M.A.C.A No.2088/2009 & CO No.150/2014 (The Oriental Insurance Co. Ltd. v. Chandra Mohan and others)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA,** ## **1943** **MACA NO. 2088 OF 2009** **AGAINST THE AWARD IN O.P(M.V) 662/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/5TH RESPONDENT:** THE ORIENTAL INSURANCE CO.LTD., COCHIN, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI, SC FOR INSURANCE COMPANY ## **RESPONDENTS/CLAIMANTS:** **1 C.CHANDRA MOHAN, NEDUVELIL HOUSE, VALANJAMBALAM, RAVIPURAM ROAD,, COCHIN-16, ERNAKULAM VILLAGE, KANAYANOOR TALUK,, ERNAKULAM DISTRICT. **[DIED] **2 SREELATHA CHANDRAMOHAN, W/O.CHANDRA MOHAN, NEDUVELIL HOUSE, VALANJAMBALAM, RAVIPURAM ROAD, COCHIN-16, ERNAKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. **3 LAKSHMI CHANDRAMOHAN, D/O.CHANDRAMOHAN, NEDUVELIL HOUSE, VALANJAMBALAM, RAVIPURAM ROAD, COCHIN-16, ERNAKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. **LEGAL HEIRS OF DECEASED R1 RECORDED. IT IS ORDERD AS PER ORDER DATED 17.11.2021 IN MEMO DATED 23.09.2014 THAT THE FIRST RESPONDENT DIED AND THE RESPONDENTS 2 & 3 ARE HIS ONLY LEGAL REPRESENTATIVES IS RECORDED AS PER ORDER DATED 17.11.2021 IN M.A.C.A No.2088/2009. 4 T.BIJU, S/O.THANKAPPAN, NIKARTHIL HOUSE, CMC 23, CHERTHALA, ALAPPUZHA DISTRICT. **M.A.C.A No.2088/2009 & C.O.No.150/2014** **==> picture [7 x 9] intentionally omitted <==** 5 D.MADHU, PROPRIETOR, M/O.PADMA CARGOS, PANLOYIL BUILDING,(CATTLE FEED, PLANT), PATTANAKKAD P.O., CHERTHALA,, ALAPPUZHA DISTRICT. 6 NEW INDIA ASSURANCE CO. LTD. MTPC OFFICE, M.G.ROAD, COCHIN. *7 SANDEEP, S/O.MOHANAN, T.C.11/753, KAPPIVILAKAM HOUSE, PALAMOODU, PATTOM, TRIVANDRUM. *[DELETED] * RESPONDENT NO.7 DELTED. RESPONDENT NO.7 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 17.11.2021 IN I.A.NO.1/2021 IN M.A.C.A. NO.2088/2009. BY ADVS. SRI.P.ANIYAN SRI.N.S.MOHAMMED USMAN SRI.T.K.RADHAKRISHNAN SMT.V.RENJU SMT.M.A.RAMITHA SRI.RAMAKRISHNAN SOMANADHAN NAIR SRI.VAKKOM N.VIJAYAN THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 21.12.2021, ALONG WITH CO.150/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.2088/2009 & C.O.No.150/2014** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA,** **1943** **CO NO. 150 OF 2014** **AGAINST THE AWARD IN O.P(M.V) 662/2003 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, ERNAKULAM** **CROSS OBJECTOR/RESPONDENT/CLAIMANTAS IN O.P(M.V) NO.662/03 OF MACAT, ERNAKULAM:** *1 C.CHANDRA MOHAN (DIED) *LEGAL HEIRS OF DECEASED RESPONDENT NO.1 RECORDED. MEMO DATED 23.09.2014 REPORTING THE DEATH OF THE FIRST RESPONDENT & STATING THAT THE RESPONDENTS 2 & 3 ARE HIS ONLY LEGAL HEIRS IS RECORDED AS PER ORDER DATED 17.11.2021 IN M.A.C.A. No. 2088/09. 2 SREELATHA CHANDRA MOHAN, AGED 53 YEARS W/O.CHANDRA MOOHAN, NEDUVELIL HOUSE, VALANJAMBALAM, RAVIPURAM ROAD, COCHIN - 16, ERNAKULAM DISTRICT -682 506. 3 LAKSHMI CHANDRA MOHAN, AGED 33 YEARS, D/O.CHANDRA MOHAN, NEDUVELIL HOUSE, VALANJAMBALAM, RAVIPURAM ROAD, COCHIN - 16, ERNAKULAM DISTRICT -682 506. BY ADV SRI.T.K.RADHAKRISHNAN ## **RESPONDENT/APPELLANT IN APPEAL/RESPONDENTS:** ORIENTAL INSURANCE CO.LTD., COCHIN, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI -682 018. BY ADVS. SRI.GEORGE CHERIAN (SR.) **M.A.C.A No.2088/2009 & C.O.No.150/2014** **==> picture [7 x 9] intentionally omitted <==** SMT.K.S.SANTHI, SC THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 21.12.2021, ALONG WITH MACA.2088/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.2088/2009 & C.O.No.150/2014** 5 ## **JUDGMENT** The 5[th] respondent Oriental Insurance Company has preferred this appeal, M.A.C.A.No.2088/2009 against the award in O.P. (M.V) No.662/2003 dated 27.03.2009 on the file of Motor Accidents Claims Tribunal, Ernakulam challenging negligence as well as quantum. The original petitioners, who are arrayed as respondents 1 to 3 in this appeal filed Cross Objection No.150/2014 and canvassed increase in compensation. 2. Head both sides. 3. The crux of the petition is that one Parvathy died in consequence of a motor accident occurred on 05.05.2002 at about 6:30 a.m., while she was travelling in a Maruthi car bearing registration No.KL-1G-2660, when the above car met with an accident involving lorry bearing registration No.KL-4J-1638 driven by the 1[st] respondent. Accordingly, the ## **M.A.C.A No.2088/2009 & C.O.No.150/2014** 6 legal representatives of Parvathy filed application under Sections 166 and 140 of the Motor Vehicles Act alleging negligence against the 1[st] respondent as well as the 4[th] respondent in O.P(M.V) No.662/2009. 4. Respondents 1 and 2 filed joint written statement and denied the quantum as well as negligence. Quantum of compensation also was disputed while admitting policy issued by the 3[rd] respondent. The 3[rd] respondent also filed written statement admitting policy and disputing negligence as well as the quantum. 5. 4[th] respondent was declared ex-parte by the Tribunal. The 5[th] respondent, the insurer of the car also filed written statement disputing negligence and quantum while admitting policy. 6. The Tribunal went on trial. No oral evidence let in by both sides. Exts.A1 to A15 ## **M.A.C.A No.2088/2009 & C.O.No.150/2014** 7 on the side of the original petitioners. Ext.B1 marked on the side of the Insurance Company. 7. The Tribunal after fixing the monthly income at Rs.6,000/- per month in an accident occurred on 2002 granted Rs.7,55,000/- as compensation by applying the multiplier as '15' applicable to the mother of the deceased. 8. The first question to be decided in this appeal is whether the findings of negligence by the Tribunal against the 4[th] respondent, owner-cum-driver of the car required to be interfered. 9. The learned counsel for the Insurance Company pointed out the narration of events in the scene mahazar to hold that the lorry also contributed in this accident. However, Ext.A3 charge sheet in this matter is against the 4[th] respondent. Relying on the police charge, the Tribunal found negligence against the 4[th] ## **M.A.C.A No.2088/2009 & C.O.No.150/2014** 8 respondent. In fact, following the rulings in _**M.T.Fazal Mahmood and Others v. Rasheed C.P.**_ _**and Others**_ **: 2015 (2) KLT 266** and _**New India**_ _**Assurance Co. Ltd v. Pazhaniammal**_ **: 2011 (3)** **KLT 648,** I am not inclined to revisit the finding of the Tribunal in the matter of negligence ignoring the police charge since no materials, other than police charge, available in this matter. This is the context on which the Cross Objection filed by the original petitioners canvassing increase required to be addressed. 10. It is submitted by the learned counsel for the original petitioners that though Ext.A12 offer of appointment showing the gross salary of Parvathy Chandra Mohan in U.S. Software Pvt. Ltd. dated 13.07.2000 was produced along with Ext.A13, offer of appointment and Ext.A10 copy of degree certificate of Bachelor of Technology in ## **M.A.C.A No.2088/2009 & C.O.No.150/2014** 9 Electrical and Electronics, the Tribunal fixed the monthly income at Rs.6,000/- without any addition. 11. According to the learned counsel for the original petitioners, since the deceased was holder of Bachelor Degree in Technology, the Tribunal could not be justified in fixing Rs.6,000/- as the monthly income. 12. According to the learned counsel for the Oriental Insurance Company, no convincing evidence let in by the original petitioners to substantiate the income and, therefore, the Tribunal could not be faulted in the matter of fixing Rs.6,000/- as the monthly income. To be on the crux of the dispute, it is a matter proved before the Tribunal that the deceased was degree holder in Electrical and Electronics. Therefore, a reasonable income required to be fixed. **==> picture [384 x 14] intentionally omitted <==** ## **M.A.C.A No.2088/2009 & C.O.No.150/2014** 10 40% addition can be considered in this matter for granting 'loss of dependency'. Thus 'loss of dependency' is recalculated as under: 7000+40% = 9,800x12x18x50% = 10,58,400/- Out of which, Rs.7,20,000/- was granted by the Tribunal. Thus, **Rs.3,38,400/-** more is granted under the head 'loss of dependency'. 14. The learned counsel for the Cross Objectors/petitioners in O.P(M.V) No.662/2003 appraised for granting increase under the conventional heads following the ratio in ## _**National Insurance Company Ltd. v. Pranay Sethi**_ **: (2017) 16 SCC 680.** At the same time, the learned counsel for the 5[th] respondent/ Insurance Company pressed for reducing Rs.10,000/- granted under the head ‘loss of love and affection’ and Rs.10,000/- granted under the head ‘pain and sufferings’ following the ratio in _**United India Insurance Co. Ltd v.**_ _**Satinder Kaur**_ **@ Satwinder Kaur and others :** **M.A.C.A No.2088/2009 & C.O.No.150/2014** ## 11 ## **2020 (3) KHC 760.** 15. On perusal of the award, I could notice that the Tribunal granted Rs.5,000/- under the head 'funeral expenses'. Therefore, **Rs.10,000/-** more is granted under the head 'funeral expenses' following the ratio in _**Pranay Sethi’s**_ case (Supra). Similarly, under the head 'loss of estate', the Tribunal granted Rs.10,000/alone. Therefore, **Rs.5,000/-** more is granted under the head 'loss of estate', following the ratio in _**Pranay Sethi’s**_ case (Supra). The award does not show that any amount granted under the head 'loss of consortium'. Therefore, **Rs.40,000/-** is granted under the head 'loss of consortium' following the ratio in _**Pranay**_ _**Sethi's**_ case (supra). 16. Following the ratio in _**United India Insurance Co. Ltd v. Satinder Kaur**_ **@ Satwinder** **Kaur and others : 2020 (3) KHC 760,** **Rs.20,000/-** granted under the heads ‘pain and ## **M.A.C.A No.2088/2009 & C.O.No.150/2014** 12 sufferings’ and 'loss of love and affection', is reduced. 17. In the result, M.A.C.A. No.2088/2009 is allowed in part by reducing the amounts granted under the heads 'pain and sufferings' and 'loss of love and affection'. Cross Objection also is allowed. It is held that the appellants are entitled to get Rs.11,28,400/- as compensation out of which Rs.7,55,000/- was granted by the Tribunal and the balance amount of **Rs.3,73,400/-** (Rupees Three Lakh Seventy Three Thousand and Four Hundred Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the Insurance Company from the date of petition till the date of deposit or realisation, excluding the period of 1829 days in filing the Cross Objection as ordered in the order dated 17.11.2021 in C.M.Appication No.1/2014. The Insurance Company is directed to deposit the same in the name of the appellants in the **M.A.C.A No.2088/2009 & C.O.No.150/2014** 13 proportion within two months from today. 18. It is submitted by the learned counsel for the 6[th] respondent, the insurer of the lorry that at the time, when the interim award was passed, Rs.25,000/- was deposited (50%) by the 6[th] respondent and as per the narration in paragraph 10 of the award, the appellant was directed to deposit the same in favour of the 6[th] respondent. In view of this specific order, the amount might have been deposited. If at all, there is no deposit, it is specifically ordered that out of the enhanced amount, the appellant/5[th] respondent shall deposit Rs.25,000/- with the interest granted by the Tribunal in the name of the 6[th] respondent so that they can release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww