MACA NO. 1256 OF 2019 and CO NO. 170 OF 2019 (HDFC ERGO General Insurance Co. Ltd. v. Cross Objectors)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945** ## **MACA NO. 1256 OF 2019** **AGAINST THE AWARD IN OPMV 25/2016 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANT/3RD RESPONDENT:** **HDFC ERGO GENERAL INSURANCE COMPANY LTD BRANCH OFFICE, FIRST FLOOR, KVR TOWER, SOUTH BAZAR, KANNUR, PIN 670 002, REPRESENTED BY ITS MANAGER/LEGAL), REGIONAL OFFICE, RAJAJI ROAD, ERNAKULAM** **BY ADVS. GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SRI.ALEXY AUGUSTINE** ## **RESPONDENTS/CLAIMANTS & RESPONDENTS 1 & 2:** - **1 GIRIJA M. AGED 34 YEARS W/O LATE BIJU M.J, RESIDING AMBEDKAR COLONY, ATTARANHI, VAYATHOOR, ULIKKAL P.O.KANNUR DISTRICT, PIN 670 705.** - **2 ANJALI BIJU,(MINOR) AGED 15 YEARS D/O LATE BIJU M.J, RESIDING AMBEDKAR COLONY, ATTARANHI, VAYATHOOR, ULIKKAL P.O.KANNUR DISTRICT, PIN 670 705.REP. BY MOTHER AND NEXT FRIEND 1ST RESPONDENT** - **3 ANJANA BIJU,(MINOR) AGED 13 YEARS D/O LATE BIJU M.J, RESIDING AMBEDKAR COLONY, ATTARANHI, VAYATHOOR, ULIKKAL P.O.KANNUR DISTRICT, PIN 670 705.REP. BY MOTHER AND NEXT FRIEND 1ST RESPONDENT** - **4 ABHIJITH BIJU,(MINOR) AGED 10 YEARS S/O LATE BIJU M.J, RESIDING AMBEDKAR COLONY, ATTARANHI, VAYATHOOR, ULIKKAL P.O.KANNUR DISTRICT, PIN 670 705.REP. BY MOTHER AND NEXT** **MACA NO. 1256 OF 2019 and CO NO. 170 OF 2019** **2** ## **FRIEND 1ST RESPONDENT** - **5 THRESIAMMA, DIED) AGED 75 YEARS** **W/O JOHN, RESIDING AT MANIYAMKULAM HOUSE, MUNDANUR, NUCHIYAD P.O.ULIKKAL, KANNUR DISTRICT 670 705.** - **6 AJITH K.R, S/O RAVEENDRAN, KANDOTH HOUSE, ARABI P.O.ULIKKAL, KANNUR DISTRICT 670 705.** - **7 RADHAKRISHNAN, S/O KANNAN, PUTHIKKANDIYIL HOUSE, CHEMMARATHOOR P.O.VADAKARA, KOZHIKODE DISTRICT, PIN 673 104.** **ADDL.RESPONDENTS 8 TO 17 IMPLEADED** - **8 MOLLY, D/O. THRESIAMMA, AGED 56 YEARS, THOPPIL, SASIMALA P.O., PADICHIRA, PULPALLI,WAYANAD, KERALA - 673 579.** - **9 MARY, D/O. THRESSIAMMA, AGED 46 YEARS, KARIMBALACHIRAYIL, VILAMANA, KANNUR, PERINKERI P.O., KERALA - 670 706.** - **10 BABY,** - **S/O. THRESIAMMA, AGED 45 YEARS, MANIYAMKULAM, MUNDANNUR, NUCHIYAD P.O., KANNUR, KERALA - 670 705.** - **11 BINDU D/O. THRESIAMMA, AGED 38 YEARS, MANIYAMKULAM, MUNDANNUR, NUCHIYAD P.O., KANNUR, KERALA - 670 705.** - **12 LEELAMMA M.S., W/O. SHAJI M.J., AGED 51 YEARS, MANIYAMKULAM HOUSE, NEDIYODI, PADIYOOR P.O., KANNUR, 670 703.** - **13 LIJESH M.S., S/O. SHAJI, AGED 32 YEARS, MANIYAMKULAM HOUSE, NEDIYODI, PADIYOOR P.O., KANNUR - 670 703.** - **14 LEESHMA M.S., D/O. SHAJI, AGED 30 YEARS, MANIYAMKULAM HOUSE, NEDIYODI, PADIYOOR P.O., KANNUR - 670 703.** - **15 JOSE MANALEL, AGED 58 YEARS, MANALEL HOUSE, PARAKKAPPARA, EDAPPUZHA P.O., AYYANKUNNU, KANNUR - 670 704.** **MACA NO. 1256 OF 2019 and CO NO. 170 OF 2019** ## **3** **16 SOJAN, S/O. JOSE, AGED 27 YEARS, MANIYAMKULAM HOUSE, MUNDANOOR, NUCHIYAD P.O., KANNUR - 670 705. 17 NIKHIL JOSE, S/O. JOSE , AGED 23 YEARS, PARAKKAPPARA, EDAPPUZHA P.O., AYYANKUNNU, KANNUR - 670 704. * ADDITIONAL RESPONDENTS 8 TO 17 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 5TH RESPONDENT AS PER ORDER DATED 23/02/2022 IN I.A NO. 1/2022 IN MACA 1256/2019. BY ADVS. SRI.LIJIN THAMBAN V.S.ANU MON** **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2023, ALONG WITH CO.170/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1256 OF 2019 and CO NO. 170 OF 2019** **4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 CO NO. 170 OF 2019** **AGAINST OP(MV) NO.25 OF 2016 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANTS/CROSS OBJECTORS: RESPONDENTS NO. 1 TO 4 IN** ## **MACA** **1 GIRIJA M. AGED 34 YEARS W/O LATE BIJU M.J, RESIDING AMBEDKAR COLONY, ATTARANHI, VAYATHOOR, ULIKKAL P.O.KANNUR DISTRICT, PIN 670 705. 2 ANJALI BIJU,(MINOR) AGED 15 YEARS D/O LATE BIJU M.J, RESIDING AMBEDKAR COLONY, ATTARANHI, VAYATHOOR, ULIKKAL P.O.KANNUR DISTRICT, PIN 670 705.REP. BY MOTHER AND NEXT FRIEND 1ST RESPONDENT** **3 ANJANA BIJU,(MINOR) AGED 13 YEARS D/O LATE BIJU M.J, RESIDING AMBEDKAR COLONY, ATTARANHI, VAYATHOOR, ULIKKAL P.O.KANNUR DISTRICT, PIN 670 705.REP. BY MOTHER AND NEXT FRIEND 1ST RESPONDENT** **4 ABHIJITH BIJU,(MINOR) AGED 10 YEARS S/O LATE BIJU M.J, RESIDING AMBEDKAR COLONY, ATTARANHI, VAYATHOOR, ULIKKAL P.O.KANNUR DISTRICT, PIN 670 705.REP. BY MOTHER AND NEXT FRIEND 1ST RESPONDENT** **BY ADV LIJIN THAMBAN** ## **RESPONDENT/S:** **1 HDFC ERGO GENERAL INSURANCE COMPANY LTD BRANCH OFFICE, FIRST FLOOR, KVR TOWER, SOUTH BAZAR, KANNUR, PIN 670 002, REPRESENTED BY ITS** **MACA NO. 1256 OF 2019 and CO NO. 170 OF 2019** **5** **MANAGER/LEGAL), REGIONAL OFFICE, RAJAJI ROAD, ERNAKULAM 2 THRESIAMMA, DIED) AGED 75 YEARS W/O JOHN, RESIDING AT MANIYAMKULAM HOUSE, MUNDANUR, NUCHIYAD P.O.ULIKKAL, KANNUR DISTRICT 670 705.** **3 AJITH K.R, S/O RAVEENDRAN, KANDOTH HOUSE, ARABI P.O.ULIKKAL, KANNUR DISTRICT 670 705. 4 RADHAKRISHNAN, S/O KANNAN, PUTHIKKANDIYIL HOUSE, CHEMMARATHOOR P.O.VADAKARA, KOZHIKODE DISTRICT, PIN 673 104.** **BY ADV K.S.SANTHI** **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2023, ALONG WITH MACA.1256/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1256 OF 2019 and CO NO. 170 OF 2019** **6** ## **JUDGMENT** This Appeal and Cross-Objection arise from the final Award of the Motor Accidents Claims Tribunal, Thalassery ('Tribunal' for short) in OP(MV) No.25/2016. 2. This appeal has been filed by the HDFC Ergo General Insurance Co.Ltd., the insurer of the vehicle found to be the offending one in a road accident, which occurred on 28.09.2015. They admit that the accident occurred when the lorry carrying deceased Biju rammed into the offending vehicle, but they still assert that the legal heirs of the deceased, namely the Cross-Objectors, are not entitled to claim any compensation from them because, the former was travelling in the said vehicle as a gratuitous passenger. They, thus, pray that the Award of the Tribunal, to the extent to which they have been found responsible for payment of compensation be set aside. 3. While so, the Cross-Objectors contend that the compensation awarded in their favour by the learned Tribunal for the death of Biju is exiguous and larger sums are deserving to be granted, particularly because it has erred in reckoning the notional income of the deceased. **MACA NO. 1256 OF 2019 and CO NO. 170 OF 2019** **7** 4. I have heard Smt.K.S.Santhi – learned Standing Counsel appearing for the appellant – Insurance Company and Sri.Lijin Thamban – learned counsel appearing for the Cross-Objectors. 5. I have considered the afore rival submissions, on the touchstone of the evidence on record, which I have analyzed very carefully. 6. As I have indited above, the singular plea of the Insurance Company is that the Late Biju was a gratuitous passenger in the offending lorry; and that, therefore, they are not liable to compensate his legal heirs in any manner. However, the written statement filed by the Insurance Company before the Tribunal discloses that their specific case is that the deceased was, in fact, travelling in the Cargo platform of the vehicle and not inside its cabin and thus, that they are not responsible to honour the compensation. It is only as a matter of an alternative argument, that they contend that, even if he was within the cabin of the lorry, he should be deemed to be only a gratuitous passenger. 7. However, Ext.A1 – FIR, read along with Ext.A2 – Charge sheet, would show incontestably that the Police investigation has revealed that the deceased was a loading **MACA NO. 1256 OF 2019 and CO NO. 170 OF 2019** **8** and unloading worker, accompanying the goods in the lorry in question and was not travelling in it as a gratuitous passenger. The Police have recorded clearly, after investigation, that there were goods in the vehicle, which was being accompanied by the deceased in his capacity as a loading and unloading worker, so as to have it unloaded at the destination. 