New India Assurance Company Ltd. v. Balán Nair E., Shyamalac, Shubha E., Manzoor Altaf, Nayaz So Dadavali, Biju S. (MACA 852 of 2011)

1 M.A.C.A.No.852 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA** **FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946** **MACA NO. 852 OF 2011** **AGAINST THE JUDGMENT DATED 22.12.2010 IN OPMV NO.281 OF 2008** **OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA** **APPELLANT/RESPONDENT NO.3:** **NEW INDIA ASSURANCE COMPANY LTD. NO.47, GOPAL COMPLEX, II FLOOR, BAZAR STREET, YESHWANTHPUR, BANGLORE-560 022.** **BY ADVS. LAL K.JOSEPH SURESH SUKUMAR** ## **RESPONDENTS:** - **1 BALAN NAIR E. S/O.GOPALAN NAIR, EDAPPATTOOR HOUSE,, P.O.KARUMALAL, BALUSSERRY, KOZHIKODE DISTRICT-685 051.** - **2 SHYAMALA.C W/O.BALAN NAIR.E, EDAPPATTOOR HOUSE,, P.O.KARUMALAL, BALUSSERRY, KOZHIKODE DISTRICT-685 051 .** - **3 SHUBHA.E, D/O.BALAN NAIR.E, EDAPPATTOOR HOUSE, P.O.KARUMALAL,, BALUSSERRY, KOZHIKODE DISTRICT-685 051 .** - **4 MANZOOR ALTAF S/O.M.D.AYUB, NO.53, NOHA STREET, BANGALORE-51.** - **5 NAYAZ SO.DADAVALI NO.248/4, 7TH CROSS, DODANNA ESTATE, PEENYA, 2ND CROSS, BANGALORE.** - **6 BIJU.S NO.10, 2ND CROSS,, CHURCH STREET, A.NARAYANAPURA,, BANGALORE. BY ADVS. SRI.P.A.HARISH SMT.RESMI NANDANAN SRI.V.V.SURENDRAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **HEARING ON 1.07.2024, THE COURT ON 26.7.2024 DELIVERED THE FOLLOWING:** 2 M.A.C.A.No.852 of 2011 ## **M.B.SNEHALATHA, J.** **------------------------------------------M.A.C.A.No.852 of 2011** **------------------------------------------Dated, this the 26[th] July, 2024** ## **JUDGMENT** The 3[rd] respondent insurance company in OP(MV) No.281/2008 on the file of Motor Accident Claims Tribunal, Vatakara [hereinafter referred to as ‘the Tribunal’] has preferred this appeal challenging the award passed by the Tribunal. 2. Parties in this appeal shall be referred to as claimants and respondents as shown in the O.P(MV). 3. On 28.9.2007 while victim Shibu was riding as a pillion rider of a motorcycle ridden by one Biju (R4 in the OP(MV)), a lorry bearing registration No.KA-37/5385 driven by R2 in a rash and negligent manner hit on the motor cycle, on account of which victim Shibu sustained fatal injury and he died on the spot. His parents and sister filed the claim petition before the Tribunal seeking compensation against R1 to R3 who are the RC owner, driver and insurer respectively of the offending lorry. 4. By the impugned award, the Tribunal awarded a sum of ₹16,25,000/- as compensation with interest at the rate of 7.5% per 3 M.A.C.A.No.852 of 2011 annum from 5.2.2008 till the date of realisation. 5. Challenging the said award, R3 insurance company has filed the instant appeal on the ground that the Tribunal went wrong in its finding that accident occurred due to the negligence of R2; that since the accident resulted due to the collision between two vehicles, it is highly improbable to put the entire blame on the lorry driver. It is further contended that the amount awarded by the Tribunal is highly exorbitant. In the absence of any evidence regarding the income, the amount awarded is excessive; that the multiplier applied for calculating the loss of dependency is wrong; that the Tribunal went wrong in adding 50% towards future prospects; that there was violation of policy conditions on the part of the insured and therefore R3 insurance company is to be exonerated from the liability. 6. Heard the learned counsel for both sides. Records perused. 7. It is an undisputed fact that the victim Shibu died in a motor vehicle accident on 28.9.2007 while he was travelling as a pillion rider of a motorcycle. The evidence on record would show that there is collision between the lorry bearing registration No.KA37/5385 and the motor cycle on which the victim was travelling. 4 M.A.C.A.No.852 of 2011 8. Though the counsel for the insurance company would contend that the accident occurred due to the negligence of the rider of the motorcycle, Ext.A6 charge sheet in respect of the incident filed by the investigating officer in the said crime would reveal that the accident occurred due to the rash and negligent driving of R2, who was the driver of the lorry. 9. Now let us see whether the contention of the R3 insurance company that the amount awarded by the Tribunal is excessive and exorbitant is tenable or not. 10. A perusal of the impugned award would reveal that the learned Tribunal has calculated the compensation taking the monthly income of the deceased as ₹16921/-. The Tribunal has added 50% of the said income towards future prospects. The Tribunal deducted 30% of the annual income towards income tax. The Tribunal has applied the multiplier 15 and thus calculated the amount under the head of loss of dependency. 11. The income of the deceased stands proved by salary certificate. The victim was employed in a private company. The future prospects to be added was 40% instead of 50% as rightly contended by the learned counsel for the insurance company. 12. In _National Insurance Co. Ltd. v. Pranay Sethi [(2017) 16_ 5 M.A.C.A.No.852 of 2011 _SCC 680]_ the Hon’ble Supreme Court has recognized the principle that there would be incremental enhancement in the case of even self-employed individuals in the unorganized sector and with respect to an unspecified job of a coolie considering the increase in cost of living and economic advancement over the years, it can be safely assumed that even a coolie worker would be eligible for incremental addition of ₹500/- in every subsequent year. 13. It is to be noted that the multiplier applied by the learned Tribunal was 15 based on the average age of the dependents. In a catena of decisions, the Hon’ble Apex Court has held that the age of the deceased should be the basis for applying the multiplier ( _National Insurance Co.Ltd. v. Pranay Sethi [(2017) 16 SCC 680] Reshma Kumari v. Madan Mohan and another [[(2013) 9 SCC 65) Royal Sundaram Alliance Insurance Company v. Mandala Yadagari Goud and others [(2019) AIR SC 1825], Munna Lal Jain and another vs. Vipin kumar Sharma and Others [2015(6)SCC 347)_ . Thus, it is no longer _res integra_ that it is the multiplier which is relevant to the deceased which shall apply. Accordingly, if '18' is applied as the multiplier, the compensation amount would exceed ₹16,25,000/- awarded by the Tribunal. Therefore, the contention of R3 insurance company that the amount awarded by the Tribunal is 6 M.A.C.A.No.852 of 2011 excessive and exorbitant is devoid of any merit. 14. In the absence of any cross objection or cross appeal, this Court cannot enhance the compensation in this appeal filed by R3 insurance company for reducing the compensation. 15. In _Ranjana Prakash and others v. The Divisional Manager and another_ reported in (2011) 14 SCC 639 the Hon’ble Supreme Court at para 6, 7 and 8 held as follows: “6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs.23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections. 7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award 7 M.A.C.A.No.852 of 2011 more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may. 8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.” 16. There is no merit in the contention of the R3 insurance company that the amount awarded by the Tribunal is excessive or exorbitant. The offending vehicle had valid insurance coverage as on the date of accident. But it has also come out in evidence that the driver of the lorry viz. R2 had no driving licence. Therefore, the Tribunal directed R3 insurance company to deposit the award amount with interest with a right to R3 to recover the amount from R2 who was the registered owner of the offending lorry. M.A.C.A.No.852 of 2011 8 In view of the findings rendered above, this Court finds no merit in the appeal filed by R3 insurance company. Hence, the appeal stands dismissed with cost. Sd/- **M.B.SNEHALATHA, JUDGE** ab