MACA Nos.803 of 2006 & 1312 of 2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** ## **FRIDAY, THE 17TH DAY OF AUGUST 2012/26TH SRAVANA 1934** ## **MACA.No. 803 of 2006 ( )** **-----------------------OP(MV)NO.1575/2000 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,PERUMBAVOOR ------------------------------------------** ## **APPELLANT/3RD RESPONDENT:** **-------------------------------------------------** **UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11.** **BY ADVS.SRI.P.JACOB MATHEW SMT.RAJI T.BHASKER SRI..B.SAJEEV KUMAR** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 RESPECTIVELY:** **-----------------------------------------------------------------------------------------------------** ## **1. SEKHARA MARAR, S/O. KESAVA MARAR, PUNNAKATTU MARATH HOUSE, ULIYANNOOR, ALUVA.** ***2. P.K. RAJAPPAN, PUTHENPURAYIL HOUSE, AROOKUTTY P.O., CHERTHALA, ALAPPUZHA DISTRICT.(DELETED)** - ***R2 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 6/3/2008 IN I.A.NO.539/2008.** **3. RAJESH, S/O. RAGHAVAN, WARD IV, THAIKKATTUSSERY VILLAGE, CHERTHALA, ALAPPUZHA DISTRICT.** **R1 BY SMT.V.P.SEEMANDINI,SENIOR ADVOCATE ADV. SRI.RAJIV NAMBISAN R2 BY ADV.SRI.T.R.RAJESH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-07-2012, ALONG WITH M.A.C.A.NO. 1312 OF 2006, THE COURT ON 17-08-2012 DELIVERED THE FOLLOWING:** **sts** **C.R.** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** -------------------------------------------------- MACA Nos.803 and 1312 of 2006. ------------------------------------------------Dated this the 17[th] day of August, 2012. ## **JUDGMENT** ## Ramakrishna Pillai, J **.** These appeals are directed against the award passed by the Motor Accidents Claims Tribunal, Perumbavoor, in O.P. (MV)No.1575/2000. MACA No.803/2006 is filed by the insurer of the offending vehicle and MACA No.1312/2006 is filed by the claimant. 2. The claimant’s elephant by name Ganesan sustained grievous injuries in a road traffic accident occurred on 30.8.2000. Thereafter it lived only for 21 days. The claimant filed a petition before the learned Tribunal claiming a sum of Rs.10 lakhs for his loss against which, the learned Tribunal awarded only Rs.2,23,140/- as compensation. 3. The insurance company would challenge the award on the ground that the learned Tribunal granted a sum of MACA Nos.803/2006 & 1312 of 2006 2 Rs.1,20,000/-, as the alleged loss of income from the elephant in addition to the entire loss caused due to the death of the elephant. 4. In the claimant's appeal, he would challenge the award on the ground that the Tribunal has deducted an amount of Rs.3,15,964/- from the compensation awarded to him on the ground that he had received that amount from the insurer of the elephant, on the basis of a separate policy issued in his name. 5. We have heard the learned counsel for the claimant and the learned senior counsel for the insurance company. The impugned award was also perused. 6. The learned Tribunal awarded the following amount under different heads: a) Towards value of the elephant - Rs.3,65,000/b) Towards taxi bills - Rs. 16,600/c) For cremation and postmortem - Rs. 27,500/d) For treatment - Rs. 10,000/- e) Towards loss of income - Rs.1,20,000/-. (The yearly income was assumed @ Rs.12,000/- per year and 10 was adopted as the multiplier). Thus, in total, the Tribunal arrived at a sum of Rs.5,39,100/- as compensation, out of which MACA Nos.803/2006 & 1312 of 2006 3 Rs.3,15,964/- was deducted as the claimant has received that much amount from the insurer of the elephant. 7. As stated at the outset, the main challenge raised by the insurance company is regarding the amount of compensation awarded for loss of earnings. We hold that the award of Rs.1,20,000/- as compensation for loss of income is unjustifiable for the reason that the claimant has approached the Tribunal claiming damage to property itself, i.e. the elephant and not for damages which resulted from the accident. Damage to property alone can be taken into account while awarding compensation in cases like this. We notice that the same view was expressed by a Division Bench of this Court in **General Manager, KSRTC** v **Saradamma** (1987 (2) KLT 135). Therefore, the award of Rs.1,20,000/- as compensation for loss of income from the elephant calls for interference. We deduct the aforesaid amount from the total amount of compensation. 