MACA No. 1891 of 2021 – United India Insurance Company Ltd. v. Lisy, Suryamol, Jayaram, Shefeek H, The Manager, Oriental Insurance Co. Ltd., Esakkiraj G, and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** ## **FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943** ## **MACA NO. 1891 OF 2021** **AGAINST THE AWARD DATED 08.02.2021 IN OPMV NO.314/2016 OF MUNSIFF COURT ,PATHANAMTHITTA, PATHANAMTHITTA** ## **APPELLANT/6TH RESPONDENT :** **UNITED INDIA INSURANCE COMPANY LIMITED, REGIONAL OFFICE, HOSPITAL ROAD ERNAKULAM, COCHIN-682 035, REPRESENTED BY ITS REGIONAL MANAGER.** **BY ADV JOHN JOSEPH VETTIKAD** ## **RESPONDENTS/ CLAIMANTS/ RESPONDENT NOS.1 TO 5 AND 7 IN O.P.:** **1 LISY, AGED ABOUT 46 YEARS, M/O. (LATE) SUJITH, ALUMVILAYIL HOUSE, CHIRANIKKAL, PARAKKODU P.O, ADOOR VILLAGE AND TALUK, PATHANAMTHITTA DISTRICT-691 554 2 SURYAMOL, AGED 28 YEARS S/O. (LATE) SUJITH, ALUMVILAYIL HOUSE, CHIRANIKKAL, PARAKKODU P.O, ADOOR VILLAGE AND TALUK, PATHANAMTHITTA DISTRICT-691 554** **3 JAYARAM, S/O. RAVINDRAN PILLAI, CHIRAYIL PUTHENVEEDU, KOVVOR, ARINALLOOR P.O, KOLLAM DISTRICT-690 538** **4 SHEFEEK H, S/O. HANEEFA M.K, RAFEEK MANZIL, MATTAPPALLY, NOORANADU P.O, ALAPPUZHA DISTRICT-690 504** **5 THE MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., E.C. NANGYARKULANGARA, M/S. GOPAN AUTOMOBILE COMPLEX, NANGYARKULANGARA P.O, ALAPPUZHA DISTRICT, KERALA -690513** **6 ESWARAN B, S/O. BALAKRISHNAN, 33/16, NORTH STREET,** M.A.C.A.No.1891/2021 -:2:- **KUMUANTHAPURAM, KADAYANALLUR P.O, THENKASHI-627 751 7 ESAKKIRAJ G, S/O. GOVINDARAJ, 15/A- VADAKKUVILAI COLONY STREET, KADAYANALLUR P.O,THENKASHI- 627 751 8 MATHEW DANIEL, S/O. SAMUEL, MANGALATHU PADEETHATHIL, ELAMPALLIL, PARAKOOTTAM P.O, ADOOR-691 551 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1891/2021 -:3:- Dated this the 23[rd] day of July,2021 ## **J U D G M E N T** The appellant - insurer - was the sixth respondent in O.P (MV)No.314/2016 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. The respondents 1 and 2 in the appeal were the claimants and the respondents 3 to 8 were respondents 1 to 5 and 7 before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of 'Sujith'(deceased). It was their case that, on 18.02.2016, while the deceased was riding a motorcycle through the Adoor-Pathanapuram road, a tipper lorry bearing registration No.KL_23/D-3076(in short, tipper lorry) came from the opposite side and hit the motorcycle of the deceased. The tipper lorry was driven by the second respondent. Immediately, after M.A.C.A.No.1891/2021 -:4:- the deceased fell on the road another Mini lorry bearing registration No.TN-76/M-1069(in short, Mini lorry) came from behind and ran over the deceased. The Mini lorry was also driven negligently by the fifth respondent. The deceased was only 22 years of age and was a welder by profession and earning a monthly income of Rs.26,000/-(Rs.875/-per day). The deceased was the sole breadwinner of the family because his father had deserted the family. The sudden and untimely death of the deceased has put the petitioners in untold miseries. The accident occurred due to the composite negligence of the second and fifth respondents, who drew their respective vehicles in a rash and negligent manner. The first respondent was the registered owner of the Tipper lorry and the third respondent was its insurer. The fourth respondent was the registered owner of the Mini lorry and the sixth respondent was its insurer. Accordingly, the petitioners claimed a compensation of Rs.40,00,000/- from the M.A.C.A.No.1891/2021 -:5:- respondents. 3. Subsequent to the filing of the claim petition, an application was filed as I.A.No.2186/2016 and the additional seventh respondent was impleaded, stating that he was the registered owner of the Tipper lorry. 4. Respondent Nos.3 to 5 did not contest the proceeding and they were set ex parte. Respondent Nos.1 and 6 and additional respondent No.7 contested the proceeding. 5. The first respondent filed a written statement, refuting the allegation that he was the owner of the Tipper lorry. It was his defence that he had sold the said vehicle to the additional seventh respondent. 6. The second respondent, the driver of the Tipper lorry filed a written statement denying the allegation that he was negligent in causing the accident. According to him, the accident was caused by the Mini lorry driven by the fifth respondent, who M.A.C.A.No.1891/2021 -:6:- ran over the deceased. 7. The sixth respondent(appellant)/the insurer of the Mini lorry filed a written statement, contending that the accident was caused on account of the negligence of the deceased. He fell from the bike in front of the Mini lorry, which led to the accident. Therefore, the sixth respondent cannot be held liable for the accident. 8. The additional seventh respondent filed a written statement, admitting that he was owner of the Tipper lorry. However, it was contended that the Tipper lorry was insured with the third respondent. 9. The petitioners examined PW1 and marked Exts.A1 to A10 in evidence. The respondents did not let it any evidence. 10. The Tribunal allowed the claim petition by permitting the petitioners to realise an amount of Rs.32,55,200/-. The sixth respondent-insurer of the Mini lorry was directed to pay the compensation M.A.C.A.No.1891/2021 -:7:- amount and recover 50% of the compensation amount from the third respondent-the insurer of the Tipper lorry. 11. Aggrieved by the direction to the sixth respondent to pay the amount and recover half the amount of the compensation from the third respondent, and also by the quantum of compensation awarded by the Tribunal, the sixth respondent-insurer has approached this Court. 12. Heard; Adv.Sri. John Joseph Vettikad, the learned counsel appearing for the appellant/sixth respondent. 13. The principle grounds of challenge in the Memorandum of appeal are: (i) the direction of the Tribunal i.e., the sixth respondent should pay the compensation amount and recover 50% from the third respondent is erroneous. (ii) the quantum of compensation fixed by M.A.C.A.No.1891/2021 -:8:- ## the Tribunal is on the higher side. 14. Ext.A8, final report filed by the Adoor Police Station in Crime No.478/2016 substantiates that there was negligence on the part of the respondents 2 and 5, the drivers of the Tipper lorry and the Mini lorry. Undisputedly, the appellant/sixth respondent and the third respondent were the insurers of the said vehicles. As there was no violation of policy condition, the said Insurance Companies are liable to indemnify the owners for the liability that has occurred. 15. In **Khenyei v. New India Assurance Co. Ltd** . [2015 (3) KHC 70] the Hon'ble Supreme Court has held that the claimants are at liberty to sue any or all of the joint tortfeasors for recovery of compensation. 16. In the instant case, the petitioners had impleaded the driver, owner and insurer of both the Tipper lorry and Mini lorry. 17. The Tribunal following the law in M.A.C.A.No.1891/2021 -:9:- **Khenyei** (supra), has directed the sixth respondent to pay the compensation amount to the petitioners and recover 50% of the amount from the third respondent-the insurer of the Tipper lorry. The said course adopted by the Tribunal can never be said erroneous or wrong. Moreover, no prejudice is likely to be caused to the appellant/sixth respondent because it can easily recover the amount from the third respondent which is also a Public Sector Insurance company instead of the petitioners seeking execution proceedings against both the companies to realise the compensation amount. Hence, I hold that there is no illegality in the above direction passed by the Tribunal. Hence, I confirm the said direction of the Tribunal. 18. Coming to the next ground of challenge, whether the quantum of compensation fixed by the Tribunal is on the higher side. 19. The deceased was aged only 22 years. The petitioners claimed that the deceased was a welder by M.A.C.A.No.1891/2021 -:10:- profession. The petitioners examined PW1, who was the Proprietor of a welding workshop named 'Thundil Engineering Works' and proved Ext.A10 salary certificate. PW1 testified that the deceased was employed with him as a skilled roof top worker and used to earn a daily wage of Rs.875/- and the deceased used to work for eight hours a day and also did overtime work. 20. The Tribunal, on evaluating the oral testimony of PW1 and Ext. A10 certificate, arrived at the conclusion that the testimony of PW1 was worthy and believable. In such circumstances, the income of the deceased was fixed at Rs.875/- per day for 24 days in a month. 21. Accordingly, the Tribunal fixed the notional income of the deceased at Rs.21,000/-. The fact finding exercise conducted by the Tribunal is absolutely justifiable and correct. I do not find any error in the notional income of the deceased fixed by the Tribunal. M.A.C.A.No.1891/2021 -:11:- 22. It is trite law that the Tribunals are permitted to do some guess work and exercise their discretion in fixing the reasonable and just compensation, for which there cannot be formula in any straight jacket arithmetical precision. 23. With respect to the other heads of compensation, I find that the Tribunal has followed the ratio of the Hon'le Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] and **United India Insurance Company Ltd. v. Satinder Kaur and others** [2020(3)KHC 760]. 24. The Hon'ble Supreme Court in **New India Assurance Company Ltd. v. Kiran Singh and others** [2004 AIR SC 4212] has deprecated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. It is also observed that such instances are brought to the notice M.A.C.A.No.1891/2021 -:12:- of the court, the court would be obliged to dismiss such appeals with heavy costs apart from the deprecating such practice. 25. On an overall appreciation of the impugned award and the materials on record and the elaborate findings rendered by the Tribunal, I do not find any error or illegality warranting interference by this Court in exercise of its appellate jurisdiction. In the said circumstances, I am of the considered opinion that the admission of appeal would be only a wastage of judicial time and harassment to the petitioners/respondents 1 and 2/claimants. Following the ratio in **Kiran Singh** (supra), I hold that the appeal is devoid of any merits and does not warrant admission. Therefore, I dismiss the appeal at threshold. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge