New India Assurance Company Ltd. v. Haseena M., Aysha P.K., Jameela P.K., Noushad N.T., Nishad N.T., Nazeeda

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943** **MACA NO. 2445 OF 2021** **AGAINST THE AWARD DATED 27.08.2020 IN OP(MV)NO.1800/2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.** ## **APPELLANT/THIRD RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LTD., 1ST FLOOR,POOTHERI BUILDING, RAILWAY STATION ROAD, FEROKE, KOZHIKODE-673 631, REP BY THE DULY AUTHORISED SIGNATORY, ASST. MANAGER, REGIONAL OFFICE, ERNAKULAM,PIN-682 011** **BY ADV RAJAN P.KALIYATH** ## **RESPONDENTS/ PETITIONERS & RESPONDENTS 4 TO 6:** - **1 HASEENA M, W/O. DECEASED JALALUDHEEN.P.K., RESIDING AT PULIKKALAKATHKANNAPPANTHODI POST PERUMUGHAM, KALLAMPARA, FEROKE, CALICUT-673 631** **2 AYSDHA.P.K., AGED 17 YEARS, D/O. DECEASED JALALUDHEEN,(MINOR), RESIDING AT PULIKKALAKATHKANNAPPANTHODI POST PERUMUGHAM, KALLAMPARA, FEROKE, CALICUT-673 631** - **3 JAMEELA.P.K., AGED 67 YEARS, W/O. PAREEKUTTY, MOTHER OF DECEASED JALALUDHEEN.P.K., RESIDING AT PULIKKALAKATHKANNAPPANTHODI POST PERUMUGHAM, KALLAMPARA, FEROKE, CALICUT-673 631** **4 NOUSHAD.N.T., AGED 39 YEARS, S/O. AHAMMEDKUTTY, BROTHER OF DECEASED JALALUDHEEN.P.K., RESIDING AT NEELEDATH THACHOLI HOUSE,** M.A.C.A.No.2445/2021 -:2:- **VALLIKUNNU NORTH POST, KADLUNDI NAGARAM, MALAPPURAM DISTRICT, PIN-673 314** **5 NISHAD.N.T., AGED 37 YEARS, S/O. AHAMMEDKUTTY, BROTHER OF DECEASED JALALUDHEEN.P.K., RESIDING AT NEELEDATH THACHOLI HOUSE, VALLIKUNNU NORTH POST, KADLUNDI NAGARAM, MALAPPURAM DISTRICT, PIN-673 314** **6 NAZEEDA, D/O. AHAMMEDKUTTY, SISTER OF DECEASED JALALUDHEEN.P.K., RESIDING AT NEELEDATH THACHOLI HOUSE, VALLIKUNNU NORTH POST, KADLUNDI NAGARAM, MALAPPURAM DISTRICT, PIN-673 314** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2445/2021 -:3:- _Dated this the 10[th] day of September,2021_ ## **J U D G M E N T** The appellant - insurer - was the third respondent in O.P (MV)No.1800/2018 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The respondents 1 to 3 in the appeal were the petitioners and respondents 4 to 6 were respondents 4 to 6 before the Tribunal. 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 _,(in short 'Act')_ claiming compensation on account of the death of 'Jalaludheen'(deceased), the husband of the first petitioner, the father of the second petitioner, the son of the third petitioner and the brother of respondents 4 to 6. It was the case of the petitioners that, on 29.03.2018, while the deceased was riding on M.A.C.A.No.2445/2021 -:4:- a motorcycle bearing registration No.KL-11/ AB-683 (motorcycle) from Feroke to Kallanpara, when he reached the place near Alaija Rubber Factory, a tipper lorry bearing registration No.KL-55/E-7600(lorry), driven by the second respondent in a rash and negligent manner, hit the motorcycle of the deceased. Even though the deceased was rushed to the hospital, he lost his life on 31.03.2018. The deceased was a painter by profession and earning a monthly income of Rs.24,000/-. The lorry belonged to the first respondent and was insured with the third respondent. The petitioners claimed that they were the dependants of the deceased. Hence, they claimed a compensation of Rs.35,00,000/- from the respondents. 3. The respondents 2, 4 to 6 did not contest the proceedings and were set _ex parte_ . 4. The first respondent filed a written statement admitting that he was the owner of the lorry. However, M.A.C.A.No.2445/2021 -:5:- it was contended that the accident occurred due to the negligence of the deceased. The first respondent has also disputed the age, occupation and income of the deceased. 5. The third respondent filed a written statement admitting that the lorry had a valid insurance coverage. It was reiterated that the accident occurred due to the negligence of the deceased. 6. The petitioners produced and marked Exts.A1 to A5 in evidence. The respondents did not let in any evidence. 