National Insurance Company Ltd v. Madhusoodhanan Pillai and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 19[TH] DAY OF JANUARY 2022 / 29TH POUSHA, 1943** ## **MACA NO. 146 OF 2022** **AGAINST THE AWARD DATED 22.7.2021 IN O.P (MV) NO.197/2016 ON THE FILE OF THE** ## **MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR** ## **APPELLANT/3RD RESPONDENT IN O.P (MV)** NATIONAL INSURANCE COMPANY LTD BUSINESS CENTRE, 1ST FLOOR, SUNSHINE BUILDING, NEAR EAST G.H.S. ANCHAL, ANCHAL P.O., KOLLAM DISTRICT 691 306, REPRESENTED BY ITS ADMINISTRATIVE OFFICER (LEGAL), NATIONAL INSURANCE COMPANY LIMITED, KOCHI REGIONAL OFFICE, OMANA BUILDING, JEW STREET, KOCHI - 682 035, PIN - 682035 BY ADVS. P.G.JAYASHANKAR P.K.RESHMA (KALARICKAL) REVATHY P. MANOHARAN S.RAJEEV (K/001711/2019) SAJANA V.H ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1 & 2 IN O.P (MV):** - 1 MADHUSOODHANAN PILLAI, AGED 61 YEARS S/O RAGHAVAN PILLAI, VENUS, KULAPPARA, PERUMPUZHA P.O., KOTTARAKKARA VILLAGE, KOLLAM DISTRICT, PIN-691 504, PIN - 691504 2 USHA DEVI B AGED 59 YEARS W/O MADHUSOODHANAN PILLAI, VENUS, KULAPPARA, PERUMPUZHA P.O, KOTTARAKKARA VILLAGE, KOLLAM DISTRICT, PIN-691 504, PIN - 691504 - 3 UMA M, AGED 34 YEARS D/O MADHUSOODHANAN PILLAI, VENUS, KULAPPARA, PERUMPUZHA P.O, KOTTARAKKARA VILLAGE, KOLLAM DISTRICT, PIN-691 504, PIN - 691504 - 4 RAJAN M.S. S/O SANKARAN, SYAM NIVAS, KADAMUKKU, PULLAYIL, PORUNTHAMAN, PULLIMATH, KILIMANOOR, TRIVANDURM, PIN - 695 601, PIN - 695601 - 5 PRATHEESH P S/O PRABHA, PREETHI NIVAS, MELVETTOOR P.O, VARKALA, THIRUVANANTHAPURAM - 695 312, PIN - 695312 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **17.01.2022, THE COURT ON 19.1.2022 DELIVERED THE FOLLOWING:** **MACA No.146 of 2022** **2** ## **C.R.'** ## **C.S DIAS,J. --------------------------MACA No.146 of 2022** **-----------------------------** ## **Dated this the 19[th] January, 2022** ## **JUDGMENT** The 3[rd] respondent – insurer in O.P. (MV) No. 197 of 2016 of the Motor Accidents Claims Tribunal, Punalur is the appellant. The petitioners and respondents 4 and 5 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 Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Mahesh (deceased) - the son of the petitioners 1 and 2 and the **3** ## **MACA No.146 of 2022** brother of the 3[rd] petitioner. The petitioners have averred in the claim petition that, on 13.4.2016, while the deceased was riding a motorcycle bearing registration No.KL-02AT/1335 along the Kollam-Schencottah National Highway, a private bus bearing Reg.No. KL-16 H/2223 (Bus), driven by the 2[nd] respondent in a negligent manner and on the wrong side, hit the motorcycle. The deceased sustained fatal injuries and lost his life instantaneously. The 1st respondent was the owner and the 3[rd] respondent was the insurer of the bus. The deceased was an Electrical and Electronic Engineer and was an aspirant to the post of Assistant Engineer in the Kerala State Electricity Board. He would have drawn a monthly salary of Rs.30,000/-. The petitioners were dependant on the deceased. Accordingly, the petitioners claimed a compensation of Rs.75,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. The 3rd respondent **MACA No.146 of 2022** **4** had filed a written statement, inter alia, refuting the allegations in the claim petition and contending that the accident occurred due to the negligence of the deceased, and at any rate, the deceased was guilty for contributory negligence. The 3[rd] respondent also disputed the age, income and occupation of the deceased. The 3[rd] respondent prayed for complete exoneration of its liability. 4. The 1[st] petitioner examined himself as PW1 and marked Exts.A1 to A28 in evidence. The respondents did not let in any evidence. 5. The Tribunal allowed the claim petition, in part, by permitting the petitioners to recover from the 3[rd] respondent-insurer an amount of Rs.31,59,000/- with interest and cost. 6. Aggrieved by the allowing of the claim petition, the insurer is in appeal. 7. Heard; Sri.P.G.Jayashankar, ably assisted by **MACA No.146 of 2022** **5** Kum.P.K.Reshma, the learned counsel appearing for the appellant/insurer. 8. The cardinal grounds of challenge in the memorandum of appeal are:(i) the fixation of the notional monthly income of the deceased at Rs.20,000/- is erroneous; and (ii) in the light of the principles laid down by the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the notional monthly income of the deceased could only have been fixed at Rs.10,500/-. 9. As the grounds (i) and (ii) are intertwined, they are being considered together. 10 **.** Sri.P.G.Jayashankar strenuously argued that, even though the deceased had completed his Engineering Course from the King's College of Technology in April, 2014, he passed the examinations only in 2015. Hence, the allegation that the deceased **MACA No.146 of 2022** **6** was offered a job abroad, as per Exts.A27 and A28, is incorrect. Consequentially, the fixation of the monthly income of the deceased on a notional basis at Rs.20,000/was on the higher side. To fortify his submission, he placed reliance on the decision of the Hon'ble Supreme in **Meena Pawaia and Others v. Ashraf Ali and Others** [AIR Online 2021 SC 1044],wherein, the Hon'ble Supreme Court while deciding the case of an Engineering student, who lost his life in an accident on 12.09.2012, fixed the notional monthly income at Rs.10,000/- per month. He also relied on the decision of the High Court of Madras in **J.Chitra. v. R.Deena Dhayalan & Another** [2019 KHC 5324], wherein, the notional monthly income of an unemployed Civil Engineer was fixed at Rs.15,000/-. Hence, he contended that the Tribunal ought to have fixed the notional monthly income of the deceased at Rs.10,500/- and nothing more, following the principles in **Ramachandrappa** (supra). **MACA No.146 of 2022** **7** ## **Grounds (i) and (ii)** 11 **.** Ext.A5 final report filed by the Kundara Police in Crime No.856/2016 establishes that the accident occurred due to the negligence of the 2[nd] respondent. Indisputably, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the bus. The respondents have not let in any evidence to discredit Ext.A5 final report or controvert the pleadings in the claim petition. Likewise, the 3[rd] respondent-insurer has not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. 12. The 1[st] petitioner was examined as PW1. He produced, marked and proved Exts.A1 to A28. The respondents have not let in any evidence to the contrary to controvert the assertions in the claim petition or discredit Exts.A1 to A28. Even though PW1 was crossexamined, nothing was brought out to besmirch his oral **MACA No.146 of 2022** **8** testimony. 13. Exts.A10 and A11 certificates of merit proves that the deceased was a meritorious student. Similarly, Ext.A13 to A18 Grade Certificates shows the marks secured by the deceased. Ext.A19 course certificate prove that the deceased is an Engineer. Ext.A22 certificate of participation substantiate that the deceased had participated in a quiz competition conducted by the Centre Training Services Pvt.Ltd in August-October, 2013. 14. The submission of the learned counsel for the appellant, that the deceased had not cleared all the papers in first chance is without any foundation or material and is, therefore, outrightly rejected. 15. In a recent decision in **Basanti Devi and** **Another v. The New India Insurance Co.Ltd & Others** [(Civil Appeal Nos.7435-7436 of 2021 – Live Law 2021 SC 728] , the Hon'ble Supreme Court has fixed the **MACA No.146 of 2022** **9** notional monthly income of an Engineering Graduate, who lost his life in an accident on 10.3.2011 at the age of 25 years, at Rs.20,000/- . 16. In **National Insurance Co.Ltd v. Fathimath Zuhara @ Zuhra Razak and Another** [2016 KHC 691] , a Division Bench of this Court has fixed the monthly income of an Engineering student, who lost her life in an accident on 10.9.2005, notionally at Rs.12,000/-. 17. Following the yardsticks in **Basanti Devi** and **Fathimath Zuhara** (supra) and taking into account the fact that the accident in the present case happened on 13.4.2016, I do not find any error or illegality in the Tribunal fixing the monthly income of the deceased notionally at Rs.20,000/-. Therefore, I answer Ground Nos. (i) and (ii) against the appellant – 3[rd] respondent/insurer. 18. On a consideration of the pleadings and materials on record and the elaborate findings rendered **MACA No.146 of 2022** ## **10** by the Tribunal, following the principles laid down in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] and **Magna General Insurance Ltd v. Nanu Ram @ Chuhru Ram and Others [** (2018) 18 SCC 130] , I hold that the compensation awarded by the Tribunal is reasonable and just. 19. It is to be borne in mind that, the accident happened in the year 2016. It is nearly six years since the petitioners have been knocking at the doors of the Tribunal, seeking compensation on account of the death of their bread-winner. 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 formula based on arithmetical exactitude or jacket precision. 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 **MACA No.146 of 2022** **11** 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. 20. The Honourable Supreme Court in **New India Assurance Co. Ltd. vs. Kiran Singh & 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 Singh** (supra), I dismiss the appeal at the threshold. ma/18.01.2022 Sd/- **JUSTICE C.S.DIAS**