National Insurance Company Ltd. v. Sabu and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 ``` ``` MACA NO.561 OF 2014 ``` ``` AGAINST THE AWARD DATED 22.10.2013 IN O.P.(MV)NO.1329 OF 2012 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ``` APPELLANT/3[RD] RESPONDENT IN THE OP: ``` ``` NATIONAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE COCHIN, REPRESENTED BY THE MANAGER, NATIONAL INSURANCE CO.LTD., KOCHI REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDINGS, PADMA JUNCTION, M.G.ROAD, KOCHI - 35. ``` ## **`BY ADV SRI.A.R.GEORGE`** ## **`RESPONDENTS/CLAIMANTS IN THE OP:`** ``` 1 MV SABU, AGED 45 YEARS, S/O.VARKEY, MADATHIPPARAMBIL HOUSE, KAKKAD, MAMALA P.O., (VIA), THIRUVANKULAM – 682 305. 2 BIGI SABU, AGED 41 YEARS W/O.M.V.SABU, -DO- -DO- 3 JOYAL SABU (MINOR), AGED 10 YEARS, S/O.M.V.SABU, REPRESENTED BY FATHER M.V.SABU,-DO- - DO- BY ADVS.SRI.ANIL S.RAJ SMT.ANILA PETER SMT.C.PRABITHA SMT.K.N.RAJANI SRI.J.VIVEK GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 MACA No.561 of 2014 ## **JUDGMENT** The appellant is the 3[rd] respondent in O.P.(MV)No.1329 of 2012 on the file of the Motor Accidents Claims Tribunal, Ernakulam, a claim petition filed by the respondents herein, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Sandra, the daughter of respondents 1 and 2, and the sister of the 3[rd] respondent, in a motor accident which occurred on 23.09.2011, at about 12.45 p.m., while she was returning to home in school bus bearing registration No.KL-40/B-620 owned and driven by respondents 1 and 2 therein and insured with the appellant herein. She was a student of Hagia Sofia Public School, Mattakuzhi. At the place of the accident, when the 2[nd] respondent stopped the school bus for Sandra to get down, her skirt came into contact with the beading of the door. Without getting any signal from the other staff of the bus, the 2[nd] respondent drove the bus. The bus door was automatically closed and Sandra was dragged on the road, resulting in serious injuries. She succumbed to the injuries on the way to the hospital. Alleging that the accident occurred due to rash and negligent driving of the bus by the 2[nd] respondent driver, a claim petition was filed before the Tribunal, claiming a total compensation of Rs.5,00,000/- under 3 MACA No.561 of 2014 various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver of the bus remained absent and they were set _ex parte_ . The 3[rd] respondent insurer (appellant herein) filed written statement admitting the policy coverage of the bus involved in the accident; however, denying the negligence alleged against its driver. The insurer contended that the accident occurred while the deceased was trying to cross the road negligently. The insurer disputed the age and other details of the deceased, as stated in the claim petition, and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A4 were marked on the side of the claimants. Both sides have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of school bus by the 2[nd] respondent driver. Since insurance coverage of the vehicle was not in dispute, the appellant-3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.3,99,000/- together with interest at the rate of 8% per annum from the date of petition, till 4 MACA No.561 of 2014 realisation, with proportionate cost from respondents 1 to 3 and directed the insurer to deposit the award amount before the Tribunal, within one month from the date of receipt of a copy of the award. 5. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Heads|Amount<br>claimed|Amount<br>awarded<br>(In Rs.)|| |---|---|---|---| |Loss of dependency|540000|324000|(3000 – ½ of<br>3000)x12x18| |Transport to Hospital|10000|10000|| |Funeral Expenses|10000|10000|| |Damage to clothes<br>and articles|0|0|| |Attendant Expenses|0|0|| |Medical Expenses|10000|0|| |Compensation<br>for<br>pain and sufferings|20000|0|| |Compensation<br>for<br>consortium|0|0|| |Compensation<br>for<br>love and affection|30000|30000|| |Compensation<br>for<br>estate|5000|5000|| |Compensation<br>for<br>mental<br>shock<br>and<br>agony|20000|20000|| |Compensation<br>for<br>loss of guidance and<br>support|30000|0|| |Compensation<br>for<br>loss of expectation of<br>life|30000|0|| |Total|705000|399000|| |Claim<br>limited<br>to<br>Rs.5,00,000/-|||| 5 MACA No.561 of 2014 6. Challenging the quantum of compensation awarded by the Tribunal under various heads, the appellant-3[rd] respondent insurer is before this Court in this appeal, by contending that the compensation awarded by the Tribunal is on the higher side. 7. On 26.02.2014, when this appeal came up for admission, this Court issued notice by speed post to the respondents-claimants. This Court granted an interim stay of execution of the award in O.P.(MV)No.1329 of 2012 of the Motor Accidents Claims Tribunal, Ernakulam, for a period of three months, on condition that the appellant shall deposit Rs.3,00,000/- in the court below within one month. On such deposit being made, the claimants were permitted the withdraw the same. 8. On 17.09.2021, when this appeal came up for consideration, this Court admitted the matter on file. Since the respondents-claimants entered appearance through counsel, service was declared complete. 9. Heard the learned Standing Counsel for the appellant3[rd] respondent insurer and also the learned counsel for respondents-claimants. 10. The learned Standing Counsel for the appellant-3[rd] respondent insurer would contend that the amount of 6 MACA No.561 of 2014 compensation awarded by the Tribunal is on the higher side, which warrants interference. 11. On the other hand, the learned counsel for the respondents-claimants would contend that the compensation awarded by the Tribunal under various heads cannot be said to be on the higher side. ## 12. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC** **484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. ## 13. In **National Insurance Company Ltd. v. Pranay** **Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be 7 MACA No.561 of 2014 determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 14. During the course of arguments, the learned counsel for the respondents-claimants would point out the decision of the Apex Court in **Kishan Gopal and another v. Lala and others [(2014) 1 SCC 244]** , in support of her contention that the amount of compensation awarded by the Tribunal cannot be said to be highly excessive, as contended by the appellant-3[rd] respondent insurer. The learned counsel would rely on paragraph 39 of the said decision, which reads thus; “39. In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/and further taking the young age of the parents, namely, the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in Sarla Verma v. DTC, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 = 4,50,000 and 50,000 under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC v. 8 MACA No.561 of 2014 Susamma Thomas, which is referred to in Lata Wadhwa case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000 under conventional heads. On our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants.” 15. In the light of the law laid down by the Apex Court in **Kishan Gopal [(2014) 1 SCC 244]** , it cannot be said that the amount of compensation awarded by the Tribunal is highly excessive. 16. In such circumstances, this court finds no merit in the challenge made by the appellant-3[rd] respondent insurer against the impugned award of the Tribunal. The appeal fails and the same is, accordingly, dismissed. The appellant-3[rd] respondent insurer is directed to deposit the balance amount, together with interest and cost, within one month from the date of receipt of a certified copy of this judgment. The disbursement of the said amount to the respondents-claimants shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. On such deposit being made, it would be open to the respondents- 9 MACA No.561 of 2014 claimants to approach the Tribunal for disbursal of the same. Sd/- ## **ANIL K. NARENDRAN, JUDGE** AV/22/6