7. The Tribunal allowed the claim petition, by directing the third respondent to pay the petitioners an amount of Rs.22,80,000/- with interest and costs in the ratio of 50:40:10. 8. Aggrieved by the award, the appellant/third respondent/insurer is in appeal. 9. Heard; Sri. Rajan P.Kaliyath, the learned M.A.C.A.No.2445/2021 -:6:- counsel appearing for the appellant/third respondent. 10. The principle grounds of challenge in the memorandum of appeal are: _(i) the notional income fixed by the Tribunal is on the higher side;_ _and_ - _(ii) the Tribunal ought not have granted interest at the rate of 9% per annum on the compensation amount._ ## **Ground No.(i)** 11. The petitioners had averred in the claim petition that the deceased was a painter by profession and earning a monthly income of Rs.24,000/-. Nevertheless, the Tribunal fixed the notional income of the deceased at Rs.15,000/-. 12. In _**Ramachandrappa v. Manager, Royal**_ ## _**Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year M.A.C.A.No.2445/2021 -:7:- 2004, at Rs.4,500/- per month. 13. In _**Pushkar Mehra v. Brij Mohan Kushwala and others**_ [(2015)12 SCC 688], the Hon'ble Supreme Court has fixed the notional income of a skilled labourer in the year 2010, at Rs.7,020/- per month. 14. In view of the law laid down in the afore-cited decisions and considering the fact that the deceased was a skilled painter by profession and the accident occurred in the year 2018, I am of the firm opinion that there is no error or illegality in the fixation of the notional income of the deceased at Rs.15,000/- per month. ## **Ground No.(ii)** 15. With respect to Tribunal awarding interest at the rate of 9% per annum on the compensation amount, it is seen that the Hon'ble Supreme Court in _**Kishan Gopal & Anr. v. Lala & Others**_ [(2014)1 SCC M.A.C.A.No.2445/2021 -:8:- 244] and _**Anjani Singh & Others v. Salauddi and Others**_ [(2014) 15 SCC 582], has fixed rate of interest at the rate of 9% per annum in motor accidents claim cases, following the ratio in _**M.C.D. v. Uphaar Tragedy Victims Association**_ [(2011) 14 SCC 481]. In such circumstances, I hold that there is absolutely no error on the part of the Tribunal in awarding interest at the rate of 90% per annum. 16. On a comprehensive appreciation of the pleadings, materials on record and the elaborate findings rendered by the Tribunal, I do not find any error in the compensation awarded at by the Tribunal. 17. The Honourable Supreme Court in _**New Indian Assurance Company Ltd. v. Kiran Singh & Others**_ [2004 AIR SCW 4212] has depreciated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. M.A.C.A.No.2445/2021 -:9:- 18. It is to be borne in mind that the accident occurred as early as on 29.03.2018 and it is nearly four 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 its discretion in awarding reasonable and just compensation, for which there cannot be any straight jacket formula based on arithmetic exactitude. I find that the Tribunal has, after a threadbare analysis of the facts, judicially exercised its powers based on the provision of the Act and the authoritative precedents of the Honourable Supreme Court, arrived at the conclusion in the impugned award. I do not find any justifiable grounds in the memorandum of appeal warranting admission of the appeal, which would only be a wastage of judicial time and harassment to the respondents. 19. It is also brought to the notice of this Court M.A.C.A.No.2445/2021 -:10:- that the appellant has already deposited a substantial amount as per the impugned award before the Tribunal. In the result, following the ratio in _**Kiran Singh**_ (supra), I hold that the appeal is devoid of any merits and does not warrant admission. Needless to mention that the appellant is liable to pay/deposit only the remaining amount due as per the impugned award, after deducting the amount already deposited. Resultantly, I dismiss the appeal at the threshold. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge