K.I. Nashim and others v. United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY,THE 10TH DAY OF JUNE 2020/20TH JYAISHTA, 1942 MACA.No.2895 OF 2015(B)** **AGAINST THE AWARD IN OPMV 1780/2013 DATED 30-04-2015 OF III ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,ERNAKULAM** ## **APPELLANTS/PETITIONERS IN OP(MV):** - **1 K.I. NASHIM,AGED 37 YEARS, S/O.LATE K.B.ISMAIL,KARUPPUMVEETIL, 7/998,CHETTIYAT PARAMBU,KAPPALANDIMUKKU, MATTANCHERRY, KOCHI-2.** - **2 K.I.NAVAB,AGED 42 YEARS,S/O.LATE K.B.ISMAIL, KARUPPUMVEETIL,7/998,CHETTIYAT PARAMBU, KAPPALANDIMUKKU,MATTANCHERRY,KOCHI.** - **3 K.I.NAVAS,AGED 45 YEARS,S/O.LATE K.B.ISMAIL, KARUPPUMVEETIL,7/998,CHETTIYAT PARAMBU, KAPPALANDIMUKKU, MATTANCHERRY, KOCHI-2.** - **4 K.I.SIDDIQUE,AGED 48 YEARS,S/O.LATE K.B.ISMAIL, KARUPPUMVEETIL, 7/998, CHETTIYAT PARAMBU, KAPPALANDIMUKKU, MATTANCHERRY, KOCHI.** - **5 K.I.NAZILA,AGED 39 YEARS,D/O.LATE K.B.ISMAIL, W/O.SUBAIR, KARUPPUMVEETIL, 7/998, CHETTIYAT PARAMBU, KAPPALANDIMUKKU, MATTANCHERRY, KOCHI.** **BY ADVS. SRI.K.K.APPU SRI.ISAC SANJAY** ## **RESPONDENT/3RD RESPONDENT IN OP(MV):** **UNITED INDIA INSURANCE CO.LTD.,4TH FLOOR, JOSE TRUST BUILDING,CHITTOOR ROAD,** MACA No.2895/2015 : 2 : **ERNAKULAM DISTRICT PIN 682 011, REPRESENTED BY ITS DIVISIONAL MANAGER.** **BY ADV. SRI.P.MURALEEDHARAN SRI JOHN JOSEPH VETTIKKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-06-2020, THE COURT ON 10-06-2020 DELIVERED THE FOLLOWING:** MACA No.2895/2015 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 10[th] day of June, 2020**_ Aggrieved by the Award in OP(MV) No.1780/2013 dated 30.04.2015 on the files of the III Additional Motor Accidents Claims Tribunal, Ernakulam, the legal heirs of the deceased K.B.Ismail are in appeal before this Court. 2. The appellants as petitioners, filed OP(MV) No.1780/2013 stating that when late K.B.Ismail and his family were returning to Kochi from Vagamon in a tempo traveller, at Kambanganam Bhagom, the vehicle overturned due to over speed. All passengers in the vehicle were injured and K.B.Ismail, who suffered head injury, died. Appellants 1 to 4 are sons of late K.B. Ismail and the 5[th] appellant is his daughter. The appellants filed OP(MV) claiming a compensation of 5.5 lakhs. Others who were₹ MACA No.2895/2015 : 4 : injured in the accident made their respective claims by filing separate OPs(MV). 3. All the OPs(MV) arising out of the said accident were together by the Tribunal and a common judgment and Award was passed. By the said impugned judgment/Award, the Tribunal held that the appellants are entitled to compensation for death of Sri.K.B.Ismail which was assessed at 59,000/-, under the following heads:-₹ |**Heads**|**Amount**<br>**claimed**<br>**(in Rupees)**|**Amount**<br>**awarded**<br>**(in Rupees)**| |---|---|---| |Loss of dependency|5,04,000/-|0| |Transportation expenses|3,000/-|3,000/-| |Damage to cloth|1,000/-|1,000/-| |Funeral expenses|25,000/-|25,000/-| |Compensation for pain and<br>sufferings|5,000/-|5,000/-| |Compensation for loss of love<br>and affection|25,000/-|25,000/-| |Total<br>Claim is limited to Rs.5.5 Lacs|5,63,000/-|**59,000/-**| The Tribunal awarded 9% interest also and the insurer was directed to deposit the compensation amount. The Tribunal MACA No.2895/2015 : 5 : did not award any compensation towards loss of dependency. 4. The learned counsel for the appellants argued that the accident occurred on 26.12.2012 when the deceased was aged 65 years. The deceased was earning ₹8,000/- per month in his engagement as Real Estate Broker. However, the Tribunal did not accept the income of the deceased and granted no compensation towards loss of dependency to the appellants. 5. The learned counsel for the appellants pointed out that Legal Heirs of the deceased are entitled to compensation for loss of dependency. He relied on the judgment of the Apex Court in _**National Insurance Co. Ltd. v. Birender** [2020 (2) KLT 182 (SC)]_ to contend that the Motor Vehicles Act does not take away the right of the legal heirs to get compensation because of absence of dependency of the concerned legal representative. Even major married and earning sons of the deceased being legal MACA No.2895/2015 : 6 : representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application, irrespective of the fact that whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only. Relying on the judgment in _**Managing Director, Tamil Nadu State Transport Corporation Ltd. v. M.Shanthi and others** [AIR 2011 Mad 118]_ , the counsel argued that when a claim petition is filed by a married son or daughter, if the claimant adduces evidence establishing that he/she is a legal representative and proves that the deceased during his lifetime had contributed a portion of his income to him/her, then if the said contention is disputed, it is the burden of the objector to lead strong rebuttal evidence to dislodge the claim of dependency. If the contention of contribution by the deceased to the legal representatives is not rebutted by any acceptable evidence, the inevitable conclusion of the Tribunal should be in favour of the MACA No.2895/2015 : 7 : claimants. 6. The counsel for the appellants also relied on the judgment in _**A.Maddaiah and others v. Viswanath and another** [2014 ACJ 701]_ to point out that even in case of the death of persons aged more than 60 years, legal representatives are entitled to compensation and also for loss of future earning of the deceased. Judgment in _**Shriram General Insurance Co. Ltd. v Bhuvaneswari and others** [2014 ICO 2402]_ of the High Court of Madras was relied on to contend that the dependency of the legal representatives is a question to be considered by the Tribunal, but it does not mean that only the dependents can claim compensation. The compensation being the amount for the loss to the estate of the deceased, it has to be considered as to whether the legal representatives had been put to loss because of the death of the deceased. 