MACA No. 2243/2016 & CO No. 76/2020: M/S Reliance General Insurance Co. Ltd. v. Pedikakandi Suharabi & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945 ``` ## **`MACA NO. 2243 OF 2016`** ``` AGAINST THE AWARD DATED 12.04.2016 IN OP(MV) NO.29/2011 OF MOTOR ACCIDENTS ``` ``` CLAIMS TRIBUNAL, MANJERI ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` M/S RELIANCE GENERAL INSURANCE CO. LTD., BRANCH KOZHIKODE, REPRESENTED BY IT’S LEGAL CLAIMS MANAGER, RELIANCE GENERAL INSURANCE COMPANY LIMITED,ERNAKULAM. BY ADVS. THAPAS VARMA RESPONDENTS/CLAIMANTS & RESPONDENTS 1& 2: 1PEEDIKAKANDI SUHARABI, D/O. BEERAN, PEEDIKAKANDI(H) P.O., POOKKOTTOOR, ERNAD TALUK,MALAPPURAM DISTRICT. 2PATTIKKATTU SAKEENA (MINOR) D/O. LATE PATTIKKATTU USMAN, REPRESENTED BY THEIR GUARDIAN MOTHER SUHARABI, PEEDIKAKANDI(H) P.O., POOKOTTOOR,ERNAD TALUK, MALAPPURAM DISTRICT. 3PATTIKKATTU IJAS (MINOR) S/O. LATE PATTIKKATTU USMAN, REPRESENTED BY THEIR GUARDIAN MOTHER SUHARABI, PEEDIKAKANDI (H) P.O., POOKOTTOOR,ERNAD TALUK, MALAPPURAM DISTRICT. 4PATTIKKATTU FARSANA (MINOR) D/O. LATE PATTIKKATTU USMAN, REPRESENTED BY THEIR GUARDIAN MOTHER SUHARABI, PEEDIKAKANDI(H) P.O., POOKOTTOOR,ERNAD TALUK, MALAPPURAM DISTRICT. 5PALENPADIYAN PATHUMMA, D/O. LATE MAYIN AND W/O. LATE MOIDEENKUTTY, PATTIKKATTU HOUSE, KADANNAMANNA, MANKADA,PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 6ASHRAF P. S/O. ALI HAJI,PANTHAPPULLAN HOUSE,VALIYORA, VENGARA,TIRUR TALUK, MALAPPURAM DISTRICT. 7PANTHAPPULAN ALI HAJI, S/O.MOHAMMED HAJI,PROP. HOTEL NEW RELAX,VEGARA, RESIDING AT PANTHAPPULAN HOUSE,VALIYORA, VENGARA,TIRUR TALUK, MALAPPURAM DISRICT. BY ADVS. SRI.PRATHEESH.P SRI.K.ABDUL JAWAD SRI.ABDUL JAWAD K. SMT.A.GRANCY JOSE SHRI.THAYYIB SHA P.S. SRI.M.K.PRASANTH KUMAR THIS APPEAL HAVING COME UP FOR HEARING ON 20.02.2024, ALONG WITH CO.76/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945 ``` ``` CO NO. 76 OF 2020 ``` ``` AGAINST THE AWARD DATED 12.04.2016 IN OP(MV) NO.29/2011 OF MOTOR ACCIDENTS ``` ``` CLAIMS TRIBUNAL, MANJERI ``` ## **`CROSS OBJECTORS/RESPONDENTS 1 TO 5/CLAIMANTS:`** ``` 1PEEDIKAKANDI SUBARABI, AGED 45 YEARS D/O. BEERAN, PEEDIKAKANDI HOUSE, POOKOTTOOR P.O, EMAD TALUK, MALAPPURAM DISTRICT-676 517 2PATTIKKATTU SAKEENA, AGED 26 YEARS D/O.LATE PATTIKKATTU USMAN, PEEDIKAKANDI HOUSE, POOKOTTOOR P.O, EMAD TALUK, MALAPPURAM DISTRICT-676 517 3PATTIKKATTU IJAS, AGED 21 YEARS S/O. LATE PATTIKKATTU USMAN, PEEDIKAKANDI HOUSE, POOKOTTOOR P.O, EMAD TALUK, MALAPPURAM DISTRICT-676 517 4PATTIKKATTU FARSANA, AGED 19 YEARS D/O. LATE PATTIKKATTU USMAN, PEEDIKAKANDI HOUSE, POOKOTTOOR P.O, EMAD TALUK, MALAPPURAM DISTRICT-676 517 5PALENPADIYAN PATHUMMA, AGED 79 YEARS D/O. LATE MOIDEENKUTTY, PATTIKKATTU HOUSE, KADANNAMANNA, MANKADA, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN-679 322 BY ADVS. PRATHEESH.P SHRI.THAYYIB SHA ``` ## **`RESPONDENTS/APPELLANT & RESPONDENTS 6 & 7:`** ``` 1M/S RELIANCE GENERAL INSURANCE CO. LTD., BRANCH KOZHIKODE, REP. BY ITS LEGAL CLAIMS MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., ERNAKULAM, PIN-682 024. 2ASHRAF P, S/O. ALI HAJI, PANTHAPPULAN HOUSE, VALIYORA, VENGARA, TIRUR TALUK, MALAPPURAM DISTRICT-676 304 ``` ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 3 ``` ``` 3PANTHAPPULAN ALI HAJI, S/O. MOHAMMED HAJI, PROPRIETOR HOTEL NEW RELAX, VEGARA, PANTHAPPULAN HOUSE, VALIYORA, VENGARA , TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676 304 ``` ``` BY ADV. ``` ``` SRI.R.AJITH KUMAR ``` ``` THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 20.02.2024, ALONG ``` ``` WITH MACA.2243/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 4 ``` ## **JUDGMENT** **Dated this the 20[th] day of February, 2024.** The appeal and Cross Objection are filed challenging an award passed by Motor Accidents Claims Tribunal, Manjeri (for short ‘the Tribunal’) on 12.04.2016 in O.P(M.V) No.29/2011. The appellant is the insurer of the offending vehicle which is a Maruti Zen Car bearing Registration No.KL-10-Q-1501 which allegedly was driven by the 1[st] respondent in a rash and negligent manner. The car was allegedly owned by the 2[nd] respondent. 