings and the children of the siblings, was not envisaged in the said decision. Therefore, as the situation in this case warrants the application of a different yardstick due to the peculiar factual situation, the observations made by the Honourable Supreme Court in **Pranay Sethi’s** case would not stand in the way. The purpose of ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 16 ``` assessment is to ensure ‘just compensation’ to the victims of the motor vehicle accident. As far as the observations in **Satinder Kaur’s case** (cited supra) are concerned, it is to the effect that when loss of consortium is awarded, no separate compensation needs to be awarded under the head loss of love and affection. Of course, considering the fact that the claimants were siblings and children of the siblings of the deceased, the question of loss of consortium does not arise, but that would not dis-entitle the claimants who are otherwise closely related to the victim, to claim loss of love and affection. Evidently, the deceased was residing alone and the claimants herein are the close relatives. Therefore, the possibility of a strong relationship between the parties are very high, particularly between the claimants 1 and 2, who are the sisters of the deceased. Therefore, I am of the view that they will have to be compensated for the loss of love and affection, particularly since no other persons who can claim loss of consortium are available. As regards the quantum of compensation to be awarded under the head loss of love and affection, I am of the view that considering the peculiar facts and ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 17 ``` circumstances of the case, compensation for loss of consortium is to be awarded, that is Rs.40,000/- each to the 1[st] and 2[nd] claimants, the siblings of the deceased. Thus, the total amount would come to Rs.80,000/-. 13. In such circumstances, while re-assessing the compensation in the light of the above observations, the difference that would arise is only a marginal figure. The accident occurred in the year 2011. As regards the compensation payable in respect of the injuries or the death sustained in a motor accident, no person can calculate the compensation with arithmetic precision. There may be some variations, and the amount would be slightly higher or lower on some occasions. When the difference is only marginal, it is not necessary to interfere in the award already passed by the Tribunal years ago. In such circumstances, even though I find that the amount already awarded by the Tribunal is slightly higher than what is assessed by this Court in this appeal, for the reasons mentioned above, I do not find it necessary to interfere in the award. In such circumstances, I am not inclined to pass any order ``` MACA NO. 1502 OF 2015 & MACA NO. 1942 OF 2015 ``` ``` 18 ``` modifying the award passed in this case. Accordingly, both appeals are dismissed, confirming the amount awarded by the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs/DG