MACA No. 146 of 2020 — National Insurance Co. Ltd. v. Lalithakumari and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY,THE 13[TH] DAY OF DECEMBER 2023/22ND AGRAHAYANA,1945 ``` ## **`MACA NO. 146 OF 2020`** ## **`OPMV 887/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR`** ## **`APPELLANT/3rd RESPONDENT:`** ``` NATIONAL INSURANCE CO.LTD 1ST FLOOR,SHANTI PARK,KOLENCHERY-682311,REP.BY ITS MANAGER,NATIONAL INSURANCE CO.LTD,ERNAKULAM. ``` ``` BY ADVS. R.AJITH KUMAR (128/84) Deepa George ``` ## **`RESPONDENTS/PETITIONER 1 TO 3 & RESPONDENTS 1 & 2:`** - `1 LALITHAKUMARI, AGED 54 YEARS W/O LATE SASIDHARAN NAIR,KANICHERI HOUSE,VALAYANHCHIRA.P.O,VENGOLA KARA,ARACKAPPADY VILLAGE,PIN-683556.` ``` 2REMYA S., AGED 29 YEARS, D/O LATE SASIDHARAN NAIR,KANICHERI HOUSE, VALAYANCHIRANGARA.P.O, VENGOLA KARA, ARACKAPPADY VILLAGE,PIN-683556. ``` ``` 3RESHMI.S, AGED 28 YEARS D/O LATE SASIDHARAN NAIR,KANICHERI HOUSE, VALAYANCHIRANGARA.P.O, VENGOLA KARA, ARACKAPPADY VILLAGE,PIN-683556. ``` ``` 4WILSON.K.P,S/O PAILY,KOMBANAL HOUSE, MAZHUVANNOOR.P.O, MUGHALMUGHAL,PIN CODE-686691. 5SHIJO.K.K, S/O KRISHNANKUTTY,KARAMOOD HOUSE, VALAMPOOR,MAZHUVANNOOR.P.O, PINCODE-686669. BY ADVS. SRI.K.K.APPU SRI.ISAC SANJAY ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** M.A.C.A. No.146/2020 : 2 : ## JUDGMENT This appeal is submitted by the 3[rd] respondent in O.P.(M.V)) No.887/2014 on the files of the Motor Accidents Claims Tribunal, Perumabavoor. 2. The said claim petition was submitted by respondents 1 to 3 herein, seeking compensation for the death of one Sasidharan Nair, due to the injuries sustained in a motor accident that occurred on 02.05.2013. According to the claimants, the accident occurred, in the manner as follows: On the date of the accident the deceased was riding a Honda Activa scooter bearing registration No.KL 40/G-5437 through the Valayanchirangara - Valamboor road from south to north direction. While he was trying to overtake a mini tipper lorry, the second respondent, who was sitting in the driving seat of the said lorry, suddenly opened the right door of the said vehicle, and consequently, the scooter hit the door of the said tipper lorry resulting in serious injuries to the deceased. He was taken to MOSC Government Medical College Hospital and while undergoing treatment he succumbed M.A.C.A. No.146/2020 : 3 : to injuries on 24.06.2013, after more than 50 days after the accident. The deceased was aged 58 years at the time of accident and he was a retired Excise Officer. He was getting an amount of Rs.11,844/- as the monthly pension and the claim petition was submitted in such circumstances by the wife and two daughters of the deceased. 3. The 1[st] and 2[nd] respondents, the owner and driver of the mini tipper lorry, filed a joint written statement wherein the ownership of the 1[st] respondent over the said vehicle was admitted and it was also stated that the 2[nd] respondent was the driver of the vehicle at the time of the accident. However, they denied the negligence on the part of the 2[nd] respondent. According to them, the deceased Sasidharan Nair was riding the vehicle after consuming alcohol, and he fell down on the road when he reached the side of the lorry. The 3[rd] respondent insurance company filed a written statement admitting the insurance coverage for the mini tipper lorry, but denied the negligence on the part of the 2[nd] respondent. It was also contended in the written statement of the 3[rd] respondent that the accident occurred when the 2[nd] respondent got down from the M.A.C.A. No.146/2020 : 4 : lorry by opening the driver’s door, the deceased came riding the Honda Activa Scooter at an excessive speed and hit the door of the lorry. It was also contended that the 2[nd] respondent was not holding a valid and effective driving licence to drive mini tipper lorry as he was charge-sheeted read with Section 3(1) read with Section 181 of the Motor Vehicles Act and therefore, there was violation of policy conditions. 4. The evidence in this case consists of Exts.A1 to A12 from the side of the claimants. The wound certificate was marked as Ext.X4. From the side of the respondents, RWs1 and R5 were examined and Ext.B1 to B4 were marked. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2[nd] respondent as he opened the door all of a sudden. Being the insurer of the said vehicle, the 3[rd] respondent/appellant was held liable to pay the compensation. The quantum of compensation was fixed as Rs.19,86,037/- and the appellant/ 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realisation. This appeal is submitted by the appellant/Insurance company M.A.C.A. No.146/2020 : 5 : challenging the finding of the tribunal imposing negligence on the part of the 2[nd] respondent and consequential liability upon the appellant and also challenging the quantum of compensation. 6. Heard Smt. Deepa George, the learned counsel appearing for the appellant and Sri. K.K. Appu, the learned counsel appearing for respondents 1 to 3. 7. The first contention that has been raised by the appellant is with regard to the finding on the question of negligence. To substantiate the said contention, the learned counsel places reliance upon the oral testimony of RWs1 to 4. By placing reliance upon the same it was contended by the learned counsel for the appellant that, it was a case in which the deceased fell from the motorcycle as he was riding the same by consuming alcohol and there is no evidence to show that, the accident occurred as it hit on the door of the mini lorry. RW1 was the owner and RW2 was the driver of the said vehicle. The crucial aspect to be noticed is that, in the joint written statement submitted by RW1 and RW2 in paragraph 2 it was averred as follows: M.A.C.A. No.146/2020 : 6 : “It is admitted that the 1[st] respondent is the owner of the vehicle bearing registration No.KL-BJ 2766. It is also admitted that at the time of the accident, the 2[nd] respondent was the driver of the vehicle bearing registration No.KL-BJ 2766”. Despite the fact that a specific admission was made in the written statement to the effect that at the time of the accident, the 2[nd] respondent was the driver, when RW1 and RW2 were examined before the tribunal, they took a stand that, at the relevant time, the vehicle was being driven by the 1[st] respondent and at the exact point of time the accident occurred, there was no one in the driver seat of the said vehicle. To substantiate the same, two witnesses, namely RW3 and RW4, were also examined at the instance of the 1[st] and 2[nd] respondents. However, the crucial aspect to be noticed is that, even though the deposition made by RW1 and RW2 were supported by RW3 and RW4, the tribunal did not rely upon the evidence of any of the said witnesses. The main reason for the same was that since there was a specific admission in the joint written statement submitted by RW1 and RW2 to the effect that the 2[nd] respondent was the driver of the vehicle at the time of the accident, the version put forward through the oral evidence adduced by the said parties was only M.A.C.A. No.146/2020 : 7 : an afterthought. It was also concluded that RW3 and RW4, were persons who came to the court to depose on the request of RW2, the witnesses. After carefully going through the averments in the written statement submitted by R1 and R2, which amounts to a clear admission, I find no discrepancy in the conclusion arrived at by the tribunal in this regard. This is because the same is a probable view. 8. There is yet another aspect which has to be taken into account in this regard. In the written statement of the appellant/ 3[rd] respondent, there is no denial as to the manner in which the accident occurred, but there is a specific admission to the effect that the accident occurred when the scooter hit the door of the lorry at a time when the 2[nd] respondent came out of the vehicle by opening the door. Thus, the version put forward by RWs 1 to 4 cannot be relied on by the appellant as the said version is against the pleadings advanced by the appellant/ 3[rd] respondent. 9. The learned counsel for the appellant also made an attempt to place reliance upon Ext.X1, which is the wound certificate issued by RW5, to establish that, even in the said document, the cause of injuries was shown as “bike toppled at M.A.C.A. No.146/2020 : 8 : 4.30 p.m.” It was contended that in the said document, the involvement of the mini lorry was not mentioned. Yet another contention raised was that, in Ext.X1, it was also mentioned that there was the smell of alcohol. However, it is to be noted that the reason mentioned in the wound certificate as to the cause of the accident cannot be treated as conclusive evidence to decide the manner in which the accident occurred. In the cross-examination, RW5 clearly admitted that the reason was entered into Ext.X1 on the basis of a statement given by someone who was accompanying the patient. Therefore, it is not clear from the said materials as to whether the said information was furnished by a person who witnessed the said incident or not. Even otherwise, the said endorsement cannot be treated as a valid piece of evidence which can be acted upon for deciding the question of the cause of accident, in the absence of any corroborative materials. 10. Of course, it is true that it is mentioned the wound certificate that there was the smell of alcohol. In crossexamination, RW5 admitted that the smell of alcohol could not mean that he was driving the vehicle after consuming the alcohol M.A.C.A. No.146/2020 : 9 : and that it could only mean that there was a smell of alcohol. Even otherwise, merely because there was the smell of alcohol, it cannot be assumed that he was driving the said vehicle under the influence of alcohol in the absence of any evidence. Therefore, on that ground, also I do not find any sustainability in the contentions raised by the learned counsel for the appellant. 11. Thus, after carefully examining the materials available on record, I do not find any reason to interfere with the finding of the tribunal holding that the accident occurred due to the negligence on the part of the 2[nd] respondent as he opened the door of the vehicle. As mentioned above, even though a different case was sought to be set up by the 1[st] and 2[nd] respondents, the same was rightly rejected by the tribunal, in view of the fact that their version was completely contrary to their pleadings. The case advanced by the said respondents is also not inconsistent with the specific averment made by the appellant in their written statement, as to the manner the accident occurred. Therefore, I do not find any justification in accepting the contentions raised by the appellant with regard to the question of negligence. M.A.C.A. No.146/2020 : 10 : 12. The next aspect relates to the quantum of compensation. The learned counsel appearing for the insurance company vehemently contended that, even without any evidence, the tribunal accepted the monthly income of the deceased as Rs.11,844/- and calculated the compensation with an addition of 15% thereof towards future prospects. The learned counsel for the respondent opposes the said contention by pointing out that the said amount was accepted by the tribunal on the basis of the Ext.A12 pension book. As per the same as on 01.02.2011, the deceased was getting a basic pension of Rs.9,309 + DA 2,235/and a further amount of Rs.300/- for medical allowances. It was pointed out that the same was actually the income of the deceased, and therefore, the compensation was calculated by the tribunal on the basis of the same. There is no illegality therein since Ext. A12 establishes the figure referred to above. The learned counsel for the appellant contends that, even after the death of the deceased, the wife was getting a family pension, and therefore, the said amount should not be taken into account. 13. However, I am not inclined to accept the said contention. This is particularly because, the fact that he was M.A.C.A. No.146/2020 : 11 : getting an amount of Rs.11,844/- by way of his pension is very much evident from the records. Had he been alive, he would have received the same amount with all the periodical enhancements which would take place at particular intervals. Since, as rightly pointed out by the learned counsel for the claimants, it was a regular income that was being received by the deceased, there was nothing wrong in accepting the said amount as the monthly income of the deceased. It is also to be noted in this regard that, even if the method of computation of monthly income evolved from the principles laid down 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] taken into consideration, in respect an accident occurred in the year 2013, the monthly income of an ordinary worker without any skills could be fixed as Rs.9,000/- even in the absence of evidence in this regard. As far as the deceased in this case is concerned, admittedly, he was working as an Excise Officer at the time of his retirement, and therefore, the earning capacity of such a person would be much higher than what was that of an ordinary worker. Therefore, even M.A.C.A. No.146/2020 : 12 : if the monthly income is calculated by relying upon the said method, the amount adopted by the tribunal could be treated as a reasonable one. However, there is one aspect to be taken into consideration, as rightly pointed out by the learned counsel for the appellant. This is because, among the amount he was getting as a pension, Rs.300/- was intended for medical allowances, which was exclusively for the purpose of the appellant himself. Therefore, the same cannot be treated as the amount which was available for the dependency. Therefore, the said amount can be deducted and thus, the actual amount to be calculated as monthly income would come down to Rs.11,544/-. In the facts and circumstances of the case, the said amount can be accepted. 