2. Cross Objection has been filed by claimants in the above Original Petition who are legal representatives of one Mr.Pattikkattu Usman who succumbed to the injuries sustained by him in the motor accident. 3. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 to 5 and ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 5 ``` respondents 1 to 3 in accordance with their status in the Original Petition. 4. The facts of the case relevant for disposal of this appeal are summarised hereinbelow:- At about 4 p.m on 04.03.2008, while Mr.Pattikkattu Usman was travelling in his motorcycle from Manjeri to Anakkayam through Manjeri-Malappuaram public road, a Maruti Zen Car bearing Registration No.KL-10-Q-1501 driven by its driver in a rash and negligent manner and excessive speed hit against the motorcycle and thereby he sustained serious injuries. He was rushed to District Hospital, Manjeri for treatment and therefrom was referred to Medical College Hospital, Calicut. He succumbed to the injuries on 06.03.2008. The motor accident was occurred due to the rash and negligent driving by the driver of the Maruti Zen Car, who was arrayed in the Original Petition as the 1[st] respondent. The registered owner of the car was arrayed as the 2[nd] respondent and its insurer as the 3[rd] respondent. All respondents were alleged as jointly and ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 6 ``` severally liable to compensate the petitioner for a sum of `14,00,000/-. 5. All respondents were served with notice. 1[st] and 2[nd] respondents did not turn up to contest the Original Petition and accordingly were declared as ex parte. 3[rd] respondent filed written statement before the Tribunal denying insurance coverage for the Maruti Zen Car bearing Registration No.KL10-Q-1501 as on date of the motor accident. It was contended that the 3[rd] respondent has no contractual liability to indemnify the 2[nd] respondent since the policy issued has coverage only from 01.05.2008 till 30.04.2009. It was contended that a policy was issued for the vehicle by National Insurance Company Ltd. earlier and that was expired on 16.02.2008. Compensation claimed was also disputed for its exorbitant nature and lack of basis. Original Petition was sought to be dismissed with costs. 6. Before the Tribunal, Exts.A1 to A9 were marked in evidence by the petitioners and Ext.B1 by the 3[rd] respondent. ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 7 ``` The Tribunal appreciated the documentary evidence adduced by the parties and arrived at a finding that the motor accident in question was occurred due to the rash and negligent driving of the Maruti Zen Car bearing Registration No.KL-10-Q-1501 by the 1[st] respondent. The Tribunal also found from the certificate of postmortem examination marked in evidence as Ext.A4 that the victim died due to the injuries sustained in the motor accident. Accordingly, the Tribunal found the petitioners, who are legal representatives of the deceased, entitled to get compensation. A sum of `17,70,500/- was arrived at as the compensation payable and the 3[rd] respondent was directed 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 deposit. Proportionate costs was also allowed. 7. Challenging the quantum stood awarded by the Tribunal as compensation in favour of the petitioners and the liability fixed on them, the 3[rd] respondent has approached this Court by filing the appeal on hand. The claimants in the ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 8 ``` Original Petition have also approached this Court by filing the Cross Objection seeking for modification of the compensation by way of enhancement. 