Liberty General Insurance Co. Ltd. v. S.P. Krishnan & Others (MACA No. 631/2021 & CO No. 73/2021, High Court of Kerala at Ernakulam)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 ``` ``` MACA NO. 631 OF 2021 ``` ``` AGAINST THE AWARD DATED 23.06.2020 IN O.P(M.V) NO.947/2017 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/2ND RESPONDENT:`** ``` LIBERTY GENERAL INSURANCE CO. LTD., FORMERLY KNOWN AS LIBERTY VIDEOCON GENERAL INSURANCE CO.LTD, DOOR NO. 4166 A, SHEMA BUILDING, 2ND FLOOR, M.G ROAD, ERNAKULAM - 682016, REPRESENTED BY ITS MANAGER LEGAL, LIBERTY GENERAL INSURANCE CO.LTD, CHENNAI. ``` ``` BY ADVS. TAPAS VARMA A P. JACOB MATHEW ``` ## **`RESPONDENTS/PETITIONERS 1 TO 7:`** ``` 1S.P.KRISHNAN, AGED 69 YEARS, S/O. PANCHAPAKESA IYER, 49/520A, OMKAR, ELAMAKKARA, KOCHI – 682026. 2S.P. RAMASWAMY, AGED 67 YEARS, S/O. PANCHAPAKESA IYER, 71/2194, VISHNUPRIYA, THANIKKAL, KEERTHI NAGAR ROAD, ELAMAKKARA, KOCHI – 682026. 3S.P. JAYARAM, AGED 52 YEARS, S/O. PANCHAPAKESA IYER, MIG 46, 10/852, SURABHI NAGAR, GCDA COLONY, KAKKANADU, KOCHI – 682030. 4S.P. MAHADEVAN, AGED 65 YEARS, S/O. PANCHAPAKESA IYER, MIG 46, 10/852, SURABHI NAGAR, GCDA COLONY, KAKKANADU, KOCHI – 682030. ``` ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 2 ``` ``` 5S.P. CHANDRASEKHAR, AGED 63 YEARS S/O. PANCHAPAKESA IYER, MIG 46, 10/852, SURABHI NAGAR, GCDA COLONY, KAKKANADU, KOCHI - 682030. *( EXPIRED) 6LALITHAMBIKA BALAN, AGED 69 YEARS W/O. LATE. S.P BALASUNDARAMANIAM, VISHNUPRIYA, VIVEK NAGAR, KADAVANTHARA, KOCHI – 682020. ``` ``` 7SREJITH BALASUBRAMANIAN, AGED 38 YEARS S/O. LATE S.P BALASUNDARAMANIAM, VISHNUPRIYA, VIVEK NAGAR, KADAVANTHARA, KOCHI - 682020. ``` ## **`* RESPONDENTS 1 TO 4 AND 6 TO 7 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED R5 AS PER ORDER DATED 22.09.2021 IN MEMO DATED 08/09/2021`** ``` BY ADV. ``` ``` SRI.R.PARAMESWARA IYER ``` ``` THIS APPEAL HAVING COME UP FOR HEARING ON 29.01.2024, ALONG WITH CO.73/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 ``` ## **`CO NO. 73 OF 2021`** ## **`CROSS OBJECTORS / RESPONDENTS:`** ``` 1S.P.KRISHNAN, AGED 69 YEARS, S/O. PANCHAPAKESA IYER, 49/520A, OMKAR, ELAMAKKARA, KOCHI – 682026. 2S.P.RAMASWAMY, AGED 67 YEARS, S/O. PANCHAPAKESA IYER, 71/2194, VISHNUPRIYA, THANIKKAL- KEERTHINAGAR ROAD, ELAMAKKARA, KOCHI – 682026. 3S.P.JAYARAM, AGED 52 YEARS, S/O. PANCHAPAKESA IYER, MIG 46, 10/852, SURABHI NAGAR, GCDA COLONY, KAKKANADU, KOCHI – 682030. 4S.P. MAHADEVAN AGED 65 YEARS S/O. PANCHAPAKESA IYER, MIG 46, 10/852, SURABHI NAGAR, GCDA COLONY, KAKKANADU, KOCHI – 682030. ``` ``` BY ADV ``` ``` R.PARAMESWARA IYER ``` ## **`RESPONDENT/APPELLANT:`** ``` LIBERTY GENERAL INSURANCE CO. LTD FORMERLY KNOWN AS LIBERTY VIDEOCON GENERAL INSURANCE CO.LTD, REPRESENTED BY ITS MANAGER, DOOR NO. 4166 A, SHEMA BUILDING, 2ND FLOOR, M.G.ROAD, ERNAKULAM, KOCHI – 682016. ``` ``` BY ADV. R.AJITHKUMAR ``` ``` THIS CROSS OBJECTION HAVING COME UP FOR HEARING ON 29.01.2024, ALONG WITH MACA.631/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 4 ``` ## **JUDGMENT** ## **Dated this the 29[th] day of January, 2024.** This appeal and Cross Objection are originated from an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short, ‘the Tribunal’) on 23.06.2020 in O.P.(M.V) No.947 of 2017. The appeal on hand was filed by the 2[nd] respondent before the Tribunal, who is none other than the insurer of the offending vehicle involved in the motor accident. Cross Objection was filed by the claimants before the Tribunal, who are none other than the siblings of Sri.S.P. Ramachandran, who died in a motor accident occurred on 19.09.2016 at about 5.45 p.m at Chalikavattom near Geethanjali Bus stop. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 to 7 and respondents 1 to 3 in accordance with their status in the Original Petition. 3. 2[nd] respondent filed the appeal on hand challenging dependency of the petitioners and also the quantum of ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 5 ``` compensation stood awarded by the Tribunal for the reason that it is exorbitant. Petitioners have also raised a challenge against the impugned award for the reason that just and reasonable compensation was not awarded by the Tribunal in favour of them. Petitioners have also opposed the argument raised by the 2[nd] respondent that they are not dependents of deceased S.P Ramachandran. 4. The facts of the case in brief are to the following effect:At about 5.45 p.m. on 19/09/2016 while Sri.S.P Ramachandran was about to cross the road at Chalikavattom, a motorcycle bearing Registration No.KL-7 CG 4280 knocked him down and thereby he sustained serious injuries. He was rushed to Medical Centre Hospital, Ernakulam and there, he succumbed to the fatal injuries received in the motor accident. He was survived by his brothers, widow and son of the pre-deceased brother. The elder son of the pre-deceased brother of the deceased was arrayed as the 3[rd] respondent in the Original Petition. The motor accident was allegedly occurred due to the rash and negligent riding of the motorcycle bearing Registration No.KL-7 CG 4280 by its rider, who ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 6 ``` was arrayed as the 1[st] respondent in the Original Petition and who is also it’s owner at the relevant time. 2[nd] respondent was the insurer of the offending vehicle. As stated earlier, 3[rd] respondent was the son of the predeceased brother of the deceased. All respondents were served with notice from the Tribunal. 1[st] and 3[rd] respondents, though received notice did not turn up to contest the Original Petition and accordingly were declared _exparte_ . 5. 2[nd] respondent has filed written statement admitting a valid policy for the offending vehicle covering the date of the motor accident. It was contended that the motor accident was occurred due to negligence of Sri.S.P. Ramachandran and not due to negligence of the 1[st] respondent. Claims regarding the age, occupation and monthly income of the deceased were also disputed. Quantum of compensation claimed was also disputed. 6. Before the Tribunal, petitioners alone adduced oral as well as documentary evidence. The evidence of the petitioners consists of the oral evidence of PWs 1 to 5 and documentary evidence of Exts.A1 to A35. On the basis of the oral as well as the documentary evidence, the Tribunal found that the motor accident in question ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 7 ``` was occurred due to the rash and negligent riding of the motorcycle bearing Registration No.KL-7 CG 4280 by the 1[st] respondent. The Tribunal has also found that the petitioners are entitled to get compensation from the respondents. The Tribunal arrived at `6,33,500/- as the compensation payable in favour of the petitioners and directed the 2[nd] respondent to deposit the same with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation. 7. It is contended by Sri.P. Jacob Mathew, the learned counsel for the 2[nd] respondent that petitioners 1 to 5 are siblings of Mr.S.P Ramachandran, who died in the motor accident and petitioners 6, 7 and respondent No.3 are the wife and the children of the pre-deceased brother of Mr.S.P Ramachandran. It is further contended that the Tribunal has taken `15,000/- as the monthly income without any basis. It was contended by the learned counsel that the Tribunal has awarded `1,00,000/- as compensation towards loss of love and affection. According to the learned counsel, petitioners being siblings of the deceased and wife and children of pre-deceased brother of the deceased, are not entitled to get ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 8 ``` compensation under the head loss of love and affection. The learned counsel has also pointed out that `25,000/- was awarded by the Tribunal as compensation towards pain and suffering, for which also the petitioners are disentitled to. 8. It is pointed out by the learned counsel that though the salary certificate of the deceased was marked in evidence as Ext.A12, the person who issued it was not examined. According to him, petitioners have marked Exts.A13 to A20 in evidence with a view to establish the monthly income of the deceased. According to him, those documents having not been properly proved, ought not to have been relied on by the Tribunal while fixing his monthly income as `15,000/-. According to the learned counsel, only oral evidence was there and the Tribunal is unjustified in fixing the monthly income as `15,000/- on its basis. The learned counsel canvassed for reducing the monthly income fixed as above and to re-fix a reasonable sum, in its place based on **Ramachandrappa vs.** **Manager, Royal Sundaram Alliance Insurance Company** **Limited [(2011) 13 SCC 236]** . The learned counsel has also relied on **United India Insurance Company Ltd Vs. Satinder** ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 9 ``` **Kaur And Others [(2021) 11 SCC 780]** to convince this Court that the petitioners are not entitled to get compensation towards pain and sufferings. The learned counsel has also attempted to establish that the petitioners are not entitled to get compensation towards loss of love and affection. 9. The learned counsel has also contended that the deceased being a bachelor, the Tribunal has rightly deducted half of the monthly income in consideration of personal expenditure, he would have incurred, had he been alive and therefore, interference is totally unwarranted in that respect 10. The learned counsel for the petitioners contended that oral evidence has come to the effect that the deceased was looking after the affairs of petitioners 4 and 5 in full and also the treatment expenses of petitioner No.2. According to him, oral evidence have been tendered by the petitioners by examining PWs 1 to 5 and those evidence would establish that the deceased was running a music troupe and was getting reasonable income therefrom. According to him, Ext.A12 is a certificate issued from Jacob’s Enterprises Pvt. Ltd., and from the oral evidence it is indicated that the deceased was ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 10 ``` working there. According to him, the monthly income fixed by the Tribunal is highly un-reasonable and interference and modification is required for making the compensation payable, just and reasonable. The learned counsel has also pointed out that the petitioners though siblings of the deceased are also entitled to get compensation towards loss of love and affection and pain and sufferings. 11. The learned counsel for the petitioners has contended that the Tribunal has incorrectly deducted half of the monthly income in consideration of the personal expenditure of the deceased, in case of his survival after the motor accident. It is pointed out on the basis of the evidence on record that two of the siblings were residing with the deceased and depending upon him for their livelihood. According to him, it is also convinced from the evidence on record that petitioners 4 and 5 are unmarried. He has also submitted based on the oral evidence of PW1 that the treatment expenditure of the 2[nd] petitioner was also met with from the income earned by the deceased. According to him, that being the reality, deduction in consideration of personal expenditure ought to have been 1/3[rd] or 1/4[th] , rather than half. ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 11 ``` 12. As already discussed with, the salary certificate issued from Jacob’s Enterprises Pvt.Ltd. was produced by the petitioners and marked in evidence as Ext.A12. Though witnesses were examined by the petitioners as PWs 1 to 5, those did not include, the signatory of Ext.A12. Since Ext.A12 stands disproved, this Court is not in a position to rely on it to establish the monthly income of the deceased. Exts.A13 to A20 are certificates and letters issued from different sources. But the signatories of those letters and certificates were not examined. Therefore, this Court is declined to rely on those in evidence for fixing the monthly income. 13. Oral evidence have been tendered by PWs 1 to 5. PW1 is none other than the 4[th] petitioner. He deposed to the effect that the deceased had association with Jacob’s Enterprises Pvt.Ltd Vytilla, which is an institution related to music. PW2 is none other than an independent witness. He has hearsay from the deceased that he was associated with a music troupe namely Jacob’s Enterprises Pvt.Ltd. PW3 is the Counsellor of Cochin Corporation, Elamakkara Division and PW4 is Counsellor of Thrikkakara Muncipality. PW5 is none other than the neighbour of the deceased and supplier of Provisions ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 12 ``` and Vegetables to the latter’s residence. Though oral evidence have been tendered by petitioners in the above manner, those cannot be relied on for the reason that materials to substantiate those are not forthcoming. Moreover, these people have only hearsay information regarding the monthly income of the deceased. 14. It has come out in evidence while examining PW1, who was none other than a sibling of the deceased that himself alongwith the 5[th] petitioner were bachelors and residing with the deceased. It has also come out in evidence that the entire expenditure of PW1 and petitioner No.5 were met with by the deceased. It has also come out in evidence that the 2[nd] petitioner was age old and his treatment expenses were met with by the deceased. The evidence of PWs 1 to 5 can be relied on to take a view that the deceased was associated with a musical troupe namely Jacob’s Enterprises Pvt. Ltd. Oral evidence of PW1 can be accepted to the extent it conveyed that the entire expenditure of PW1 and the 5[th] petitioner were met with by the deceased. Oral evidence of them can also be relied on to take a view that the treatment expenditure of the 2[nd] petitioner was met with by the deceased. Therefore, the deceased must have an earning of ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 13 ``` more amount than `15,000/- for meeting all the above expenditures. Moreover, the personal expenditure must also have to be met with by the deceased. 15. In view of the above, this Court is inclined to modify the monthly income by enhancing the same from `15,000/- stood adopted by the Tribunal to `20,000/-. It is noticed from the impugned award that the Tribunal has awarded `15,000/- each as compensation towards funeral expenses and loss of estate. Those being reasonable sums are maintained. The multiplier of 5 has been adopted with reference to the age of the deceased and that being correct is also maintained. Half of the monthly income has been deducted by the Tribunal taking into account of the bachelorship of the deceased. This court has already discussed with the oral evidence and on its basis found that PW1 and the 5[th] petitioner were totally depending on the deceased for their livelihood and the 2[nd] petitioner, for his treatment expenditure. Therefore, this Court finds every justification in considering 1/3[rd] as the deduction towards personal expenditure instead of half stood taken by the Tribunal. ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 14 ``` 16. The constitution Bench of the Apex Court has held in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)]** that the survivors of the deceased, if not spouse, children or parents, are not entitled to get compensation towards loss of consortium. In the case on hand, the deceased was a bachelor and was staying alongwith his two brothers, who were also unmarried. As already discussed with, PW1 and the 5[th] petitioner were totally depending upon the deceased for their livelihood and the 2[nd] petitioner solely for his treatment expenditure. Therefore, this Court is declined to interfere with the quantum of compensation stood awarded by the Tribunal towards loss of love and affection and that is maintained. 17. As held by the Apex Court in **United India Insurance Company Ltd Vs. Satinder Kaur And Others [(2021) 11 SCC 780]** , petitioners being the legal representatives of the deceased are not entitled to get any compensation towards pain and sufferings of the deceased. Therefore, `25,000/- stood awarded by the Tribunal under that head is only to be deducted from the total compensation payable. ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 15 ``` 18. Since this court has modified the monthly income from `15,000/- to `20,000/-, there would be considerable variance in the quantum of compensation payable towards loss of dependency. Compensation for loss of dependency when re-calculated on the basis of the modified monthly income, `8,00,000/- (`20,000/- x 12 x 5 x 2/3) is arrived at. `4,50,000/- is already awarded by the Tribunal and that when adjusted against, petitioners will get `3,50,000/- (`8,00,000/- - `4,50,000/-) as compensation towards loss of dependency. From that, `25,000/- stood awarded by the Tribunal as compensation towards pain and sufferings is liable to be deducted and therefore, petitioners will get `3,25,000/- (Rupees Three Lakh Twenty Five Thousand only) (`3,50,000/- - `25,000/-) as additional compensation. The above amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 19. 2[nd] respondent, being the insurer of the offending vehicle shall pay `3,25,000/- arrived at as additional compensation with interest fixed as above, within a period of two months from the date on which a certified copy of this judgment is received. The disbursal ``` MACA NO.631/2021 & C.O NO. 73/2021 ``` ``` 16 ``` of the amount shall be in accordance with the directions issued by the Tribunal in the impugned award and also in accordance with the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. 20. M.A.C.A as well as Cross Objection succeed and are allowed in part. A challenge was also raised against the rate of interest stood awarded by the Tribunal. According to the learned counsel, 9% has been awarded by the Tribunal as interest and that is exorbitant. This Court is declined to interfere with the rate of interest for the reason that the Tribunal has awarded it in exercise of the discretion vested on it. This Court finds no reason to interfere with and that is maintained. **`Sd/-` MARY JOSEPH** **JUDGE** JJ