MACA Nos. 3056/2022 & 788/2019, Sajan B. v. United India Insurance Co. Ltd. & Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 3[RD] DAY OF APRIL 2023 / 13TH CHAITHRA, 1945 ``` ``` MACA NO. 3056 OF 2022 ``` ``` [AGAINST THE AWARD DATED 5.12.2017 IN OP(MV)NO.439/2008 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM] ``` ## `APPELLANT/1ST RESPONDENT:` ``` SAJAN.B., AGED 54 YEARS, S/O. BENCHAMIN, BJS COTTAGE, PUNNAKKADU, KILIYOOR, MANNAMKONAM, VELLARADA P.O., THIRUVANANTHAPURAM – 695 505. ``` ``` BY ADVS.G.SUDHEER R.HARIKRISHNAN (H-308) ``` ## `RESPONDENTS/PETITIONERS & 2ND & ADDL.3RD RESPONDENT:` - `1 LAILAMMA OOMMEN, W/O. LATE MELVIN RAJ, MANUVELIL G-175, KAIRALI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM – 695 006.` - `2 ANNIE CUCKOO AMAL, W/O. AMAL MATHEW, MANUVELIL G-175, KAIRALI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM – 695 006.` - `3 FEBA MELVIN RAJ, D/O. LATE MELVIN RAJ, MANUVELIL G-175, KAIRALI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM – 695 006.` - `4 MAHATH MATHEWS MELVIN, MANUVELIL G-175, KAIRALI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM – 695 006.` - `5 THULASI BAI, W/O.LATE ROSSBERRY, MANUVELIL G-175, KAIRALI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM – 695 006.` - `6 THE MANAGER, UNITED INDIA INSURANCE CO. LTD., VETTUKATTIL BUILDING, M.G. ROAD, ERNAKULAM, KOCHI – 682 016.` ``` BY ADVS.R.T.PRADEEP P.K.MANOJ KUMAR, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 03.04.2023, ALONG WITH MACA.788/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -2- ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 3[RD] DAY OF APRIL 2023 / 13TH CHAITHRA, 1945 ``` ## `MACA NO. 788 OF 2019` ``` [FILED UNDER SECTION 173 OF MOTOR VEHICLES ACT AGAINST THE AWARD DATED 5.12.2017 IN OP(MV)NO.439/2008 ON THE ``` ## `FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,` ## `THIRUVANANTHAPURAM]` ## `APPELLANT/APPLICANTS:` - `1 LAILAMMA OOMMEN, AGED 56, W/O.MELVIN RAJ, MANUVELIL, G-175, KAIRALI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM-695 006.` - `2 ANNIE CUCKOO AMAL, W/O.AMAL MATHEW, RESIDING AT MANUVELIL, G-175, KAIRALI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM-695 006.` - `3 FEBA MELVIN RAJ, D/O.MELVIN RAJ, RESIDING AT MANUVELIL, G-175, KAIRALI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM-695 006.` - `4 MAHATH MATHEWS MELVIN, RESIDING AT MANUVELIL, G-175, KAIRALI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM-695 006.` - `5 THULASI BAI, W/O.LATE ROSSBERRY, MANUVELIL, G-175, KAIRALI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM-695 006.` ## `BY ADV R.T.PRADEEP` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -3- ``` ## `RESPONDENT/RESPONDENT:` ``` THE MANAGER, UNITED INDIA INSURANCE CO. LTD., VETTUKATTIL BUILDING, M.G.ROAD, ERNAKULAM - 682 016. ``` ``` BY ADV SRI.P.K.MANOJKUMAR, SC, ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.04.2023, ALONG WITH MACA.3056/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -4- ``` ## `JUDGMENT` ``` [MACA Nos.3056/2022, 788/2019] ``` ``` I am considering these Appeals together because they emanate out of the same Award of theMotorAccidentsClaimsTribunal, ``` ``` Thiruvananthapuram (‘Tribunal’, for short); and since the issues impelled therein are ``` ``` interconnected. ``` ``` 2.On 30.03.2008, when late Melvin Raj was driving his motorcycle, it was rammed into by ``` ``` the offending lorry, driven in a rash and negligent manner, thus causing him very severe injuries. He, however, succumbed to the same ``` ``` thereafter; and his legal heirs – the appellants ``` ``` in MACA No.788/2019 - filed OP(MV)No.439/2008 beforethelearnedTribunal,seeking compensation for his death to a sum of Rs.21,60,000/-, limited to Rs.20 lakhs; but which has been allowed only to an amount of ``` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -5- ``` ``` Rs.6,98,800/-. They impugn the Award as being inadequate. ``` ``` 3.While so, Sri.Sajan B. - who is the owner of the offending vehicle, filed MACA No.3056/2022, impugning the same Award, but only ``` ``` to a limited extent, namely, that the learned Tribunal has incorrectly found him responsible to pay the quantum of compensation to the ``` ``` Insurance Company, since the vehicle was ``` ``` overloaded at the