8. According to the learned counsel, in the written statement filed by the 3[rd] respondent before the Tribunal, policy coverage of the Maruti Zen Car bearing Registration No. KL-10Q-1501 as on date of accident was denied for the reason that policy issued covers only a period from 01.05.2008 till 30.04.2009. The certificate of insurance issued for the vehicle was also produced before the Tribunal and got marked in evidence as Ext.B1 and it is convinced therefrom that the policy stands issued for the vehicle is valid only for a period from 01.05.2008 till 30.04.2009. Despite marking of the policy in evidence as Ext.B1, the Tribunal fastened liability on the 3[rd] respondent based on a cover note. According to the learned counsel, the cover note though produced by him before the Tribunal, it failed to marked the same in evidence. According to him, despite marking of the document in evidence, the ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 9 ``` Tribunal relied on it and passed an order fixing liability upon the 3[rd] respondent. 9. The learned counsel for the 3[rd] respondent contended on the contrary that the compensation stood awarded by the Tribunal is exorbitant. According to him, petitioners being the legal representatives of the deceased are not entitled to get compensation towards loss of love and affection and pain and suffering. he Tribunal awarded `4,50,000/- and `10,000/- respectively as compensation under those heads and therefore, is erred and unjustified. 10. The learned counsel has pointed out further that the Tribunal has awarded compensation in favour of the petitioners under the conventional heads, but in total disregard of the direction issued by the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)]** . According to him, as per the dictum in **Pranay Sethi** supra petitioners are entitled to get only `15,000/- each as compensation under the heads ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 10 ``` loss of estate and funeral expenses respectively and `40,000/per head, as compensation towards loss of consortium. According to him, the Tribunal awarded excess sums under those heads and therefore, interference is warranted. 11. The learned counsel contended furthermore that 50% is added by the Tribunal to the monthly income fixed by it, having due regard to the loss of future prospects of the victim of the motor accident on account of his untimely death. According to him, the deceased being aged 35 years, the Tribunal ought to have added 40% to the monthly income in consideration of loss of future prospects, as directed in **Pranay Sethi** supra. Thus the learned counsel seeks for modification of compensation in the above backdrop. 12. The learned counsel representing the cross objectors contended on the contrary that the petitioners are entitled to get compensation for pain and sufferings and loss of love and affection. According to them, the petitioners are also entitled to get excess sums than that was awarded as compensation ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 11 ``` towards loss of consortium. 13. Sri.Abdul Jawad, the learned counsel advanced arguments on behalf of respondents 1 and 2, supporting the arguments of the learned counsel for the petitioners. According to him, a valid policy exists for the offending vehicle covering the date of the motor accident and it is established from the cover note issued by the 3[rd] respondent in favour of the insured. 14. This Court is convinced on a perusal of the written statement filed by the 3[rd] respondent that the insurance coverage of the offending vehicle was denied. A policy was admittedly issued for the offending vehicle but it was valid only for a period from 01.05.2008 till 30.04.2009. An interlocutory application was filed by the petitioners before the Tribunal as I.A.No.4565/2012 seeking for a direction to the insurer to produce the cover note which was issued in favour of the insured. 3[rd] respondent failed to produce the cover note contending that it was lost from their custody. According to them, an intimation was also given to the police regarding it’s ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 12 ``` loss. The intimation according to them was filed only on 02.07.2008, a long time much later to the motor accident in question. Therefore, it appears that the 3[rd] respondent admits the issuance of cover note in favour of the insured but only contended that it was lost from their custody. In the above circumstances, the Tribunal found that the offending Maruti Zen car was having valid insurance coverage at the relevant time of the motor accident and thereby fastened liability on them to indemnify the insured. The fixation of liability by the Tribunal on the 3[rd] respondent is therefore, maintained. 15. Challenge was also raised against the quantum of compensation arrived at by the Tribunal as payable in favour of the petitioners. The contention was that excess sum was awarded by the Tribunal in favour of the petitioners. 16. It has been settled by the Apex Court that the legal representatives of the deceased victim of the motor accident are not entitled to get compensation for pain and sufferings and loss of love and affection. Therefore, the Tribunal is unjustified ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 13 ``` in awarding compensation under the above heads. 17. As held in **Pranay Sethi** supra, each petitioners are entitled to get `40,000/- towards loss of consortium. Petitioners were five in numbers and therefore `2,00,000/(`40,000/- x 5) is payable under that head. Petitioners are also entitled to get `15,000/- as compensation respectively under the heads loss of estate and funeral expenses and the same is awarded accordingly. 18. The monthly income was fixed by the Tribunal as `5,000/- in a context where the petitioner failed to adduce any evidence to establish his occupation and monthly income. It was a notional fixation but the sum fixed appears inadequate and unreasonable. The motor accident being occurred in the year 2008, this Court finds every justification in refixing the monthly income as `7,000/- on the basis of the fixation of monthly income by the Apex Court in the case of a coolie worker in **vs. Ramachandrappa Manager, Royal** ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 14 ``` ## **Sundaram Alliance Insurance Company Limited** **[(2011) 13 SCC 236].** Having due regard to the untimely death of the victim in the motor accident and his age as 35 years, 40% is added to the monthly income in consideration of loss of future prospects. Thus, `9,800/- is arrived at (`7,000/+ 40% of `7,000/-). Multiplier appropriate to 35 years has been correctly taken by the Tribunal as ‘16’ and that is maintained. Deduction towards personal expenditure was taken by the Tribunal as ¼[th] and that is also maintained. 19. Compensation for dependency when calculated afresh on the basis of the modified factors, `14,11,200/- (`9,800/- x 12 x 16 x ¾) is arrived at. `500/- more is awarded towards damages to clothing and `5,000/- stood awarded towards transportation expenses is maintained. Interest rate is also modified as 7.5%. 20. In the above manner of calculation afresh, petitioners will get `16,47,200/- (Rupees Sixteen Lakh Forty Seven Thousand Two Hundred only) (`14,11,200 + `15,000/- + ``` MACA NO.2243/2016 & C.O NO.76/2020 ``` ``` 15 ``` `15,000/- + `2,00,000/- + `5,000/- + `1,000/-) as compensation, instead of `17,70,500/- stood awarded by the Tribunal with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent shall deposit the compensation with interest accrued on it at the rate fixed as above and proportionate costs as awarded by the Tribunal, within a period of two months from the date on which a certified copy of this judgment is received. The amount shall be disbursed in favour of the petitioners in accordance with the directions issued by the Tribunal in the impugned award as well as the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A and Cross Objection are allowed in part accordingly. **JUDGE** ``` JJ ```