7. The learned Standing Counsel appearing for the respondent-insurer opposed the arguments made on behalf MACA No.2895/2015 : 8 : of the appellants. The Standing Counsel submitted that the appellants, who are the claimants in OP(MV), did not adduce any oral evidence to prove the avocation or income of the deceased. They did not produce documentary evidence also. The deceased was 65 years at the time of death. Appellants 1 to 4, who are sons of the deceased, were aged 37 to 48 years. They were married and had their own families. The 5[th] appellant was daughter of the deceased and was aged 39 years. She was married. There is nothing on record to show that they were residing together in the same house along with the deceased father. Taking into account the advanced age of the deceased, no person can assume that the deceased was an earning citizen at the time of death. This would be especially so, when not even a scrap of paper was produced in proof of the avocation or income of the deceased. The appeal has been filed only on an experimental basis and it is liable to be dismissed, argued the Standing Counsel for the respondent. MACA No.2895/2015 : 9 : 8. I have heard the learned counsel for the appellants and the learned Standing Counsel for the respondent-insurer. 9. The prime contention of the counsel for the appellants is that the Tribunal did not award any compensation for loss of dependency even though an amount of 4,04,000/- was claimed. It is pertinent to note₹ that in the OP(MV) filed by the appellants, the deceased was shown as a Broker. The learned counsel for the appellants argued that the deceased was a Real Estate Broker. Apart from making a claim, the appellants did not adduce any evidence to prove that the deceased was a Real Estate Broker. None of the appellants came forward to give oral evidence. Taking note of the advanced age of the deceased and in the absence of any supporting evidence, this Court is not inclined to assume that the deceased was an earning member of the family. 10. As regards the reliance placed by the learned MACA No.2895/2015 : 10 : counsel for the appellants on _**National Insurance Co. Ltd. v. Birender**_ ( _supra)_ , the Apex Court in the said judgment has only held that major married and earning sons of the deceased being legal representatives have a right to apply for compensation, irrespective of the fact that whether the concerned legal representatives were fully dependent on the deceased. There cannot be any dispute regarding the proposition of law laid down by the Apex Court. In the appellants' case, the OP(MV) filed by them was entertained by the Tribunal and Award was passed granting certain monetary benefits to them. The appellants' complaint is that the Tribunal did not grant any amount as compensation towards loss of dependency. The judgment of the Apex Court therefore will not be of any help to the appellants. In the judgment of the Hon'ble Madras High Court in _**Managing Director, Tamil Nadu State Transport Corporation Ltd.**_ ( _supra_ ), the Court held that when a claim petition is made by a married son or daughter and if the MACA No.2895/2015 : 11 : claimants adduced evidence that the deceased during his lifetime had contributed a portion of his income to them, and if the said contention is disputed, it is the burden of the objector to lead strong rebuttal evidence to dislodge the claim of dependency. This judgment also will not be of much avail to the appellants because in the appellants' case, they have not adduced any evidence whatsoever warranting rebuttal evidence of the respondent. The judgment of the Hon'ble Madras Court in _**Shriram General Insurance Co. Ltd.**_ ( _supra_ ) also cannot be taken to mean that even in the absence of any evidence regarding the avocation or income of the deceased, the legal heirs are entitled to compensation towards loss of dependency. The judgment in _**A.Maddaiah**_ ( _supra)_ of the Hon'ble High Court of Andra Pradesh also cannot be relied on for such proposition. In the circumstances, I find no reason to hold that the appellants are entitled to any compensation towards loss of dependency. MACA No.2895/2015 : 12 : 11. In fact, towards other heads, the Tribunal has granted the amounts claimed by the appellants. However, I note that towards compensation for loss of love and affection, the Tribunal granted only an amount of 25,000/-.₹ A Constitution Bench of the Apex Court in _**National Insurance Co. Ltd. v. Pranay Sethi and others** [(2017) 16 SCC 680]_ held that Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standa because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a MACA No.2895/2015 : 13 : windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. In this case, a 65 year old man has died consequent to a motor accident. The compensation awarded by the Tribunal is only 59,000/-. Scanning through the various heads and₹ amounts awarded thereunder, this Court finds that the amount of 25,000/- awarded by the Tribunal towards loss₹ of love and affection sustained by the four sons and a daughter of the deceased is on a lower side. In the circumstances, to do justice in the case, the compensation awarded for loss of love and affection is to be enhanced to ₹1,25,000/-. Accordingly, MACA is partly allowed and it is declared that the appellants will be entitled to an additional compensation of 1,00,000/- (₹ ₹25,000/- x 5 minus 25,000/-₹ already awarded by the Tribunal) towards loss of love and affection. The additional compensation will carry an interest of 9% per annum from the date of the OP(MV). The MACA No.2895/2015 : 14 : respondent is directed to pay the additional compensation within a period of one month. Sd/- **N. NAGARESH, JUDGE** aks/08/06/2020