time of the accident. ``` ``` 4.Sri.K.C.Harish – learned counsel for the ``` ``` claimants/appellants in MACA No.788/2019, argued ``` ``` that the primary reason why the compensation fixed in favour of his clients is low because, ``` ``` the learned Tribunal has reckoned the notional income of the deceased to be a mere Rs.5,500/-, though there is evidence on record to establish that he was earning Rs.13,500/- per month, as an Office Superintendent of a business entity. ``` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -6- ``` ``` 5.Sri.K.C.Harish pointed out that, in ``` ``` fact, Ext.A5 – Salary Certificate has been spoken about by PW1; however, conceding that said witness testified that it was not he who ``` ``` issued the same, but his predecessor in office. He contended that this would be of no relevance ``` ``` at all because, when it is without doubt that the figure shown in Ext.A5 was drawn by the ``` ``` deceased, same ought to have been reckoned by the learned Tribunal as his income. He concluded ``` ``` his submissions saying that the compensation ``` ``` under the head “Loss of Consortium” has been ``` ``` denied to his clients, even though each of them is entitled to Rs.40,000/- under it, as per ``` ``` National Insurance Company Ltd. v. Pranay Sethi ``` ``` [2017 (4) KLT 662]. ``` ``` – 6.Sri.G.Sudheerlearnedcounsel appearing for the appellant in MACA No. 3056/2022, pertinently, did not challenge the ``` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -7- ``` ``` quantum of compensation awarded by the learned Tribunal to the claimants, but argued that his client could not have been mulcted with the liability to pay to the Insurance Company, after ``` ``` they honoured it to the claimants. He, however, admitted that his client remained ex parte before the learned Tribunal; but explained that this is because his learned counsel had ``` ``` unfortunately passed away, when the matter was pending. ``` ``` 7.Sri.G.Sudheer then pointed out that, ``` ``` even though the learned Tribunal found that the vehicle was overloaded based on the Police Final Report, namely Ext.A2, he has now produced ``` ``` documents on record, including the judgment of ``` ``` the Court of the Judicial First Class Magistrate-I,Thiruvananthapuram,in ``` ``` C.C.No.103/2008, which has exonerated his client on such charges, finding that imputations of ``` ``` MACA NOS.3056/2022 & 788/2019 ``` **==> picture [22 x 9] intentionally omitted <==** ``` overloading of the vehicle are factually incorrect. He thus prayed that the impugned Award of the learned Tribunal, to the extent to which it finds his client responsible to pay the Insurance Company, be set aside. ``` ``` 8.Sri.P.K.Manoj Kumar – learned Standing Counsel for the Insurance Company, opposed both these Appeals, arguing that the computations adopted by the Tribunal in arriving at the compensation are without error; and that its conclusions, making the appellant in MACA ``` ``` No.3056/2022 responsible for the compensation are also without error, particularly when the Police Final Report unequivocally establishes ``` ``` that the offending vehicle was overloaded at the time of the accident. He thus prayed that both these appeals be dismissed. ``` **==> picture [377 x 11] intentionally omitted <==** ``` submissions on the touchstone of the evidence on ``` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -9- ``` ``` record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be ``` ``` acted upon by this Court without dispute. ``` ``` 10.I will first deal with the claim of the ``` ``` appellants in MACA No.788/2019, relating to ``` ``` inadequacy of the compensation, awarded. ``` ``` 11.As rightly argued by Sri.K.C.Harish – ``` ``` learned counsel for the appellants, the learned ``` ``` Tribunal has adopted the notional income of the deceased to be a mere Rs.5,500/-, holding that Ext.A5 – Salary Certificate has not been ``` ``` properly proved. Before answering the question whether Ext.A5 has been proved, one must keep in ``` ``` mind that even in the case of a ‘Coolie’ or a ``` ``` person with an unascertainable income in the ``` ``` year 2008 - when the accident occurred – the Hon’ble Supreme Court has standardized the notional income to be adopted, in Ramachandrappa ``` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -10- ``` ``` v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], as a minimum of Rs.6,500/-. There is no reason why the Tribunal did not adopt at least this figure. ``` ``` 12.That said, even when Ext.A5 has not been properly proved - because PW1 deposed to the effect that he did not issue it but that his predecessor did so - the factum of the deceased not being a mere ‘Coolie’ is clearly established. There is no reason to disbelieve the statements in Ext.A5, to the effect that the ``` ``` deceasedwasworkingasanOffice ``` ``` Superintendent, though the learned Tribunal was right in not having accepted the amount shown therein as his income, in the absence of ``` ``` verifiable proof or corroborating evidence. ``` ``` 13.In Rajani v. Oriental Insurance Company ``` ``` Limited [2022 (5) KLT OnLine 1012 (SC)], the ``` ``` Hon’ble Supreme Court has postulated that, in ``` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -11- ``` ``` the case of a person who is engaged in technical avocation or one which requires some ``` ``` credentials, a more robust view has to be taken. ``` ``` In this case, I do not see any reason to ``` ``` disbelieve the claimants that the deceased was working as an Office Superintendent. ``` ``` 14.I am, therefore, of the firm view that ``` ``` the notional income of the deceased must be ``` ``` adopted to be a minimum of Rs.8,500/-, which is ``` ``` a mere Rs.2,000/- more than what has been ``` ``` authorized in Ramachandrappa (supra) in the case ``` ``` of a ‘Coolie’. Once the notional income has been so adopted, 10% future prospects deserves to be added to it, as per Pranay Sethi(supra). This is without contest. ``` ``` 15.Obviously, therefore, the compensation ``` ``` under the head “Loss of Dependency” will require to be revised; while an amount of Rs.2,00,000/- becomes enjoined to be awarded to the appellants ``` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -12- ``` ``` under the head “Loss of Consortium”. ``` ``` 16.When I say as afore, I am aware that the learned Tribunal has awarded an amount of Rs.55,000/- under the consolidated head of “Compensation for mental shock, shortened expectation in life, pecuniary, loss of enjoyment in life expectation, love and affection of the life etc.” When this Court has already granted compensation towards “Loss of Consortium” as afore, said head requires to ``` ``` be deleted. ``` ``` 17.That said, I am of the opinion that the ``` ``` compensation awarded by the learned Tribunal under various other heads is without error. ``` ``` 18.Now turning to the contentions of the ``` ``` appellant in MACA No.3056/2022, as I have already recorded above, the findings against him have been entered into by the learned Tribunal with him remaining ex parte throughout the ``` ## `MACA NOS.3056/2022 & 788/2019` ``` -13- ``` ``` proceedings. The learned Tribunal has relied upon Exts.A1 and A2 - Police Records to hold ``` ``` that the offending vehicle was overloaded at the time of the accident and that this amounts to ``` ``` violation of the conditions of the Policy of ``` ``` Insurance. However, the specific argument of ``` ``` Sri.G.Sudheer, the learned counsel, is that his ``` ``` client has been exonerated from all such charges ``` ``` byacompetentMagistrateCourtin C.C.No.103/2008; and he has produced the ``` ``` original of the said judgment before this Court, along with I.A.No.2/2022, within the ambit of Order XLI, Rule 27 of the Code of Civil ``` ``` Procedure. ``` ``` 19.I, therefore, asked Sri.P.K.Manoj Kumar ``` ``` whether his client would admit the new document ``` ``` on record, to which his answer is that it cannot be done without proper proof. He contended that it is not enough that the new document is ``` ## `MACA NOS.3056/2022 & 788/2019` ``` -14- ``` ``` produced by the appellant, but that he must ``` ``` prove it cogently through proper evidence; which ``` ``` cannot be done before this Court, but only before the learned Tribunal. He then added that ``` ``` law has been now well settled that the decision of the Magistrate Court is not binding on the Tribunal; and sought liberty to impel all such ``` ``` contentions before it, if this Court is inclined ``` ``` to remand the Original Petition to it. ``` ``` 20.When I consider the afore rival ``` ``` positions of the parties, it is evident that, ``` ``` when the judgment of the Magistrate Court is not ``` ``` admitted by the Insurance Company, all which ``` ``` this Court can do is to remit the Original ``` ``` Petition to the learned Tribunal for ``` ``` consideration of the issue whether the appellant ``` ``` in MACA No.3056/2022 can be held responsible to ``` ``` pay the Insurance Company, after it honours the ``` ``` quantum of compensation to the claimants. I am ``` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -15- ``` ``` persuaded to do so, also because the appellant concededly remained ex parte before the ``` ``` Tribunal; but must be given one opportunity to prove his case, taking note of the afore explanation as to why he had omitted to appear during trial. ``` ``` Resultantly, these Appeals are ordered in ``` ``` the following manner: ``` ``` A. MACA No.788/2019 ``` ``` (a)This Appeal is partly allowed, enhancing ``` ``` the compensation under the head “Loss of ``` ``` Dependency” to Rs.9,25,650/- (Rupees nine lakhs ``` ``` twenty five thousand six hundred and fifty only), from Rs.5,98,950/-, reckoning the ``` ``` notional income of the deceased to be Rs.8,500/- per month, with 10% future prospects added to it and one-fourth of the same deducted towards his personal expenses, as per Sarla Verma & Others v.Delhi Transport Corporation & Another[2010 ``` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -16- ``` ## `(2) KLT 802].` - `(b) An additional amount of Rs.2,00,000/-` ``` (Rupees two lakhs only) is awarded to the ``` ``` appellants under the head “Loss of Consortium”, ``` ``` at the rate of Rs.40,000/- per head, as per Pranay Sethi (supra). ``` ``` (c)The compensation awarded by the Tribunal ``` ``` under the head “Mental Shock, Shortened ``` ``` expectation in life, pecuniary, loss of enjoyment in life expectation, love and ``` ``` affection of the life etc.”, of an amount of ``` ``` Rs.55,000/-, is deleted. ``` ``` (d)In all other heads, the compensation ``` ``` granted by the Tribunal will remain intact. ``` ``` Consequently, the appellants will be at full ``` ``` liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8%, as awarded by the Tribunal, from the date of claim until it is ``` ``` MACA NOS.3056/2022 & 788/2019 ``` **==> picture [30 x 8] intentionally omitted <==** ``` recovered.They will also be entitled to ``` ``` proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` It goes without saying that, while ``` ``` calculating interest on the amounts enhanced by ``` ``` this Court, a period of 114 days - being the delay in filing this Appeal – shall stand ``` ``` excluded. ``` ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance ``` ``` Company before the Tribunal, within a period of two months from the date of receipt of a copy this judgment. ``` **==> picture [170 x 13] intentionally omitted <==** ``` This Appeal is allowed and the Original ``` ``` Petition is remanded to the Trial Court for ``` ``` reconsideration of the sole issue as to whether the appellant is responsible for paying the ``` ``` amount of compensation, as fixed above, to the ``` ## `MACA NOS.3056/2022 & 788/2019` ``` -18- ``` ``` Insurance Company, after it honours the same in favour of the claimants. For this purpose, the learnedTribunalwillaffordnecessary opportunity to the appellant and the Insurance Company - but without issuing any notice to the ``` ``` claimants - of filing applications and pleadings; of leading additional/fresh evidence ``` ``` and of further hearing; thus culminating in a fresh Award on this singular issue, as ``` ``` expeditiously as is possible, but not later than ``` ``` eight months from the date of receipt of a copy ``` ``` of this judgment. For this purpose, the ``` ``` appellant and the Insurance Company, but not the claimants, shall appear before the learned Tribunal at 11 a.m. on 20.04.2023. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ## `JUDGE` ``` akv ``` ``` MACA NOS.3056/2022 & 788/2019 ``` ``` -19- ``` ## `APPENDIX OF MACA 3056/2022` ## `PETITIONER ANNEXURES` ``` ANNEXURE1CERTIFIED COPY OF JUDGMENT IN CC 103/2008 ON THE FILE OF JFMC-I, THIRUVANANTHAPURAM ```