MACA Nos. 2349/2013 & 85/2014, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **SATURDAY, THE 4[TH] DAY OF DECEMBER 2021 / 13TH AGRAHAYANA,** ## **1943** **MACA NO. 2349 OF 2013** **AGAINST THE AWARD IN O.P(M.V) 1149/2007 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANTS/PETITIONERS:** 1 T.VIJI, AGED 41 YEARS W/O.LATE SAJITH CHANDRAN @ SAJITH, POOVAPOTTA HOUSE, ERIMAYUR P.O., PALAKKAD. 2 KRISHNA (MINOR), AGED 11 YEARS, S/O.LATE SAJITH CHANDRAN, POOVAPOTTA HOUSE, ERIMAYUR P.O., PALAKKAD, REPRESENTED BY MOTHER AND NATURAL GUARDIAN T.VIJI, -DO- -DO3 ROHIT (MINOR), AGED 17 YEARS, S/O.LATE SAJITH CHANDRAN, POOVAPOTTA HOUSE, ERIMAYUR P.O., PALAKKAD, REPRESENTED BY MOTHER AND NATURAL GUARDIAN T.VIJI, -DO- -DO-. 4 SAVITHRI, AGED 62 YEARS, W/O.LATE RAMACHANDRAN, POOVAPOTTA HOUSE, ERIMAYUR P.O., PALAKKAD, -DO- -DO-. BY ADVS. SRI.N.K.KARNIS SRI.LATHEESH SEBASTIAN ## **RESPONDENTS/RESPONDENTS:** 1 K.RAMACHANDRAN PILLAI, PARAMBATHUKONA, AGASTHIACODE, ANCHAL, KOLLAM DISTRICT-691 306. 2 SUDHAKARAN, AGED 39 YEARS, S/O.SATHYADEVAN PILLAI, LAKSHMI BHAVAN, NEDIYARA P.O., ANCHAL, KOLLAM DISTRICT-691 306. ## **M.A.C.A Nos.2349/2013 & 85/2014** **==> picture [7 x 9] intentionally omitted <==** 3 THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, PULIMOOTTIL BUILDINGS, P.B.NO.17, POST OFFICE JUNCTION, PUNALUR-691 395. BY ADVS. SRI.P.JACOB MATHEW, SC SRI.MATHEWS JACOB, SR.SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2021, ALONG WITH MACA.85/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A Nos.2349/2013 & 85/2014** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN SATURDAY, THE 4[TH] DAY OF DECEMBER 2021 / 13TH AGRAHAYANA,** **1943** **MACA NO. 85 OF 2014** **AGAINST THE AWARD IN O.P(MV) 1149/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** ## **APPELLANT/3RD RESPONDENT:** THE ORIENTAL INSURANCE COMPANY LIMITED, PUNALUR, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI 18. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENTS/PETITIONERS:** 1 T.VIJI, W/O. LATE SAJITH CHANDRAN @ SAJITH, POOVAPOTTA HOUSE, ERIMAYUR P.O, PALAKKAD - 678 320. 2 KRISHNA (MINOR), S/O.LATE SAJITH CHANDRAN @ SAJITH, POOVAPOTTA HOUSE, ERIMAYUR P.O, PALAKKAD - 678 320. 3 ROHIT (MINOR), S/O.LATE SAJITH CHANDRAN @ SAJITH, POOVAPOTTA HOUSE, ERIMAYUR P.O, PALAKKAD - 678 320. 4 SAVITHRI, W/O.LATE RAMACHANDRAN, POOVAPOTTA HOUSE, ERIMAYUR P.O, PALAKKAD - 678 320. ## **M.A.C.A Nos.2349/2013 & 85/2014** **==> picture [7 x 9] intentionally omitted <==** BY ADVS. SRI.N.K.KARNIS SRI.MATHEWS JACOB, SR.SC SRI.JACOB MATHEW, SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2021, ALONG WITH MACA.2349/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A Nos.2349/2013 & 85/2014** 5 ## **JUDGMENT** M.A.C.A.No.2349/2013 is an appeal filed by the additional petitioners 2 to 5 in O.P. (M.V) No.1149/2007 on the file of Motor Accidents Claims Tribunal, Palakkad challenging award dated 06.06.2013 in the above case, on the ground of insufficiency of compensation. 2. Whereas, M.A.C.A. No.85/2014 is one filed by the original 3[rd] respondent, the Insurance Company, challenging the quantum of compensation granted by the Tribunal on the ground that the same is excessive on some heads. 3. Heard both sides. 4. Brief facts of the case: One Sajith Chandran died in consequence of a motor accident occurred on 16.11.2006 at 10:30 p.m. when he was hit down by a bus bearing registration no.KL-25/369 driven by the ## **M.A.C.A Nos.2349/2013 & 85/2014** 6 original 2[nd] respondent in a rash and negligent manner when the above said Sajith Chandran was riding on his motor cycle. The above said Sajith Chandran sustained serious injuries and he underwent treatment thereafter. However, he died on 14.12.2007 in consequence of accidental injuries. 5. Initially above said Sajith Chandran filed O.P.(M.V) No.1149/2007 claiming compensation for the injuries. Thereafter his death, additional petitioners viz., wife, children and the mother got impleaded and the claim was enhanced to Rs.55 lakh. 6. The 3[rd] respondent, Insurance Company filed written statement. Policy to the bus was admitted. But quantum of compensation under various heads was disputed. 7. Tribunal went on trial. PW1 examined and Exts.A1 to A18 marked on the side of appellants. No evidence let in by the respondents. Exts.X1 to X5 also marked. The ## **M.A.C.A Nos.2349/2013 & 85/2014** 7 Tribunal appraised the evidence and finally granted Rs.42,70,264/- as compensation. 8. It is submitted by the learned counsel for the Insurance Company that the monthly income taken by the Tribunal based on Ext.X2 certificate at Rs.21,804/- is wrong. According to the learned counsel, on reading Ext.X2 it is specifically stated therein that 'the expected revised salary' of Sri.Sajith Chandran as on 31.12.2007 would come to Rs.21,804/-. In fact, the Tribunal considered the income shown in Ext.X2 for the purpose of fixation of monthly income to assess the loss of dependency income. It is pointed out by the learned counsel for the Insurance Company that Ext.X5 produced in this case would go to show that the actual salary drawn by the deceased during November, 2007 would come to Rs.20,176/- only. According to the learned counsel for the Insurance Company, 50% addition was given towards future prospects in anticipation of increase in salary ## **M.A.C.A Nos.2349/2013 & 85/2014** 8 as per the ratio in _**National Insurance Company Ltd. v. Pranay Sethi :**_ **(2017) 16 SCC 680,** since the deceased was aged below 50 years. Therefore, 50% addition to be made to the salary prevailing as on the date of accident or death. Therefore, the learned counsel canvassed to re-fix the monthly income at Rs.20,176/-. Though the learned counsel for the Insurance Company highlighted deductions other than tax, I do not think that such deductions are permissible since the settled law is that tax alone is liable to be reduced. 9. Whereas, the learned counsel for the appellants would contend that the Tribunal fixed Rs.21,804/- as salary based on Ext.X2 in anticipation of the same and, therefore, reduction there from cannot be justified. 10. I have gone through Exts.X2 and X5 to resolve the controversy. Ext.X2 would go to show that salary of Sri.Sajith Chandran was ## **M.A.C.A Nos.2349/2013 & 85/2014** **==> picture [7 x 9] intentionally omitted <==** Rs.21,804/- and the same was calculated as 'expected revised salary'. Whereas, Ext.X5 would go to show that during November, 2007 the salary of the Sajith Chandran was Rs.20,176/-. In fact Rs.20,176/- the actual salary on the date of accident to be fixed as the monthly income to workout the loss of dependency income and it is ordered accordingly. **==> picture [298 x 13] intentionally omitted <==** 11. Regarding the age as well as the multiplier, there is no dispute in between the parties. However, it is specifically pointed out by the learned counsel for the appellants that the Tribunal wrongly deducted[1] /3[rd] towards the personal expenses of the deceased though ¼[th] ought to be deducted following the ratio in _**Pranay Sethi's**_ case (supra). This legal position is not opposed by the learned counsel for the Insurance Company since the claimants are 4. Therefore, ¼[th] is the deduction in this 10 ## **M.A.C.A Nos.2349/2013 & 85/2014** case. 27,238x12x15x¾ = 36,77,130/- Out of which, Rs.35,32,200/- was granted by the Tribunal and the balance **Rs.1,44,930/-** more is granted under the head of 'loss of dependency'. 12. The learned counsel for the appellants canvassed increase under the conventional heads following the ratio in _**Pranay Sethi's**_ case (supra). At the same time, the learned counsel for the Insurance Company canvassed deduction of Rs.10,000/- granted under the head of 'loss of love and affection', following the ratio in ## _**United India Insurance Co. Ltd v. Satinder Kaur**_ ## **@ Satwinder Kaur and others : 2020 (3) KHC 760.** That apart, it is specifically argued by the learned counsel for the Insurance Company, the Tribunal granted Rs.7,10,064/- towards medical expenses. It is argued by the learned counsel for the Insurance Company that going by the ## **M.A.C.A Nos.2349/2013 & 85/2014** 11 evidence of PW2 and as per the details of medical reimbursement in respect of the deceased furnished by the Administrative Officer (Central Excise) forming part of Ext.X4 also, it has been specifically stated that the total amount reimbursed would come to Rs.5,90,064/-. Though the learned counsel for the Insurance Company canvassed reduction of the sum pointing out the fact that the said amount cannot be granted, it is submitted by the learned counsel for the appellants that no such contention raised before the Tribunal and, therefore, deduction as canvassed by the Insurance Company cannot be granted. 13. In fact a legal question has been posed by the learned counsel for the Insurance Company pointing out the fact that when the injured or his legal heirs received some amount due to be paid by the insurer from any other person, normally the insurer is entitled to get it recovered from the person who paid for this. ## **M.A.C.A Nos.2349/2013 & 85/2014** **==> picture [13 x 9] intentionally omitted <==** 14. While dealing with this question, I would like to discuss the question of principle of subrogation. Subrogation literally means ' _the act of substituting of one creditor for_ _another'._ 15. Black's Law Dictionary defines subrogation as under; _The substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor. For example, a surety who has paid a debt is, by subrogation, entitled to any security for the debt held by the creditor and the benefit of any judgment the creditor has against the debtor, and may proceed against the debtor as the creditor would. Subrogation most commonly arises in relation to insurance policies. 