Manager, Cholamandalam MS General Insurance Company Limited v Reji Thomas and Others

1 MACA No.1118 of 2022 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944 MACA NO. 1118 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 186/2019 OF ADDITIONAL ``` ## **`MOTOR ACCIDENT CLAIMS TRIBUNAL-I ,PATHANAMTHITTA APPELLANT/S:`** ``` MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED,REGISTERED AND HEAD OFFICE, DARE HOUSE , 2ND FLOOR,2 NSC BOSE ROAD, CHENNAI-600 001,NOW REPRESENTED ITS DEPUTY MANAGER - CLAIMS, ACEL ESTATE, IYYATTIL JUNCTION, CHITOOR ROAD,KOCHI, PIN - 682011 BY ADVS. P.JACOB MATHEW PREETHY R. NAIR MATHEWS JACOB (SR.) ``` ## **`RESPONDENT/S:`** ``` 1REJI THOMAS AGE 52 YEARS, ROBIN VILLA, VENMONY.P.O, VENMONY VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT., PIN - 689509 2VALSAMMA REJI AGED 54 ,ROBIN VILLA, VENMONY .P.O, VENMONY VILLAGE, CHENGANNUR TALUK, ALAPPUZHA.DISTRICT, , PIN - 689509 3REENA REJI AGED 28, ROBIN VILLA, VENMONY P. O, VENMONY VILLAGE, CHENGANNUR TALUK, ALAPPUZHA.DISTRICT., PIN - 689509 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 MACA No.1118 of 2022 **C.S DIAS,J. --------------------------MACA No.1118 of 2022 ----------------------------Dated this the 19[th] day of May, 2022.** ## **JUDGMENT** The third respondent-insurer in OP(MV) 186/2019 of the Additional Motor Accident Claims Tribunal-I, Pathanamthitta is the appellant. The petitioners in the claim petition are the respondents in the appeal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Robin Reji (deceased)/the son of the petitioners 1 and 2 and the brother of the third petitioner. The petitioners have averred in the claim petition that, on 9.1.2019, while the deceased was riding a motorcycle bearing registration No.KL-03/AA 7619 on the Kottayam- 3 MACA No.1118 of 2022 Kottarakkara public road, when he reached near Kulanada junction, a lorry bearing registration No.TN82/Y 3607(lorry), driven by the first respondent in a negligent manner, hit the motorcycle of the deceased. The lorry was owned by the second respondent and insured with the third respondent. The deceased had sustained fatal injuries and lost his life instantaneously. The deceased was a Mechanical Engineer who was only aged 21 years. The deceased had a notional income of Rs.20,000/-. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.30,00,250/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement, inter alia, refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the deceased. Nonetheless, the third respondent admitted that the lorry was validly insured with them. The third 4 MACA No.1118 of 2022 respondent also disputed the age, income and occupation of the deceased. Hence, the third respondent prayed for dismissal of the claim petition. 5. The petitioners had produced and marked Exts A1 to A12 in evidence. The respondents did not let in any evidence. 6. The Tribunal allowed the claim petition by permitting the petitioners to recover from the third respondent an amount of Rs.31,70,000/- with interest and cost. 7. Aggrieved by the allowing of the claim petition, the insurer is in appeal. 8. Heard; Sri.Mathews Jacob, the learned Senior Counsel appearing for the appellant/3rd respondentinsurer on the grounds for admitting the appeal. 9. The cardinal grounds of challenge in the memorandum of appeal are: (i) the Tribunal has erred in not finding the deceased liable for contributory negligence; (ii) the notional income of the deceased fixed at Rs.20,000/- per mensum was excessive; and, 5 MACA No.1118 of 2022 (iii) the interest awarded by the Tribunal is unreasonable. ## **Ground No.(i)** 10. Admittedly, as per Ext A6 charge-sheet laid by the Pandalam Police in crime No.124/2019, it is proved that the accident occurred due to the negligence of the first respondent. The respondents have not let in any evidence to discredit Ext A6 charge-sheet. 11. This Court in **New India Assurance Co.Ltd** **v. Pazhaniammal – [(2011) (3) KLT 648]** and a series of decisions has held that, as a general rule, in a claim petition filed under Sec.166 of the Act, 1988, if there is no evidence to the contrary, the charge-sheet can be accepted as evidence of negligence against the accused driver. If any party disputes the charge-sheet, the burden of proof is on such party to adduce evidence and discredit the charge-sheet. 12. Admittedly, in the case at hand, there is no material to discredit Ext A6 charge-sheet. Therefore, I do not find any error in the Tribunal finding that it was 6 MACA No.1118 of 2022 the first respondent who was negligent in causing the accident. Hence, I find ground No.(i) against the appellant. ## **Ground No.(ii)** 13. The specific case of the petitioners in the claim petition was that the deceased was a Mechanical Engineer by profession. To substantiate their contention they have produced Ext A11 certificate issued by the All India Technical Education Society, which shows that the deceased was a Mechanical Engineer. 14. The Tribunal relying on the educational qualifications of the deceased and considering the fact that the accident occurred in the year 2019, has fixed the notional monthly income of the deceased at Rs.20,000/-. 15. In a recent decision in **Basanti Devi and Anr vs Divisional Manager, New India Assurance Company Ltd [Live Law 2021 SC 728]** , the Hon’ble Supreme Court has fixed the notional monthly income 7 MACA No.1118 of 2022 of an engineering graduate, who lost his life in an accident on 10.3.2021 at the age of 25, at Rs.20,000/per month. 16. Likewise, a Division Bench of this Court in **National Insurance Company Ltd vs. Fathimath Zuhara @ Zuhra Razak and Anr** [2015 KLT 691] has fixed the notional monthly income of an Engineering student, who lost her life in an accident on 10/9/2005, on notional basis at Rs.12,000/- per month. 17. Following the yardstick in **Basanti Devi and Fathimath Zuhra** (supra)and taking into account the fact that the accident in the present case happened on 9.1.2019, I do not find any error or illegality committed by the Tribunal in fixing the notional monthly income of the deceased at Rs.20,000/- per month. Thus, I answer ground No.(ii) also against the appellant/third respondent/insurer. ## **Ground No.(iii )** 18. The Tribunal has directed the appellant to pay the compensation amount with interest at the rate of 8 MACA No.1118 of 2022 8% per annum from the date of petition till the date of realization with proportionate cost, which the appellant contends is unreasonable. 19. In **Kishan Gopal and another v. Lala and others – [(2014) 1 SCC 244]** and **Anjali Singh and Ors vs. Salauddin and Ors [(2014) 15 SCC 582]** , the Hon’ble Supreme Court has directed payment of interest @ 9% per annum in motor accident claim cases. Therefore, I do not find that the direction to pay interest @ 8% per annum on the compensation amount is excessive or unreasonable. Therefore, I answer ground No.(iii) also against the appellant. 20. On a consideration of the pleadings and materials on record and the elaborate findings rendered by the Tribunal and following the principles laid down in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC), **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] and **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others-** 9 MACA No.1118 of 2022 **[ ((2020) SCC Online 410],** I hold that the compensaton awarded by the Tribunl is reasondabe and just. 21. It is to be borne in mind that, the accident occurred on 9.1.2019. It is nearly three years since the petitioners have been knocking at the doors of the courts to get the compensation amount for the loss of their breadwinner. It is trite, that the Tribunals/Courts are permitted to do some guess work and also exercise their discretion in awarding reasonable and just compensation, for which there cannot be any straight jacket formula based on arithmetical exactitude. I find that the Tribunal has, after a threadbare analysis of the facts, judicially exercised its powers based on the provisions of the Act and the authoritative precedents of the Honourable Supreme Court, while arriving at the conclusion in the impugned award. The grounds urged in the memorandum of appeal does not warrant the appeal to be admitted, which would only be a wastage of judicial time and harassment to the respondents. 10 MACA No.1118 of 2022 22. The Honourable Supreme Court in **New India Assurance Co. Ltd. vs. Kiran Sing & Ors.** [2004 (AIR) SCW 4212] has deprecated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court, and wasting enormous time and money. In the result, in exercise of the powers of this Court under Order LXI Rule 11 of the Code of Civil Procedure and following the ratio decidendi in **Kiran Sing** (supra), I dismiss the appeal at the threshold. SD/- Sks/19.5.2022 **C.S.DIAS, JUDGE**