National Insurance Co. Ltd. v. Latha Devi N and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943** **MACA NO. 243 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 2382/2003 OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,TRISSUR** ## **APPELLANT/S:** NATIONAL INSURANCE COMPANY LTD. MANJERI NOW REP. BY ITS MANAGER,, KOCHI REGIONAL OFFICE, OMANA BUILDING,, M.G.ROAD, KOCHI-35. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENT/S:** 1 LATHA DEVI.N, W/O.LATE K.RAJA NARAYANAN, "KRISHNAKRIPA", PUTHURKKARA DESOM,, AYYANTHOLE VILLAGE, THRISSUR DISTRICT-680003. 2 VANDANA R.(MINOR) NOW REP. BY HER MOTHER LATHA DEVI N., "KRISHNAKRIPA",, PUTHURKKARA DESOM, AYYANTHOLE VILLAGE,, THRISSUR DISTRICT680003. 3 K.RUGUMINI, W/O.P.VIJAYA RAGHAVAN "KRISHNAKRIPA", PUTHURKKARA DESOM,, AYYANTHOLE VILLAGE, THRISSUR DISTRICT-680003. ADV.M.DINESH ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 17.02.2022 ALONG WITH MACA 2460/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA Nos 243/2011 and 2460/2016 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943** ## **MACA NO. 2460 OF 2016** **AGAINST THE ORDER/JUDGMENT IN OPMV 2382/2003 OF THE ADDITIONAL MOTOR** **ACCIDENT CLAIMS TRIBUNAL , TRISSUR** ## **APPELLANT/S:** 1 LATHA DEVI.N,AGED 39 YEARS AGED 39 YEARS, W/O. LATE RAJA NARAYANAN, RESIDING AT 'KRISHNKRIPA, PUTHURKKARA DESOM, AYYANTHOLE VILLAGE, THRISSUR TALATE LUK, THRISSUR DISTRICT 2 VANDANA R,AGED 19 YEARS, D/O. LATE RAJA NARAYANAN, RESIDING AT 'KRISHNKRIPA, PUTHURKKARA DESOM, AYYANTHOLE VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT 3 K. RUKGMINI,AGED 79 YEARS, M/O. P VIJAYARAGHAVAN, RESIDING AT 'KRISHNKRIPA, PUTHURKKARA DESOM, AYYANTHOLE VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT BY ADVS. SRI.M.DINESH SRI.T.SANJAY SRI.C.S.SUMESH ## **RESPONDENT/S:** 1 ANWAR SADIQUE,S/O. ABOOBACKER,MANAGING PARTNER, PULLOOR TRANSPORT, KARUVAMBRAM, MANJERI P.O, MALAPPURAM DISTRICT 2 AYYAPPAN N.T,AGED 49 YEARS, S/O. ARUMUGHAN N.T NELLIKKATHODI HOUSE, MANJERI P.O, MALAPPURAM DT, P.R ASOKAN, S/O. RAMAN 3 NATIONAL INSURANCE CO. LTD BRANCH OFFICE, KORAMBAYIL ARCADE, PADIKKAD ROAD, MANJERI P.O, MALAPPURAM DT BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 17.02.2022 ALONG WITH MACA 243/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA Nos 243/2011 and 2460/2016 ## **C.S.DIAS, J.** **====================== MACA Nos 243/2011 and 2460/2016 ====================== Dated this the 17[th] day of February, 2022.** ## **COMMON JUDGMENT** As the appeals arise out of the same award in OP (MV) No.2382/2003 on the file of the Additional Motor Accidents Claims Tribunal, Thrissur, they have been disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Sri.K.Raja Narayanan (deceased) - the husband of the first petitioner, the father of the second petitioner and the son of the third petitioner. It was their case that, on 12.6.2003, while the deceased was riding his motorcycle 4 MACA Nos 243/2011 and 2460/2016 bearing registration No.KL-7/AA 4726 through the Calicut-Kondotti public road, a bus bearing registration No.KL-10/C 9727, driven by the second respondent in a rash and negligent manner, hit the motorcycle of the deceased. The deceased sustained fatal injures and lost his life instantaneously. The bus was owned by the first respondent and insured with the third respondent. The deceased was a Sub Inspector in the Central Industrial Security Force, Calicut Airport and was drawing a monthly income of Rs.9,355/-. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.20,18,000/- from the respondents, which claim was limited to Rs.18,00,000/-. 3 The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent/insurer filed written statement denying the allegations in the claim petition. It 5 MACA Nos 243/2011 and 2460/2016 was contended that the accident occurred due to the negligence of the deceased. However, the third respondent admitted that the bus had a valid insurance coverage. The third respondent also disputed the age, income and occupation of the deceased. 5. The petitioners had produced and marked Exts A1 to A9 in evidence. The third respondent produced the insurance policy of the bus, which was marked as Ext B1. The salary certificate of the deceased was summoned and marked as Ext X1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioners to realise from the third respondent an amount of Rs.10,90,216/- with interest and as cost of Rs.20,000/- . 7. Aggrieved by the allowing of the claim petition, the third respondent/insurer has filed MACA 243/2011 6 MACA Nos 243/2011 and 2460/2016 and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners have filed MACA 2460/2016. 8. Heard; Sri.M.Dinesh, the learned counsel appearing for the appellants/petitioners in MACA 2460/2016 and Sri.P.Jacob Mathew, the learned counsel appearing for the third respondent/insurer in MACA 2460/2016, who is the appellant in MACA 243/2011. 9. The common questions that arise for consideration in the appeal are (i) whether the deceased had contributed to the accident, and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** 10. The petitioners had averred in the claim petition that the accident occurred due to the negligence of the second respondent. To substantiate their contention, they 7 MACA Nos 243/2011 and 2460/2016 had produced Exts A1 FIR, A2 postmortem report, A4 and A5 AMVI reports, A6 charge-sheet and A7 scene mahazar. 11. As per Ext A6 charge-sheet laid by the Kondotti Police in crime No.267/2003, it is proved that the accident occurred due to the negligence of the second respondent. The Tribunal, based on Ext A6 charge-sheet held that it was the second respondent who was negligent in causing the accident. 12. The learned counsel appearing for the third respondent/insurer submits that on going through Ext A7 scene mahazar, it can be seen that the deceased had also contributed to the accident. 13. The Hon'ble Supreme Court in **Jiju Kuruvila and ors v. Kunjujamma Mohan [2013 (9) SCC 166]** has held that no inference can be drawn on the basis of a s cene mahazar to attribute contributory negligence. 14. A Division Bench of this Court in **Kolavan v.** 8 MACA Nos 243/2011 and 2460/2016 **Salim** [2018 (1) KLT 489] has succinctly held that, once the charge-sheet is filed, the Tribunal will not be justified in finding negligence contrary to the finding in the charge-sheet, merely relying on the scene mahazar, without there being any direct or corroborative evidence. 15. The above legal position has been reiterated by another Division Bench of this Court in **New India Assurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648]. 16. In the case at hand, other than for the bare allegation in the written statement filed by the third respondent, that the deceased was negligent in causing the accident, the respondents have not let in any evidence to discredit Ext A6 charge-sheet. Therefore, the third respondent/insurer cannot bank upon Ext A7 and contend that the deceased had contributed to the accident. Hence, I confirm the finding of the Tribunal, that it was 9 MACA Nos 243/2011 and 2460/2016 the second respondent who was negligent in causing the accident. Since the third respondent has not proved that the first respondent had violated the insurance policy conditions, the third respondent is to indemnify the liability of the first respondent arising out of the accident and pay the compensation amount. ## **Question No.(ii)** ## **Notional Income** 17. The petitioners had pleaded that the deceased was a Sub Inspector in the Central Industrial Security Force, Calicut Airport and was drawing a monthly income of Rs.9,355/-. The said pleading is corroborated by Ext X1, which was summoned and marked in evidence. The Tribunal, on the basis of Ext X1, has fixed the net income of the deceased at Rs.9205/-. I find the course adopted by the Tribunal to be justifiable, especially since the income of the deceased did not exceed the income tax 10 MACA Nos 243/2011 and 2460/2016 slab at that point of time. Hence, I confirm the fixation of the monthly income of the deceased at Rs.9205/-. ## **Multiplier** 18. Admittedly, the deceased was aged 35 years at the time of the accident/death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '16'. ## **Personal living expenses of the deceased** 19. The petitioners were the wife, child and mother of the deceased, who are three in number. Following the principles in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** , one - third of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 20. In the light of the law laid down in **Sarla** 11 MACA Nos 243/2011 and 2460/2016 **Verma** and **Pranay Sethi** (supra), and considering the fact that deceased was aged 35 years at the time of his death and that he was permanently employed, I hold that the petitioners are entitled to future prospects @ 50%. ## **Loss of dependency** 21. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs.9205/-, the multiplier at 16, future prospects at 50% and after deducting one-third of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency of the petitioners at Rs.17,67,360/-, instead of Rs.9,57,216/awarded by the Tribunal. ## **Conventional/Traditional heads of compensation** 22. In paragraph 59.8 of **Pranay Sethi (supra)** it is held that the dependents of the deceased are entitled for 12 MACA Nos 243/2011 and 2460/2016 compensation under the conventional heads viz., ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 23. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd. [2021 SCC Online SC 967]** and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another [2021 SCC Online SC 1193]** , the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered 13 MACA Nos 243/2011 and 2460/2016 on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 24. In the instant case, the Tribunal has awarded an amount of Rs.7,000/- under he head ‘funeral expenses’, Rs.25,000/- under the head 'loss of estate' and Rs.30,000/under the head ‘loss of consortium’. 25. Following the parameters laid down in the aforecited decisions, I award the petitioners a further amount of Rs.9,500/- under the head ‘funeral expenses’, i.e., Rs.16,500/-, and scale down the compensation awarded under the head 'loss of estate' to Rs.16,500/- and enhance the compensation under the head 'loss of consortium' by a further amount of Rs.1,02,000/- , i.e., 14 MACA Nos 243/2011 and 2460/2016 Rs.44,000/- each to the petitioners, totalling to Rs.1,32,000/- . ## **Loss of love and affection** 26. The Tribunal has awarded an amount of Rs.25,000/- under the head 'loss of love and affection'. 29. In **New India Assurance Co. v. Somwati and others [(2020) 9 SCC 644]** the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of Rs.25,000/- awarded under the head 'loss of love and affection'. ## **Loss of expectation of life** 27. The Tribunal has also awarded an amount of Rs.20,000/- under the head 'loss of expectation of life'. Since the said amount is also an amount falling within the 15 MACA Nos 243/2011 and 2460/2016 purview of 'loss of consortium', I set aside the said amount. ## **Pain and sufferings** 28. The Tribunal has awarded an amount of Rs.20,000/- under the head ‘pain and sufferings’ to the petitioners. 29. In paragraph 19 of **Sarla Varma** (supra), the Honourable Supreme Court has held that no amount shall be awarded to the dependents of the deceased under the head 'pain and sufferings' in the case of instantaneous death. The said view has been reiterated in **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others- [ ((2020) SCC Online 410].** Hence, I set aside the amount of Rs.20,000/awarded under the head 'pain and sufferings' as the deceased had died instantaneously. 16 MACA Nos 243/2011 and 2460/2016 ## **Other heads of claim** 30. With respect to the other heads of claim, namely, transport to hospital and damage to clothing, I find that the Tribunal has awarded reasonable and just compensation. 31. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants /petitioners in MACA 2460/2016 are entitled for enhancement of compensation as modified and recalculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Transport to hospital|5,000/-|5,000/-| |2|Damage to clothing|1,000/-|1,000/-| |3|Pain and sufferings|20,000/-|Nil| |4|Loss of consortium|30,000/-|1,32,000/-| 17 MACA Nos 243/2011 and 2460/2016 |5|Loss of love and<br>affection|25,000/-|Nil| |---|---|---|---| |6|Funeral expenses|7,000/-|16,500/-| |7|Loss of estate|25,000/-|16,500/-| |8|Loss of expectation of<br>life|20,000/-|Nil| |9|Loss of dependency|9,57,216/-|17,67,360/-| ||Total|10,90,216/-|19,38,360/-| In the result, MACA 243/2011 is dismissed; and MACA 2460/2016 is allowed, by enhancing the compensation by a further amount of **Rs.8,48,144/-** with interest at the rate of 7% per annum from the date of petition till the date of realisation, after deducting interest for a period of 2040 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 16.11.2021 in C.M Appln No.1/2016, and proportionate cost. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of 18 MACA Nos 243/2011 and 2460/2016 the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants in MACA 2460 of 2016/petitioners, after deducting the liability towards court-fee, in the ratio of 40:40:20, and in accordance with law. Sd/- sks/17.2.2022 **C.S.DIAS, JUDGE**