14. The learned counsel for the insurance company objected to the finding of the tribunal, making an addition of 15%. According to the learned counsel, the addition of 15% was contemplated only with respect to salaried employees against a regular post. It was pointed out that, in this case, the deceased was a retired person; therefore, he cannot be treated as a person who was engaged in a regular post with a regular monthly income. The learned counsel for the claimants opposes the said M.A.C.A. No.146/2020 : 13 : contention. 15. After considering the facts and circumstances of the case, I am not inclined to accept the contention raised by the appellant in this regard. Of course, it is true that he was not employed in a regular vacancy, but he retired from service after completing his tenure as a regular employee, and consequent to the services rendered by him, he was entitled to regular monthly income in the form of a pension which was fixed. Periodical increments consequent to the revision of pay, which was likely to take from time to time, was also his entitlement. Therefore, even though what was being received by the deceased was a pension, it has all the characteristics of a regular income from a regular post and it is subject to regular increments at periodical intervals. Therefore, I am of the view that this is a case in which future prospects can be added at the rate of 15%, and there is no legal infirmity in the finding of the tribunal in this regard. Therefore, I confirm the said finding as well. 16. Thus, while reassessing the compensation with the reduced monthly income of Rs.11,544/- by keeping all the other parameters adopted by the tribunal, the compensation amount M.A.C.A. No.146/2020 : 14 : would come to 9,55,872/-. The amount awarded by the tribunal under the head of loss of dependency is Rs.9,80,712/-. Thus, there is an excess compensation of Rs.24,840/-. 17. When moving on to the other heads, all the heads except the loss of consortium and loss of love and affection are in tune with the guidelines prescribed by the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi 2017(4) KLT 662]. As regards the loss of consortium, it is to be noted that the amount awarded was only Rs.40,000/- whereas the claimants being the wife and two children, were entitled to compensation at the rate of Rs.40,000/- each, thereby making a total amount of Rs.1,20,000/-. However, at the same time, it is to be noted that the tribunal awarded a further amount of Rs.1,00,000/- under the head of loss of love and affection. In the light of the observations made in United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780] when compensation is awarded for loss of consortium, no further amount ought to have been awarded for loss of love and affection. Therefore, an amount of Rs.1,00,000/- awarded by the tribunal is to be deducted even while enhancing the compensation under the head M.A.C.A. No.146/2020 : 15 : of loss of consortium as Rs.1,20,000/-. Consequent to such modification, an amount of Rs.20,000/- would be the excess compensation awarded by the tribunal [(1,20,000-40,000)1,00,000]. Thus, the total excess amount awarded by the tribunal would therefore come to Rs.44,840/- (24840+20000) and accordingly the total amount of compensation is refixed as Rs.19,41,197/- (1986037-44840). In the light of the aforesaid observations and findings, this appeal is allowed in part, by modifying the amount of compensation as Rs.19,41,197/- (Nineteen lakhs forty one thousand one hundred and ninety seven) and the said amount shall be deposited by the appellant/ 3[rd] respondent along with interest at the rate as ordered by the tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment, after adjusting the amount already deposited. Sd/ZIYAD RAHMAN A.A. JUDGE rpk/ncd