Reliance General Insurance Co. Ltd. v. Ammini C.K. & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 MACA NO. 1205 OF 2016** **AGAINST THE ORDER/JUDGMENT OPMV 1568/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/3rd RESPONDENT:** RELIANCE GENERAL INSURANCE CO.LTD. VISHNU BUILDING, K.P. VALLON ROAD, KDAVANTHRA, KOCHI-20, REPRESENTED BY ITS LEGAL CLAIMS MANAGER. BY ADVS. SRI.R.AJITH KUMAR (128/84) TAPAS VARMA A ## **RESPONDENTS/CLAIMANTS AND 1ST ADN 2ND RESPONDENTS:** 1 AMMINI C.K. W/O N.K. GOPALAKRISHNAN @ SOMAN, NELLUVELIKUNNEL HOSUE, PERUMPADAVOM P.O., PERUVA. 2 ANANDHU GOPAL S/O N.K. GOPALAKRISHNAN @ SOMAN, NELLUVELIKUNNEL HOSUE, PERUMPADAVOM P.O., PERUVA. 3 ANJU GOPAL D/O /O N.K. GOPALAKRISHNAN @ SOMAN, (MINOR) REPRESENTED BY HER MOTHER AMMINI C.K., NELLUVELIKUNNEL HOSUE, PERUMPADAVOM P.O., PERUVA. 4 AJI MADHAVAN S/O MADHAVAN, MURUTTHOILL HOUSE, PAZHAYARIKANDOM P.O, IDUKKI. 5 JEENA W/O K.C. JOSE, 8225, (7/740), KUNNEL HOUSE, HALLEY BURLA P.O., VALLAKKADAVU, IDUKKI DISTRICT. BY ADVS. SRI.MATHEWS K.PHILIP SRI.LIJI.J.VADAKEDOM M.A.C.A No. 1205 of 2016 and C.O No. 68 of 2017 **==> picture [7 x 9] intentionally omitted <==** SMT.MINISHA K DAS ## **OTHER PRESENT:** ADV T MANASY -R1-R3, SRI.LIJI.J.VADAKEDOM- R4 THIS APPEAL HAVING COME UP FOR ADMISSION, ALONG WITH CO.68/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 1205 of 2016 and C.O No. 68 of 2017 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945** ## **CO NO. 68 OF 2017** ## **AGAINST THE ORDER/JUDGMENT MACA 1205/2016 OF HIGH COURT OF KERALA** ## **CROSS OBJECTORS/RESPONDENTS 1 TO 3:** 1 AMMINI C.K. W/O N.K.GOPALAKRISHNAN@SOMAN, NELLUVELIKUNNEL HOUSE, PERUMPADAVOM P.O, PERUVA 2 ANANDHU GOPAL S/O N.K. GOPALAKRISHANAN @ SOMAN, NELLUVELIKUNNEL HOSUE, PERUMPADAVOM P.O., PERUVA. 3 ANJU GOPAL D/O /O N.K. GOPALAKRISHNAN @ SOMAN, (MINOR) REPRESENTED BY HER MOTHER AMMINI C.K., NELLUVELIKUNNEL HOSUE, PERUMPADAVOM P.O., PERUVA. BY ADV MATHEWS K.PHILIP ## **RESPONDENTS/APPELLANT/RESPONDENTS 4 AND 5:** 1 RELIANCE GENERAL INSURANCE COMPANY LIMITED VISHNU BUILDING, K.P.VALLON ROAD, KADAVANTHARA, KOCHI-20, REPRESENTED BY ITS LEGAL CLAIMS MANAGER 2 AJI MADHAVAN,S/O MADHAVAN, MURUTTHOILL HOUSE, PAZHAYARIKANDOM P.O, IDUKKI. 3 JEENA,W/O K.C. JOSE, 8225, (7/740), KUNNEL HOUSE, HALLEY BURLA P.O., VALLAKKADAVU, IDUKKI DISTRICT. THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ALONG WITH MACA.1205/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 1205 of 2016 and C.O No. 68 of 2017 4 ## **JUDGMENT** This appeal arises from O.P.(M.V ) No.1568/2014 on the files of the Motor Accidents Claims Tribunal, Kottayam. The said claim petition was submitted by respondents 1 to 3 herein seeking compensation for the death of one N.K Gopalakrishnan @ Soman, who died due to the injuries sustained in a motor accident that occurred on 23.04.2014. 2. According to respondents 1 to 3, the accident occurred when the auto rickshaw bearing registration No.KL 37/A-9833, in which the deceased was travelling, capsized due to the rash and negligent driving of the 1st respondent in the claim petition, and he sustained severe injuries. Even though he was taken to the hospital, he succumbed to the injuries. The 2[nd] respondent in the claim petition was the owner of the said vehicle, and the said vehicle was insured with the appellant herein. According to the claimants, the deceased was aged 45 years and was earning an amount of Rs.17,500/- per month from his avocation as a head load worker. The claim petition was submitted in such circumstances. M.A.C.A No. 1205 of 2016 and C.O No. 68 of 2017 5 3. The 1[st] respondent in the claim petition filed a written statement admitting the incident but disputed the negligence on his part. The appellant/3[rd] respondent filed a written statement admitting the coverage of policy in respect of the said vehicle but disputed the liability. They also disputed the quantum of compensation. They also contended that there was violation of policy conditions as the driver of the vehicle was not having a valid driving licence. 4. The evidence in this case consists of Exts.A1 to A11 from the side of the claimants, and Ext.B1 was marked from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the autorickshaw and the appellant/insurance company was held liable to pay the compensation. The quantum of compensation was fixed as Rs.16,11,800/- and the appellant was directed to deposit the said amount along with interest at the rate of 9% per annum. This appeal is filed challenging the quantum of compensation. Respondents 1 to 3 /claimants filed Cross Objection No. 68/2017 seeking enhancement of compensation. M.A.C.A No. 1205 of 2016 and C.O No. 68 of 2017 6 5. Heard, Sri.Tapas Varma, the learned counsel appearing for the appellant, Smt.T.Manasy, the learned counsel appearing for the respondents 1 to 3 /cross objectors and Sri.Liji J Vadakedon, the learned counsel appearing for the 4[th] respondent. 6. The main dispute in this case relates to the quantum of compensation. The learned counsel for the appellant would submit that the amounts awarded by the Tribunal under various heads are on the higher side. 7. On the other hand, the learned counsel appearing for respondents 1 to 3 would contend that the Tribunal granted a very meager amount under the head of loss of dependency as the monthly income taken by the Tribunal for the said purpose was inadequate. 8. After Considering the materials placed on record and hearing the contentions raised by the parties, I find some force in the contention raised by the learned counsel for respondents 1 to 3 as regards the quantum of compensation fixed under the head of loss of dependency. The specific contention of respondents 1 to 3 is that the deceased was working as a head load worker, and to substantiate the same Ext.A8 certificate issued by Vaikom Taluk M.A.C.A No. 1205 of 2016 and C.O No. 68 of 2017 7 Karingkal Quari Thozhilali Union, Peruva, and Ext.A9 of membership card of Vaikom Taluk Karingkal Quari Thozhilali Union, Peruva were relied on. The aforesaid documents would indicate that the deceased was a regular headload worker with a steady income. The monthly income fixed by the Tribunal is Rs.8,000/-. Even going by the method of computation of monthly income involved from the principles laid down by the honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236] and **Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd. [2014 (2) SCC 735]** , monthly income in respect of an ordinary employee can be fixed as Rs.4,500/- for an accident that occurred in the year 2004. To determine the compensation for the subsequent years, the method usually adopted is to add Rs.500/- each per year. While adopting the said method, the monthly income of an ordinary employee, even without evidence, can be fixed as Rs.9,500/- in respect of an accident that occurred in the year 2014. However, in this case, there is evidence to show that the deceased was a head load worker as it is established from Ext.A8 and A9 documents M.A.C.A No. 1205 of 2016 and C.O No. 68 of 2017 8 and therefore, certainly, a slightly higher income can be taken. As he was part of a workforce under an established statutory scheme, and considering the date of the accident as well as the socioeconomic circumstances that prevailed at the relevant time, I am of the view that an amount of Rs.12,000/- can be fixed as the monthly income for computing the compensation in this regard. 9. At this juncture, the learned counsel for the appellant would point out that the Tribunal had added 30% towards future prospects, which was improper. I find some force in the said contention as the proper addition to be made in this regard in the light of the observations in **National Insurance Company Ltd.** **v. Pranay Sethi** [2017 (4) KLT 662 (SC)], should be 25% only. Thus, while reassessing the compensation with the above monthly income with an addition of 25% thereof, the amount of compensation under the head of loss of dependency would come to Rs.16,80,000/- [(12,000+25%) x 12 x 14 x 2/3]. The amount already awarded by the Tribunal is Rs.11,64,800/- and therefore, the additional amount receivable by the claimants would come to Rs.5,15,200/-. M.A.C.A No. 1205 of 2016 and C.O No. 68 of 2017 **==> picture [7 x 9] intentionally omitted <==** 10. The learned counsel for the appellant points out that the Tribunal had awarded excess compensation under the heads of loss of estate, funeral expenses and loss of love and affection. 11. As rightly pointed out by the learned counsel for the appellant, the amount awarded under the head of funeral expenses is Rs.25,000/- which is on the higher side as the proper amount to be awarded is Rs.15,000/- as per **Pranay Sethi** (supra). Therefore, Rs.10,000/-, which is the excess amount, is to be deducted. Similarly, an amount of Rs.1,00,000/- has been granted toward loss of estate, whereas the proper amount to be awarded is Rs.15,000/- as per the principles laid down in **Pranay Sethi** (supra). Therefore, Rs.85,000/- is in excess, and it is ordered to be deducted. As regards the amount awarded by the Tribunal under the head of loss of love and affection, which was Rs.2,00,000/- , it is to be noted that as per the principles laid down by the Honourable Supreme Court in **New India Assurance Company Ltd. v. Somwati & Ors.** [ (2020) 9 SCC 644] and **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780] **,** when compensation is granted for loss of consortium, no separate M.A.C.A No. 1205 of 2016 and C.O No. 68 of 2017 10 compensation needs to be granted for loss of love and affection. In this case, the Tribunal has awarded an amount of Rs.1,00,000/as compensation for loss of consortium, therefore, a separate compensation of Rs.2,00,000/- under the head of loss of love and affection was not at all warranted. But it is to be noted that the compensation of Rs.1,00,000/- for loss of consortium is on the lower side, in view of the fact that, as per the observations made by the honourable Supreme Court in **Satwinder Kaur** (supra), all the appellants being the wife and children of deceased are entitled to compensation at the rate of Rs.40,000/- each thereby making a total amount of Rs.1,20,000/-. 12. Therefore, I am of the view that while setting aside the award of compensation under the head of loss of love and affection, the amount awarded towards loss of consortium has to be revised as Rs.1,20,000/- and it is ordered accordingly. Thus the total additional compensation receivable by the appellant is fixed as Rs.2,40,200/- [(5,15,200 + 20,000) – (10,000 + 2,00,000 + 85,000)]. In the light of the aforesaid observations and findings, this appeal and the cross objection are disposed of by modifying the M.A.C.A No. 1205 of 2016 and C.O No. 68 of 2017 **==> picture [12 x 9] intentionally omitted <==** award dated 08.01.2016 passed by the Motor Accidents Claims Tribunal, Kottayam in O.P.(M.V) No.1568/2014 by awarding an additional compensation of Rs.2,40,200/- (Rupees two lakhs forty thousand two hundred and forty only)and the said amount shall be deposited by the appellant/insurance company along with interest at the rate as ordered by the Tribunal with proportionate cost within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk