MACA No.1512/2015 & 1039/2013 (Dr. C.M. Mathew Choorackal & others vs Reliance General Insurance Co. Ltd. & Cholamandalam General Insurance Co. Ltd.)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, ``` ## **`1944`** ``` MACA NO. 1512 OF 2015 ``` ## **`AGAINST THE JUDGMENT IN OP(MV)662/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM`** ## **`APPELLANTS/PETITIONERS:`** - `1 DR.C.M.MATHEW CHOORACKEN AGED 61 YEARS CHOORACKAL HOUSE, COLLECTORATE P.O., KOTTAYAM.` - `2 NISHA C.MATHEW CHOORACKAL HOUSE, COLLECTORATE P.O., KOTTAYAM.` - `3 NIMA C.MATHEW CHOORACKAL HOUSE, COLLECTORATE P.O., KOTTAYAM.` - `4 NEHA C.MATHEW CHOORACKAL HOUSE, COLLECTORATE P.O., KOTTAYAM. BY ADVS. SRI.K.A.HASHIM SRI.M.I.ISMAIL` ## **`RESPONDENT/RESPONDENTS:`** ``` 1K.R.SURESHKUMAR KALLADA TOURS AND TRAVELS, NO.14, HOSUR MAIN ROAD,MADIWALLA, BANGALORE, KARNATAKA, PIN 560007. ``` - `2 MAHESH A.B. ATTUPURATHU, KODIKULAM P.O., THODUPUZHA, IDUKKI,PIN 685608.` - `3 THE RELIANCE GENERAL INSURANCE CO.LTD. THRISSUR, PIN 685584.` - `4 P.SAMPATHKUMAR NO.2/74A(NEW NO.2/141A), KOTTUR, ANJIAHALLI, PENNAGARAM, DHARMAPURI DISTRICT, PIN 636803.` **MACA.No.1512/15 & 1039/2013** ..2.. ``` 5A.MAHENDRAN (DELETED) 227 KOOTHAPADI, PENNAGARAM T.K.NO.2/74A, (NE2 NO.2/141A),KOTTUR, ANJIAHALLI, PENNAGARAM, DHARMAPURI DISTRICT, PIN 636803. *(THE FIFTH RESPONDENT IS DELETED FROM THE PARTY ARRAY, AS PER ORDER DATED 18/07/2022 IN IA 1/22 IN MACA 1512/2015) 6THE CHOLAMANDALAM GENERAL INSURANCE CO.LTD. DHARMAPURI, PIN 636803. BY ADVS. SRI.GEORGE CHERIAN SR. SRI.P.JACOB MATHEW SMT.LATHA SUSAN CHERIAN SRI.MATHEWS JACOB SR. SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.02.2023, ALONG WITH MACA.1039/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA.No.1512/15 & 1039/2013** ..3.. ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, ``` ## **`1944`** ## **`MACA NO. 1039 OF 2013`** ``` AGAINST THE JUDGMENT IN OP(MV)662/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` RELIANCE GENERAL INSURANCE CO. LTD. THRISSUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM. ``` ``` BY ADV SRI.GEORGE CHERIAN (THIRUVALLA) ``` ## **`RESPONDENTS/CLAIMANTS:`** - `1 DR. C.M.MATHEW CHOORACKEL CHOORACKAL (H), COLLECTORATE P.O., KOTTAYAM, PIN 686002.` - `2 NISHA C. MATHEW CHOORACKAL (H), COLLECTORATE P.O., KOTTAYAM, PIN 686002.` - `3 NIMA C.MATHEW CHOORACKAL (H), COLLECTORATE P.O., KOTTAYAM, PIN 686002.` - `4 NEHA C.MATHEW CHOORACKAL (H), COLLECTORATE P.O., KOTTAYAM, PIN 686002.` - `5 P.SAMPATHKUMAR NO. 2/74A (NEW NO.2/141A), KOTTUR, ANJIAHALLI, PENNAGARAM, DHARMAPURI DISTRICT, PIN-636810.` - `6 A.MAHENDRAN (DELETED) 227 KOOTHAPADI, PENNAGARAM T.K., DHARMAPURI DISTRICT, PIN-636810.` - `7 THE CHOLAMANDALAM GENERAL INSURANCE CO. LTD. DHARMAPURI, PIN-636810.` ``` RESPONDENT NO.6 IS DELETED FROM THE PARTY ARRAY ``` **MACA.No.1512/15 & 1039/2013** **==> picture [20 x 8] intentionally omitted <==** ``` AT THE RISK OF APPELLANT VIDE ORDER DATED 17.11.2014 IN IA NO.2785/13 IN MACA 1039/13 BY ADVS. SRI.K.A.HASHIM SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME BEEN FINALLY HEARD ON 23.02.2023, ALONG WITH MACA.1512/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA.No.1512/15 & 1039/2013** ..5.. ## **JUDGMENT** ## **`[MACA Nos.1512/2015, 1039/2013]`** On 27.06.2010, when late Mercy Mathew was travelling as a paid passenger in a carriage operated by the 1[st] respondent M/s Kallada Tours and Travels, it hit against a stationary lorry and she suffered serious injuries; unfortunately succumbing to it the very next day. She was only 54 years of age at the time of the accident, conducting an Eye Clinic and practicing as a consulting Doctor; and her legal heirs, namely, the appellants in MACA.No.1512/2015 filed OP(MV)No.662/2011 before the Motor Accidents Claims Tribunal, Kottayam (‘Tribunal’ for short), seeking a compensation of Rs.47,00,000/-, but which was allowed only to the extent of Rs.26,20,000/-. They assail the compensation as being inadequate and seek that it be enhanced. 2. That said, when the learned Tribunal issued the Award, it held not only the driver of the bus - in which the deceased was travelling – to be negligent, but also the lorry, which was parked; and apportioned the liability to pay compenstion between them as being 70% and 30% respectively. 3. The Reliance General Insurance Company Ltd., **MACA.No.1512/15 & 1039/2013** ..6.. which insured the bus in question, has filed MACA.No.1039/2013 assailing the finding of contributory negligence against its driver, as also the quantum of compensation awarded by the Tribunal. 4. I have heard Sri.K.A.Hashim – learned counsel appearing for the appellants in MACA.No.1512/2015; Smt.K.S.Santhi – learned Standing Counsel appearing for the Reliance General Insurance Company who is the appellant in MACA.No.1039/2013; and Sri.P.Jacob Mathew, learned Standing Counsel appearing for Cholamandalam General Insurance Co.Ltd - which is arrayed as the 6[th] respondent in MACA No.1512/2015 and 7[th] respondent in MACA No.1039/2013. 5. Though I notice from the files that respondent Nos. 2, 3 and 5 in MACA No.1512/2015 have not been properly served., it is conceded by the learned Standing Counsel for the Insurance Companies that their clients alone are responsible for honouring the compensation, without any claim being made by them agianst the said respondents. It will, therefore, justify me to dispose of these appeals in their absence, since it would cause no prejudice whatsoever. 6. Before I go on to assess the issues impelled by the parties, it is conceded at the Bar that, with respect to the same **MACA.No.1512/15 & 1039/2013** ..7.. accident, another MACA had been decided by a learned Judge of this Court, namely MACA No. 2761/2014, in which, the finding of contributory negligence by the Tribunal, as mentioned above, has been affirmed. Smt.K.S.Santhi – learned Standing Counsel for Reliance General Insurance Company, affirmed this and hence, conceded that her client would not be in a position to project this contention any further. 7. Therefore, all which survives in this case is an assessment of the rival contentions of the parties with respect to the compensation awarded to the legal heirs of the deceased. 8. While Sri.K.A.Hashim – learned counsel for the legal heirs of the deceased, argued that the notional income adopted by the Tribunal in favour of the deceased was insufficient; Smt.K.S.Santhi – learned Standing Counsel for the Reliance General Insurance Company, argued that it was excessive. 9. In fact, Smt.K.S.Santhi also assailed the Award with respect to the compensation awarded by the Tribunal under other heads, including ‘Pain and Sufferings’, ‘Loss of Love and Affection’, saying that, they were both impermissible; while Sri.K.A.Hashim additionally argued that the compensation **MACA.No.1512/15 & 1039/2013** ..8.. under the head ‘Loss of Consortium’ ought to have been Rs.1,60,000/-, and not Rs.30,000/- as awarded. 10. I have considered the afore submissions on the touchstone of the evidence and documents on record. 11. I notice from the records that, the learned Tribunal has adopted Rs.25,000/- as the notional income of the deceased. I cannot find any error in this because, this is the figure that is reflected in Ext.A5 – Income Tax Assessment Report of the deceased for the period 2010-2011. Taking note of the fact that the accident happened in the year 2010, this was the safest yardstick that could have been adopted by the Tribunal and obviously, hence, it finds my approval. 12. However, while computing the compensation for ‘Loss of Dependency’, the learned Tribunal erred in not adding 10% as the future prospects to the income of the deceased; and to that extent, it cannot be approved. 13. This assumes importance because, Smt.K.S.Santhi argues that the Tribunal acted mistakenly in having deducted only one fourth as the personal expenses; while Sri.K.A.Hashim argued that not more than that could have been deducted. The law in this regard is well settled, that the percentile of personal expenses will go by the number of dependents of the **MACA.No.1512/15 & 1039/2013** ..9.. deceased. There is no dispute that the children of the deceased are depended on her, but the contest is as to whether the first claimant, namely her husband, can be so reckoned. Smt.K.S.Santhi argues that the husband of the deceased is a Doctor and hence not capable of being treated as a dependent. Sri.K.A.Hashim – learned counsel for the claimants contended to the contrary, saying that he was not working. 14. When I examine the written statement filed by the Reliance General Insurance Company Ltd., they took the stand that none of the claimants can be seen to be dependents of the deceased; and then, with particular reference to the husband, they asserted that he is a professional, having an independent income, who is managing the family. 15. In fact, the learned counsel for the claimants, virtually conceded that at the time of the accident, the husband of the deceased was working, but that he stopped it immediately thereafter, on account of the mental trauma. The claim made by the claimants also do not specifically say that husband of the deceased was dependent on her financially; and in such perspective, I find favour with the submission of Smt.K.S.Santhi, that an amount equal to one third ought to **MACA.No.1512/15 & 1039/2013** ..10.. have been deducted from the income of the deceased towards her personal expenses. This is in consonance with the postulations of the Hon’ble Supreme Court in _**Sarla Varma v. Delhi Transport Corporation**_ [2010 (2) KLT 802]. 16. The afore being so concluded, it is without doubt that the Tribunal ought to have granted Rs.1,60,000/- towards ‘Loss of Consortium’, but it has only granted Rs.30,000/-; while it has awarded Rs.15,000/- and Rs.75,000/- under the heads ‘Pain and Sufferings and ‘Loss of Love and Affection’, which is impermissible going by _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)] and _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur**_ [(2021) 11 SCC 780]. 17. Finally, when one runs through the other heads of compensation awarded by the Tribunal, it is without doubt that it ought to have granted Rs.15,000/- each towards ‘Funeral Expenses’ and ‘Loss of Estate’ of the deceased and not Rs.6,000/- and Rs.10,000/- as presently awarded, going by **Pranay Sethi** ( _supra_ ) In the afore circumstances, these appeals are disposed of in the following manner: a. The compensation under the head ‘Loss of **MACA.No.1512/15 & 1039/2013** ..11.. Consortium’ is enhanced to Rs.1,60,000/-, from Rs.30,000/- as awarded by the Tribunal. b The compensation under the head ‘Loss of Dependency’ is modified to Rs.24,20,000/-. c. The compensation under the head ‘Funeral Expenses’ is enhanced to Rs.15,000/-, from Rs.6,000/- now awarded. d. The compensation under the head ‘Loss of Estate’ is enhanced to Rs.15,000/-, from Rs.10,000/- now granted. e. The compensation under the heads ‘Pain and Sufferings’ and ‘Loss of Love and Affection’ are both deleted. Consequently, the claimants will be entitled to recover the compensation, as modified by this Court from the Reliance General Insurance Company Ltd. and the Cholamandalam General Insurance Co.Ltd, in the proportion as ordered by the Tribunal, along with interest at the rate of 7.5% per annum from the date of claim until it is realised. The appellant will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts. Needless to say, while calculating the interest as afore on the enhanced amounts under the heads ‘Loss of Estate’, ‘Loss of Consortium’ and ‘Funeral Expenses’, a period of 835 days - **MACA.No.1512/15 & 1039/2013** ..12.. being the delay caused by the appellants in MACA No.1512/2015 in filing the said appeal - shall be deducted. Sd/- **DEVAN RAMACHANDRAN , JUDGE** ACR