8. The main grievance voiced against the award by the claimant is that the learned Tribunal has deducted a sum of Rs.3,15,964/- from the award amount on the ground that he has received compensation from the insurer of the elephant under a MACA Nos.803/2006 & 1312 of 2006 4 separate policy. This, according to the learned counsel for the claimant is unjustifiable because his right to claim compensation from the insurer of the elephant arose out of a separate contract. The learned senior counsel appearing for the appellant insurance company would submit that as the claimant had received a sum of Rs.3,15,964/- from the insurer of the elephant in full satisfaction of the amount, he cannot receive a further sum as additional compensation. The learned counsel for the appellant insurance company would submit that if the claimant has received the amount from the insurer of the elephant, it would be only after executing a letter of subrogation by which the claimant might have relinquished his entire right over the elephant. But, we notice that the letter of subrogation is not forthcoming in this case. The appellant insurance company could have summoned such records, if any, from the insurer of the elephant. 9. The learned counsel for the claimant would argue that the contract of the claimant with the insurer of the elephant is a separate contract and if any claim is received under the said contract, the same cannot be deducted from the compensation MACA Nos.803/2006 & 1312 of 2006 5 claimed from the owner or insurer of the offending vehicle. It is true that the claim amount realised by the claimant under a separate contract with the insurer of the property shall not be a bar from claiming compensation from the insurer of an offending vehicle, if the claimant could not receive just compensation from the insurer of the property. It is a settled law, that in cases claiming compensation for the death of individuals, the amount received by the claimants under a life insurance policy of the deceased shall not be taken into account while awarding compensation. However, in cases relating to damage to property, the amount received by the claimant under a separate policy insuring the property in question, has some relevance. This is because, in such cases, the compensation shall be subject to a cap, which is the actual value of the property. Otherwise, it will lead to an unjust enrichment. The claimant is also entitled to get other reasonable incidental expenses incurred by him. There may be instances, where the sum assured would be less than the actual value of the property. This may be because of the inability of the insured to pay a higher premium. In such cases, the amount which the claimant MACA Nos.803/2006 & 1312 of 2006 6 receives from his insurer may not be adequate compensation for the loss suffered and the same will not debar the claimant from realising the balance from the insurer of the offending vehicle as a third party. 10. In this case the appellant/ claimant could not recover the full amount which he is entitled to from the insurer of the elephant. Thus, he is entitled to get the balance amount from the insurer of the offending vehicle. The Tribunal has assessed the actual value of the elephant at Rs.3,65,000/-, on the basis of Ext.A11 sale deed under which, the claimant purchased the elephant. From this amount, the amount of compensation which the claimant has received from the insurer of the elephant was deducted. Such a deduction is legally permissible. 11. The result of the above discussion is that, out of the amount awarded by the learned Tribunal, a sum of Rs.1,20,000/-, which was awarded towards loss of income, shall stand deducted. Since the learned Tribunal has awarded the actual value of the elephant and other incidental expenses in connection with the treatment, cremation etc., the claimant is not entitled to get any further sum. MACA Nos.803/2006 & 1312 of 2006 7 In the result, MACA No.803 of 2006 is allowed and the impugned award shall stand modified as above. MACA No.1312 of 2006 shall stand dismissed. **SD/- PIUS C.KURIAKOSE, JUDGE** **SD/- A.V.RAMAKRISHNA PILLAI, JUDGE** css/ TRUE COPY p.s.to judge