2. The equitable remedy by which such a substitution takes place. 3. The principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy._ 16. P.Ramanatha Aiyar's Major Law Lexicon, **M.A.C.A Nos.2349/2013 & 85/2014** 13 ## defines subrogation as; _Substitution of another person in the place of a creditor, so the person in whose favour it is exercised succeeds to the rights of the creditor in relation to the debt. The doctrine is one of equity and benevolence, and like contribution and other similar equitable rights was adopted from the civil law, and its basis is doing complete, essential, and perfect justice between all the parties without regard to form, and its object is the prevention of injustice. The right does not rest on contract or privity, but upon principles of natural equity, and does not depend upon the act of the creditor, but may be independent of him and also of the debtor._ 17. In fact, the principle of subrogation is incorporated under Section 69 of the Indian Contract Act, 1972 and it provides that any person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other person. Section 92 of the Transfer of Property Act also recognises the principle of subrogation. In the ## **M.A.C.A Nos.2349/2013 & 85/2014** 14 constitution Bench decision reported in _**Economic Transport Organisation v. Charan Spinning Mills (P) Ltd. and another**_ **:** ( **2010) 4 SCC 114,** the Apex Court held that law of insurance recognises an equitable corollary of the principle of indemnity that when the insurer had indemnified the assured/insured, the rights and remedies of the assured/insured against the wrong doer stand transferred to and vested in the insurer. 18. In view of the above, Rs.5,90,064/granted by the Tribunal is liable to be deducted. Thus, the total deduction would come to **Rs.6,00,064/** - (5,90,064+10,000). 19. The learned counsel for the appellants canvassed increase under the head 'loss of consortium' since the Tribunal granted only Rs.10,000/- under the said head. Appellants, who are wife, children and mother, entitled to get Rs.40,000/- each and the total would come ## **M.A.C.A Nos.2349/2013 & 85/2014** 15 to Rs.1,60,000/- following the ratio in _**Pranay**_ _**Sethi's**_ case (supra). Therefore, **Rs.1,50,000/-** more is granted towards the head 'loss of consortium'. Similarly, the Tribunal granted Rs.3,000/- alone under the head 'funeral expenses'. **Rs.12,000/-** more is granted under the head following the ratio in _**Pranay Sethi's**_ case (supra). Towards 'loss of estate', the Tribunal granted Rs.5,000/- as such **Rs.10,000/-** more is granted under the head 'loss of estate' also, following the ratio in _**Pranay Sethi's**_ case (supra). 20. It is submitted by the learned counsel for the appellants that the above said Sajith Chandran was hospitalised for a period of eight months. Going by Ext.A7, initially Sajith Chandran was admitted in Paalana Institute of Medical Sciences, Palakkad from 16.11.2006 to 31.03.2007. Again he was admitted on 05.07.2007 to 09.07.2007 for five days and from 27.10.2007 ## **M.A.C.A Nos.2349/2013 & 85/2014** **==> picture [13 x 9] intentionally omitted <==** to 14.12.2007. 'Bystander expenses' at the rate of Rs.150/- for 215 days i.e., 215 x 150 = **32,250/-.** 21. The learned counsel for the appellants vehemently canvassed increase under the head 'extra nourishment' highlighting the prolonged hospitalisation. In view of the above, I am inclined to grant **Rs.15,000/-** under the head 'extra nourishment'. In the result, these appeals are allowed in part. The award impugned is reversed and consequently, it is held that the appellants are entitled to get **Rs.40,34,380/-** (Forty Lakh Thirty Four Thousand Three Hundred and Eighty only) with the same rate of interest awarded by the Tribunal from the date of petition till the date of deposit or realisation. **==> picture [349 x 13] intentionally omitted <==** deposit the same in the names of the appellants ## **M.A.C.A Nos.2349/2013 & 85/2014** **==> picture [13 x 9] intentionally omitted <==** /additional petitioners in the proportion fixed by the Tribunal after depositing the court fee ordered by the Tribunal in the name of the Motor Accidents Claims Tribunal, Palakkad. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww