National Insurance Company Ltd. v. Suja James, Jaicy James, Jose James, Chacko Joseph and Naithy

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 ``` ## **`MACA NO. 2466 OF 2016`** ## **`AGAINST THE DECREE/AWARD IN OP(MV) 258/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA`** ## **`APPELLANT:`** ``` NATIONAL INSURANCE COMPANY LTD KANJIRAPALLY NOW REPRESENTED BY ITS MANAGER KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G ROAD, KOCHI 35. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SMT.PREETHY R. NAIR ``` ## **`RESPONDENTS:`** ``` 1SUJA JAMES VADAKKETHARA HOUSE, KIDANGOOR P.O, PIN 686 572 2JAICY JAMES D/O. JAMES, VADAKKETHARA HOUSE, KIDANGOOR P.O, PIN 686 572 3JOSE JAMES S/O. JAMES, VADAKKETHARA HOUSE, KIDANGOOR P.O, PIN 686 572 4CHACKO JOSEPH, VADAKKETHARA HOUSE, KIDANGOOR P.O, PIN 686 572 5NAITHY W/O. CHACKO, VADAKKETHARA HOUSE, KIDANGOOR P.O, PIN 686 572 BY ADV SRI.S.PRASANTH SMT.STEPHANY SHARON ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`MACA NO. 2466 OF 2016 2`** ## **`JUDGMENT`** This appeal has been impelled by the National Insurance Company Ltd., impugning the Award of the Motor Accidents Claims Tribunal, Pala (‘Tribunal’ for short) in O.P(MV)No.258 of 2013, on various grounds. 2. Sri.Mathews Jacob – learned Senior Counsel, instructed by Sri.P.Jacob Mathew – learned counsel for the appellant, argued that Tribunal has grossly erred in fixing the liability on his client because the vehicle which was involved in the accident was, in fact, substituted by the one driven by respondent No.1, with an unholy intention of obtaining gratification to the claimants; and hence that his client ought to have been fully exonerated from such liability. 3. As an adscititious argument, the learned Senior Counsel submitted that, in any event, the amounts granted in the Award are in excess because, not more than Rs.15,000/- could have been awarded by the Tribunal under the heads ‘Funeral Expenses’ and ‘Loss of Estate’; while under the head ‘Loss of Consortium’, only of Rs.40,000/could have been given, especially when the claimants had asked only Rs.50,000/-. He argued that, except the wife of the deceased, other claimants are all major children and the parents of deceased, who are not entitled to any compensation for ‘Loss of Dependency’, since they ## **`MACA NO. 2466 OF 2016 3`** were not dependent on him. The learned Senior Counsel, therefore, prayed that this appeal be allowed. 4. Smt.Stephany Sharon – learned counsel appearing for respondent No.3, argued that the contentions of the appellant are untenable and without basis, particularly when the documents on record, especially Ext.A6 - Charge Sheet, clearly show that the accident occurred on account of the negligence of the rider of the offending Autorickshaw. She argued that, without the rider and owner of the vehicle being arrayed as a party in this case, no such argument could be ever countenanced; and that, in any event, the Award now settled by the Tribunal is justified and commensurate to the trauma suffered by her clients. 5. I have considered the afore rival submissions and have also gone through the documents and evidence on record – copies of which have been made available across the Bar by the learned counsel for the parties, with the specific agreement that this Court can rely upon the same without dispute. 6. Going by the undisputed facts in this case, Late James was involved in an accident, allegedly on account of the rash and negligent driving of an Autorickshaw, which was owned by the original 2[nd] respondent and driven by the original 1[st] respondent in O.P(MV)No.258 ## **`MACA NO. 2466 OF 2016 4`** of 2013 (who will hereinafter be referred to as the “owner” and “driver” respectively, wherever required). Sri.James succumbed to the injuries and his wife, children and parents filed O.P(MV)No.258 of 2013 before the Tribunal. 7. A contention was impelled on behalf of the appellant before the Tribunal, that the offending vehicle was not the Autorickshaw, but a Jeep; and that it was on account of a collusion between the cousin of Late James - a certain Sri.Justine, and the “owner” and “driver” of the Autorickshaw, that the Police had settled Ext.A6 – Charge Sheet. As seen above, they also say that the amounts granted in favour of the respondents, under some of the heads, are incorrect. 8. However, when one examines the evidence on record, it is indubitable that, soon after the accident, Ext.A1 – FIR was registered, based on Ext.A2 First Information Statement. No doubt, the informant did not know the vehicle involved and therefore, what is recorded therein was that it is an “unidentified” one. 9. However, RW2 - who is the investigating officer of the Police Department, deposed that since the vehicle was untraceable after the accident, it took some time for the Police to complete investigation; and that the offending vehicle was thereafter traced and its owner and driver implicated in the offence, nearly four months later. His ## **`MACA NO. 2466 OF 2016 5`** deposition, which remains unchallenged, is to the specific effect that Ext.A6 – Charge Sheet contains the details of the offending vehicle, as also that of the “driver” and “owner”; and that the accident occurred on account of the negligence of the driver. He has also explained that the investigation took time and that it is, therefore, that the names of the “owner” and “driver” and the identity of the vehicle were incorporated nearly four months later. 10. The evidence of RW3 remains unimpeached even in crossexamination; and I do not, therefore, see how the appellant can now still allege that the offending vehicle was not the Autorickshaw, but another one. There is absolutely no evidence led by them in substantiation of their plea, except that they rely on Exts.A1 and A2 - which are the FIR and First Information Statement respectively, registered and recorded soon after the accident occurred, in which certainly, the informant did not have the details of the identity of the vehicle. This, by itself, cannot discredit the evidence of RW3, who is a Police Officer and whose credibility has not even been attempted to be assailed by the appellant during examination. 11. That said, this Court is now enjoined to consider whether the Award settled by the Tribunal is in order. 12. In this regard, I find some force in the submission of the ## **`MACA NO. 2466 OF 2016 6`** learned Senior Counsel that, under the heads ‘Funeral Expenses’ and ‘Loss of Estate’, not more than Rs.15,000/- each could have been awarded, going by the judgment of the Hon’ble Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662].**_ 13. Further, as regards the income of the deceased, the learned Senior Counsel argues that since the accident happened in the year 2012 and since the victim was 53 years at that time, only 10% “Future Prospects” could have been granted, contrary to 15% which has now been reckoned. 14. Here, again, I find favour with the submissions of the learned Senior Counsel because only 10% could have been offered as “Future Prospects” going by the judgment in _**Pranay Sethi (Supra);**_ but when it comes to fixing of notional income, I do not think that the Tribunal has erred. This is because, as per the standardization adopted by the Hon’ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],**_ the notional income of a person, which is unascertainable in the year 2012, is Rs.8,500/-; while what has been adopted by the Tribunal is only Rs.8,000/-. Therefore, adding 10% “Future Prospects” to this, which is admitted, the income reckonable for the deceased would have been Rs.9,350/-, instead of Rs.9,200/- as has been now adopted by the ## **`MACA NO. 2466 OF 2016 7`** Tribunal. 15. Obviously, therefore, the Award under the head ‘Loss of Dependancy’ does not require to be touched upon because, even assuming that the percentage for “Future Prospects” adopted is wrong, the claimants would be entitled to have the income of the victim fixed to a larger figure, as I have already explained above. 16. Before I close, I must also deal with another argument of the learned Senior Counsel that, ‘Loss of Consortium’ could have been awarded only to the wife of the deceased and not to his children because, they were all major and not depended upon him. His argument is also that, in such regard, only Rs.40,000/- could have been awarded, instead of Rs.1 Lakh as has been now done by the Tribunal. 17. I am afraid that I cannot find favour with the afore contention at all because, the question of dependency is one of the facts, which the appellant ought to have pleaded and proved specifically. Merely because the children of the deceased were major, it would not mean that they were not depended upon him; and unless it was properly proved, the Tribunal certainly could have granted each of them Rs.40,000/-, even going by _**Pranay Sethi (Supra).**_ However, what has been granted by the Tribunal is only Rs.1 Lakh; and therefore, I do not think that this Court requires to modify it in any manner whatsoever. ## **`MACA NO. 2466 OF 2016 8`** The contentions of the appellant in this regard are, therefore, repelled. In the afore circumstances, I allow this appeal in part, with the following directions: (a) The amount granted under the head ‘Funeral Expenses’ is reduced to Rs.15,000/-, from Rs.25,000/- as now ordered by the Tribunal. (b) The amount under the head ‘Loss of Estate’ is reduced to Rs.15,000/-, from Rs.25,000/- as has been now awarded by the Tribunal. In all other respects, the impugned Award of the Tribunal will remain unaltered. Needless to say, any amount already deposited before the Tribunal will be eligible to be received by the claimants/respondents in this appeal. **Sd/-** ## **`DEVAN RAMACHANDRAN JUDGE`** ## **`MC/1.2`**