MACA No. 2508 of 2019

MACA NO. 2508 of 2019 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 6[TH] DAY OF JULY 2021 / 15TH ASHADHA, 1943** ## **MACA NO. 2508 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OPMV 317/2012 OF II ADDITIONAL MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA, IDUKKI** ## **APPELLANT/S:** ROYAL SUNDARAM GENERAL INSURANCE COMPANY LIMITED CHENNAI NOW REPRESENTED BY THEIR ZONAL HEAD, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600 002 BY ADVS. MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENT/S:** 1 ACHAMMA,W/O. JOSEPH, KUZHIKATTUKUNNEL HOUSE, MARIYAPURAM KARA, THANKAMANI VILLAGE ,PIN-685 602 2 SHAIJU,S/O. JOSEPH, KUZHIKATTUKUNNEL HOUSE, MARIYAPURAM KARA, THANKAMANI VILLAGE ,PIN-685 602 3 SHEEBA,D/O. JOSEPH, KUZHIKATTUKUNNEL HOUSE, MARIYAPURAM KARA, THANKAMANI VILLAGE ,PIN-685 602 4 K.M.RAJESH,KAKKATTU HOUSE, NERYAMANGALAM P.O., KOTHAMANGLAM,PIN-686 693 5 VIJU,7/27,MOLEKKUDIYIL HOUSE, INCHATHOTTY P.O., KOTHAMANGLAM,PIN-686 691 BY ADVS. SRI.S.SACHITHANANDA PAI, SRI.GEORGE MATHEW,SRI.M.D.SASIKUMARAN, SHRI.PRAVEEN S. SHRI.SUNIL KUMAR A.G, SRI.DIPU JAMES SHRI.MATHEW K.T., SHRI.GEORGE K.V., SMT.ELSA DENNY PINDIS **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2021, THE COURT ON 6.7.2021 DELIVERED THE FOLLOWING:** MACA NO. 2508 of 2019 2 ## **C.S.DIAS, J.** ---------------------------------------- ## **M.A.C.A.No.2508 of 2019 ---------------------------------------Dated this the 6[th] day of July, 2021** ## **JUDGMENT** The appellant - Insurance Company was the third respondent in OP(MV) No.317/2012 on the file of the Additional Motor Accidents Claims Tribunal-II, Thodupuzha. The respondents 1 to 3 in the appeal were the petitioners 1 to 3 and respondents 4 and 5 were the respondents 1 and 2 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 one Joseph, who was hit by a tipper lorry bearing registration No.KL-5/H-6478 on 23.4.2012 and MACA NO. 2508 of 2019 3 succumbed to the injuries. The first petitioner is the wife and petitioners 2 and 3 are his children. The second respondent was the owner and the third respondent was the insurer of the lorry. Hence, the petitioners claimed compensation from the respondents. 3. The respondents 1 and 2 contended that although the Police had filed a charge-sheet against the first respondent, he was later acquitted by the Jurisdictional Court on finding that he was not negligent in causing the accident. 4. The third respondent - Insurance Company filed a written-statement, inter-alia, contending that the petitioners had abandoned the deceased 10 years prior to the accident. Therefore, they have no right to claim compensation. Nevertheless, the third respondent admitted that the vehicle had a valid insurance coverage. It was also contended that the MACA NO. 2508 of 2019 4 deceased was an unauthorised in the passenger vehicle. 5. The Tribunal allowed the claim petition by holding that the respondents 1 and 2 were liable to pay compensation. 6. The respondents 1 and 2 challenged the award before this Court. This Court by judgment dated 7.9.2018 in MACA 3448/2015, allowed the appeal and set aside the award by remitting the matter back to the Tribunal for fresh consideration, principally to give the respondents 1 and 2 an opportunity to contest the proceedings on merits. 7. In the proceedings prior to remand, a witness was examined on the side of the petitioners and Exts A1 to A6 were marked. Similarly, Exts B1 and B2 were marked on the side of the third respondent. After remand, PW2 and RWs 1 and 2 were examined and Ext B3 was marked. MACA NO. 2508 of 2019 5 8. The Tribunal after re-appreciating the additional materials also, arrived at a conclusion that the deceased was not a passenger in the vehicle, but was a third party and, therefore, the third respondent was liable to indemnify the second respondent of his liability, which was fixed at Rs.6,43,500/- along with interest and costs. 9. Aggrieved by the award, the third respondent is now before this Court in the second round of litigation. 10. The principal ground of challenge in the memorandum of appeal is that the Tribunal has erroneously arrived at a contradictory finding by holding that the deceased was a third party and not a gratuitous passenger and also that the notional income of the deceased fixed was on the higher side. 11. Heard Sri.Mathews Jacob, the learned Senior Counsel appearing for the appellant, Sri.Sachithananda MACA NO. 2508 of 2019 6 Pai and Sri.George Mathew, the learned counsel appearing for the respondents. 12. On a perusal of the materials, it is seen that PW2 had categorically deposed that the accident occurred while the deceased was attempting to get into the lorry while the vehicle was negotiating a 'U' turn, but he fell down on the road and the driver did not see him and the rear tyre ran over him. In fact, the testimony of PW2 is contradictory to the testimony of PW1, who had stated that the deceased was standing on the road. Similarly, RW1 deposed that as the vehicle was with full load, the first respondent did not see the deceased standing on the left side of the road. RW2, an eye-witness, testified that the lorry hit the deceased while he was talking to an auto rickshaw driver. 13. The Tribunal on an appreciation of the oral testimonies of PW2, RWs1 and 2, came to the conclusion that the accident occurred solely on account 7 MACA NO. 2508 of 2019 of the negligence of the first respondent, who did not see the deceased standing on the road and the deceased was not a passenger in the vehicle. The testimonies of the above witnesses tallies and corroborates with the investigation conducted by the Police. Accordingly, it was held that the Insurance Company is liable to indemnify the liability of the owner of the vehicle. 14. The elaborate threadbare appreciation of facts by the Tribunal, especially after the remand, cannot be permitted to be re-agitated by the Insurance Company before this Court in the second round of litigation. Thus, I hold that there is no error or illegality in the finding arrived at by the Tribunal on the said point. 15. Now coming to the point regarding the income of the deceased. 16. The deceased was stated to be a casual MACA NO. 2508 of 2019 8 labourer. The Tribunal fixed his notional monthly income at Rs.4,500/-. In light of the ratio in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd [ (2011) 13 SCC** **236]** , I do not find that the notional income fixed by the Tribunal is on the higher side. Likewise, the compensation awarded under the heads loss of dependency, compensation under the conventional heads and compensation for pecuniary damages are all in line with the law laid down in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] –** **[(2009) 6 SCC 121]** and a host of subsequent decisions laid down by the Hon'ble Supreme Court. 17. The Honourable Supreme Court in **New India Assurance Co. Ltd. vs. Kiran Sing & Ors. :** 2004 (AIR) SCW 4212 has deprecated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and 9 MACA NO. 2508 of 2019 wasting enormous time and money. It is also observed that if such instances are brought to the notice of the court, the court would be obliged to dismiss such appeals with heavy cost apart from deprecating such parties. 18. It is to be borne in mind that the accident occurred on 23.4.2012. The Insurance Company is before this Court in the second round of litigation aggrieved by the findings of negligence and the notional income fixed the Tribunal. On an by appreciation of the pleadings and materials before me, I do not find any error in the compensation awarded by the Tribunal. It is trite that the Tribunals are permitted to do some guess work and also exercise its discretion to fix the reasonable and just compensation, for which there cannot be any strait jacket formula based on arithmetical precision. I find that the Tribunal has judicially exercised its powers based on the provisions 10 MACA NO. 2508 of 2019 in the Motor Vehicles Act, 1988 and the precedents of the Honourable Supreme Court and this Court while fixing the just compensation as per the impugned award. I do not find any justifiable ground in the memorandum of appeal warranting admission of the appeal, which will only be a wastage of judicial time and a harassment to the respondents 1 to 3/claimants. Following the ratio in **Kiran Sing** (supra), I hold that the appeal is devoid of any merit and does not warrant admission, therefore, is only liable to be dismissed at the threshold, which I do. sd/- **C.S.DIAS JUDGE** sks/2.7.2021