New India Assurance Co. Ltd. v. Gomathy, Divya and Saravanan

**MACA NO. 150 OF 2022** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 14[TH] DAY OF JANUARY 2022 / 24TH POUSHA, 1943** **MACA NO. 150 OF 2022** **AGAINST THE JUDGMENT IN OP(MV) 1164/2014 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/3RD RESPONDENT:** THE NEW INDIA ASSURANCE COMPANY LTD. METTUPALAYAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADVS. GEORGE CHERIAN (SR.) ALEXY AUGUSTINE GEORGE A.CHERIAN ## **RESPONDENTS/PETITIONERS** 1 GOMATHY AGED 44 YEARS W/O.LATE SEKHAR, DOOR NO.27, THATHARA THERUVU P.O., VELLORE, TAMIL NADU, PIN - 632 002. 2 DIVYA AGED 29 YEARS D/O.LATE SEKHAR, DOOR NO.27, THATHARA THERUVU P.O., VELLORE, TAMIL NADU, PIN - 632 002. 3 SARAVANAN AGED 21 YEARS S/O.LATE SEKHAR, DOOR NO.27, THATHARA THERUVU P.O., VELLORE, TAMIL NADU, PIN - 632 002. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 150 OF 2022** **2** ## **JUDGMENT** The appellant/insurer was the 3[rd] respondent in O.P. (MV) No. 1164 of 2014 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the petitioners before the Tribunal. As the appellant has admitted its liability, the appellant has not impleaded the respondents 1 and 2 before the Tribunal as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per the 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 Sekhar (deceased), the husband of the 1st petitioner and father of the petitioners 2 and 3. It was the case of the petitioners **MACA NO. 150 OF 2022** **3** that, on 08.03.2014, while the deceased was driving a lorry bearing registration No.TN-23AC-6336, along the Palakkad-Thrissur National Highway, another lorry bearing registration No.TN 40B 3670 (offending lorry), driven by the 2[nd] respondent in a rash and negligent manner, hit the lorry of the deceased. 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 offending lorry. The deceased was a driver by profession and was earning a monthly income of Rs.16,000/-. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.33,66,500/- from the respondents, which claim was limited to Rs.30,00,000/-. 3. The 2[nd] respondent did not contest the proceeding and was set ex parte. 4. The 1[st] respondent had filed a written statement contending that the accident occurred due to the **MACA NO. 150 OF 2022** **4** negligence of the deceased. The 1[st] respondent stated that as the offending lorry was insured with the 3[rd] respondent, it was the 3[rd] respondent who has to indemnify the liability of the 1[st] respondent arising out of the accident. 5. The 3[rd] respondent-insurer had filed a written statement admitting that the offending lorry had a valid insurance policy. Nonetheless,the 3[rd] respondent disputed the age, income and occupation of the deceased. 6. The petitioners had produced and marked Exts.A1 to A15 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, particularly taking note of Ext.A12 salary certificate issued by the employer of the deceased, fixed the monthly salary of the deceased at Rs.16,000/and permitted the petitioners to recover from the 3[rd] respondent an amount of Rs.17,24,800/- with interest and **MACA NO. 150 OF 2022** **5** cost. 8. Aggrieved by the allowing of the claim petition, the 3[rd] respondent-insurer is in appeal. 9. Heard; Sri.George Cherian, the learned Senior Counsel appearing for the appellant/3rd respondentinsurer. 10. The principal grounds of challenge in the memorandum of appeal are: (i) the fixation of income of the deceased at Rs.16,000/- per month is wrong; (ii) the multiplicand adopted by the Tribunal is excessive; and (iii) the compensation allowed towards loss of dependency is on the higher side. ## **Ground No.(i)** 11 **.** The specific case of the petitioners in the claim petition was that the deceased was a professional driver working in Siva Sakthi Transport, Tamil Nadu. In order to substantiate their pleadings, they produced Ext.A12 salary certificate. The Tribunal accepted the said salary **MACA NO. 150 OF 2022** **6** certificate and fixed the salary of the deceased at Rs.16,000/- as stated in Ext.A12. The respondents have not let in any contra evidence to discredit Ext.A12 or to controvert the pleadings in the claim petition. 12. The learned counsel appearing for the appellant argued that the Hon'ble Supreme in **Chandra @ Chnada @ Chandraram v. Mukesh Kumar [** 2021 SCC Online 850] has fixed the notional monthly income of a driver who lost his life in an accident in the year 2016 at Rs.8,000/- Therefore, the fixation of the monthly income of the deceased at Rs.16,000/- is excessive. 13. In **Chandra** (supra), the Hon'ble Supreme Court had fixed the notional income of the deceased driver at Rs.8,000/- per month, only for the reason that the petitioners therein had not produced any material to substantiate the income of the deceased. 14. In the case at hand, the petitioners have produced Ext.A12 salary certificate issued by the employer **MACA NO. 150 OF 2022** **7** of the deceased and also Ext.A9 driving licence of the deceased to prove that he was a heavy vehicle driver. . 15. Liksewise, in **Minu Rout & Anr v. Satya Pradyumna Mohapatra & Others** [(2013) 10 SCC 695], the Hon'ble Supreme Court has fixed the notional monthly income of a driver who lost his life in an accident in the year 2004 at Rs.6,000/-. 16. Taking into account Ext.A12 salary certificate read by Ext.A9 driving licence and the fact that the accident occurred in the year 2014, I do not find any error in the Tribunal fixing the salary of the deceased at Rs.16,000/- as certified in Ext.A12. Hence, I answer Ground No.(i) against the appellant. ## **Ground No.(ii)** 17. In view of the finding on Ground No.(i), I hold that the multiplicand fixed by the Tribunal, following the principles in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)] and **National** **MACA NO. 150 OF 2022** **8** **Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] to be just and reasonable. Thus, I answer Ground No.(ii) also against the appellant. ## **Ground No.(iii)** 18. The deceased was aged 49 years at the time of the accident/death. The Tribunal has, following the ratio in **Sarala Verma** and **Pranay Sethi** (supra), fixed the multiplier at '11', deducted one- third of the compensation towards the personal living expenses of the deceased and added 10% towards future prospects, and accordingly awarded an amount of Rs.15,48,800/- for loss of dependency. I do not fiind any error or illegality in the compensation awarded by the Tribunal for loss due to dependency. 19. On a consideration of the pleadings and materials on record and the elaborate findings rendered by the Tribunal, following the principles in **Sarala Verma** and **Pranay Sethi** (supra), I hold that there is no error or **MACA NO. 150 OF 2022** **9** wong in the impugned award passed by the Tribunal. 20. It is to be borne in mind that, the accident occurred in the year 2014. It is more than seven years years since the petitioners have been knocking at the doors of the courts seeking compensation. It is trite, that the Tribunals 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. I am convinced that there are no justifiable reasons in the memorandum of appeal warranting admission of the appeal, which would only be a wastage of judicial time and harassment to the respondents who hail from Tamil Nadu. **MACA NO. 150 OF 2022** **10** 21. 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, following the ratio in **Kiran Sing & Ors.** (supra) and exercising the powers of this Court under Order LXI Rule 11 of the Code of Civil Procedure, I hold that the appeal is devoid of any merit and does not warrant to be admitted. Resultantly, I dismiss the appeal at the threshold. ma/14.01.2022 Sd/- **JUSTICE C.S.DIAS** ## **/True copy/**