8. The learned Tribunal has assessed the evidence in this regard very carefully and it was concluded that, since there was no case for the appellant that the deceased was a 'cleaner' or such other employee in the lorry, he could only be deemed to be one accompanying the goods loaded in it at the instance of its owner. When the Police records are so affirmative, the Insurance Company could have impelled a case against it, only had they rebutted the investigation, by leading cogent and reliable evidence in opposition. They have chosen to do neither, not even to cite a witness on their side or to produce any document except Ext.B1 – which is the certificate of Insurance-cum-Policy. Obviously, the findings of the learned Tribunal cannot be find fault with, especially when, as said above, the records of the Police investigation are without any ambiguity, as to the status of the deceased **MACA NO. 1256 OF 2019 and CO NO. 170 OF 2019** ## **9** being a loading worker accompanying the goods in the vehicle in question. This is more so because, as I have also said above, the primary argument of the Insurance Company was that he was travelling in the cargo platform of the lorry and not in its cabin; but this has also been fully negatived through the Police investigation, which records luculently that he had to be removed from the cabin, consequent to the collections that the Lorry suffered. 9. That being said, coming to the notional income of the deceased, the claimants claimed Rs.30,000/- per month as his earnings, in his capacity as a loading and unloading worker. However, no evidence has been led by them to prove either the avocation or the stated income of the deceased; and obviously, the learned Tribunal could have only fixed his notional income. But, while doing so, it ought to have been guided by the postulations in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** which mandates that, even in the case of a person without any unascertainable income, or who is working as a 'Coolie', in the year 2015 – when the accident occurred - the minimum figure to be adopted as notional income is Rs.10,000/- per month. I do not see any **MACA NO. 1256 OF 2019 and CO NO. 170 OF 2019** ## **10** reason why the Tribunal has not adopted this figure. 10. The notional income being so reckoned, since the deceased was only 37 years at the time of the accident, an amount equal to 40% of it becomes eligible to be added to his notional income as 'Future Prospects' in view of the judgment in **National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662].** 11. That being so concluded, there is great force in the submissions of Smt.K.S.Santhi, that no amounts have been granted under the head 'Pain and Sufferings', going by **United India Insurance Co.Ltd v. Satinder Kaur @ Satwinder Kaur [2020(3) KHC 760];** while only compensation against 'Loss of Consortium' could have been granted to the appellants and not for 'Loss of Love and Affection'. I notice that the appellants are the wife, children and mother of the deceased and all of them are entitled to Rs.40,000/- each under the head 'Loss of Consortium', thus to a total sum of Rs.2,00,000/-. The Tribunal has, however, only granted Rs.40,000/- towards 'Loss of Consortium' to the wife, while offering Rs.1,60,000/- under the head 'Loss of Love and Affection' to appellants 2 to 5. Since the final figure is not more than Rs.2,00,000/-, I do not see any reason to **MACA NO. 1256 OF 2019 and CO NO. 170 OF 2019** ## **11** disturb the said findings, though technically, the entire sum ought to have been granted under the head 'Loss of Consortium'. In the afore circumstances, the Appeal and CrossObjection are disposed of in the following manner: a) The compensation awarded to the Cross-Objectors under the head 'Loss of Dependency' is enhanced to Rs.18,90,000/-, from Rs.15,12,000/- awarded by the Tribunal, reckoning the notional income of the deceased to be Rs.10,000/- as per **Ramachandrappa** (supra) and adding 40% 'Future Prospects' as per **Pranay Sethi** (supra) and deducting one-fourth towards his personal expenses, as per **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802].** The multiplier adopted in this regard is '15' as is admitted by both sides. b) The compensation of Rs.10,000/- awarded by the Tribunal under the head 'Pain and Sufferings' is deleted. In all other heads, the compensation awarded by the Tribunal remains unaltered. Consequently, the appellants will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% **MACA NO. 1256 OF 2019 and CO NO. 170 OF 2019** ## **12** as awarded by the Tribunal, from the date of claim until it is recovered. They will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal before it. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **Sd/- DEVAN RAMACHANDRAN, JUDGE** lsn