Reliance General Insurance Co. Ltd. v. Ancy Kurian and others

MACA NO. 3188 OF 2021 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 15[TH] DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 MACA NO. 3188 OF 2021** **AGAINST THE JUDGMENT IN OPMV 862/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA, IDUKKI** ## **APPELLANT/2ND RESPONDENT:** THE MANAGER, LEGAL, RELIANCE GENERAL INSURANCE COMPANY LIMITED, 2ND FLORR, VISHNU BUILDING, K.P.VALLON ROAD, KADAVANTHRA PO, KOCHI 682020 BY ADVS. MATHEWS JACOB (SR.) P.JACOB MATHEW ## **RESPONDENT/PETITIONERS:** 1. ANCY KURIAN,AGED 56 YEARS, W/O.LATE KURIAN, HOUSE NO.NGP 1/482, THRITTAYIL HOUSE, PONNAMALA BHAGAM, MAVADY KARA, BETHEL PO, KALKOONTHAL VILLAGE, IDUKKI 685514 2. NEETHU CYRIAC, AGED 34, W/O.CYRIAC JOSEPH, HOUSE NO.TGP XIV/39, PLATHOTTATHIL HOUSE, AMBARANIRAPPEL BHAGAM, KEERAMPARA KARA, KONDOOR VILLAGE/PO., KOTTAYAM 686578 3. NIBIN KURIAN, AGED 27, S/O LATE KURIAN, THRITTAYIL HOUSE, PONNAMALA BHAGAM, MAVADY KARA, BETHEL PO, KALKOONTHAL VILLAGE, IDUKKI 685 514 4. THOMAS, AGED 87, S/O.VARKEY, HOUSE NO.CGP XI/352, THRITTAYIL HOUSE, FOURTH LINE BHAGAM, AMARAVATHYKARA, ANAKULAM PO, CHAKKUPALLAM VILLAGE, IDUKKI 685565 2 MACA NO. 3188 OF 2021 5. MARIAMMA THOMAS, AGED 85, W/O.THOMAS VARKEY, HOUSE NO.NGP XI/352, THRITTAYIL HOUSE, FOURTH LINE BHAGAM, AMARAVATHY KARA, ANAKULAM PO, CHAKKUPALLAM VILLAGE, IDUKKI 685 565 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 3188 OF 2021 3 ## **JUDGMENT** The appellant/insurer was the 2[nd] respondent in OP(MV) No.862/2016 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. The respondents in the appeal were the petitioners before the Tribunal. As the appellant had admitted the insurance policy, the appellant has not impleaded the 1[st] respondent as party 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 Kurian (deceased), the husband of the 1[st] petitioner, father of the petitioners 2 and 3 and son of the petitioners 4 and 5. It was the case of the petitioners that, on 12.05.2016, while the deceased was alighting from from an autorikshaw bearing registration No.KL-69-9776, the 1[st] respondent negligently moved the autorikshaw forward causing the deceased to fall on the ground. The deceased sustained serious injuries and was treated at the Karuna Hospital, Nedungadam and at the MACA NO. 3188 OF 2021 4 Medical College Hospital, Kottayam. The deceased was also treated at three other hospitals. However, he succumbed to the injuries on 05.09.2016. The 1[st] respondent was also the owner and the 2[nd] respondent was the insurer of the autorikshaw. The deceased was aged 54 years and was a coolie by profession, and he was earning a monthly income of Rs.10,000/-. The petitioners were the dependents of the deceased. Hence, the petitioners claimed a compensation of Rs.27,88,500/- from the respondents, which was limited to Rs.18,00,000/-. 3. The 1[st] respondent had filed a written statement denying the allegations of negligence attributed against him. He contended that the accident was caused due to the negligence of the deceased. However, he averred that the autorikshaw had a valid insurance coverage with the 2[nd] respondent. 4. The 2[nd] respondent had filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the deceased. The 2[nd] respondent also disputed the age, MACA NO. 3188 OF 2021 5 income and occupation of the deceased. Nevertheless, the 2[nd] respondent admitted that the autorikshaw had a valid insurance coverage. 5. The petitioners produced and marked Exts.A1 to A15 in evidence. The 2[nd] respondent produced the insurance policy which was marked as Ext.B1 in evidence. 6. The Tribunal allowed the claim petition by permitting the petitioners to realise from the 2[nd] respondent an amount of Rs.12,54,950/- with interest and proportionate cost. 7. Aggrieved by the award, the appellant/2[nd] respondent is in appeal. 8. Heard; Sri.P. Jacob Mathew, the learned counsel appearing for the appellant/2[nd] respondent. 9. The principal grounds of challenge in the memorandum of appeal are that: - (i) the Tribunal has erred in not finding contributory negligence on the deceased; - (ii) the notional monthly income of the deceased fixed by the Tribunal at Rs.9,000/- per month is on the higher side; MACA NO. 3188 OF 2021 **==> picture [7 x 9] intentionally omitted <==** (iii) the Tribunal was not justified in granting compensation under the conventional heads; - (iv) the awarding of Rs.20,000/- towards pain and suffering is unreasonable and unjustifiable. ## **Ground No.(i)** 10. Exts.A2 final report filed by the Nedumgandam Police in crime No.441/16 proves that the accident occurred due to the negligence of the 1[st] respondent. 11. A Division Bench of this Court in **New India Assurance Co. Ltd. vs. Pazhaniammal** : [2011 (3) KLT 648] has succinctly held that, production of charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim filed under Section 166 of the Motor Vehicles Act. If any party does not accept such charge sheet, the burden is on such party to let in evidence and discredit the charge sheet. 12. Admittedly, the respondents have not let in any evidence to discredit Ext.A2 charge sheet. Therefore, I accept the finding of the Tribunal, that the accident occurred due to the negligence of the 1[st] respondent. MACA NO. 3188 OF 2021 7 13. Admittedly, the 2[nd] respondent was the insurer of the autorikshaw. The 2[nd] respondent had not proved that the 1[st] respondent has violated the insurance policy conditions. Hence, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent. Accordingly, I answer Ground No.(i) against the respondents. ## **Ground No.(ii)** 14. The petitioners had claimed that the deceased was a coolie worker by profession and earning a monthly income of Rs.10,000/-. Since the petitioners did not produce any material, the Tribunal fixed the notional monthly income of the deceased at Rs.9,000/-. 15. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd** . [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 16. Following the yardstick in the afore-cited decision and considering the fact that the accident happened in the MACA NO. 3188 OF 2021 8 year 2016, I hold that the notional monthly income fixed by the Tribunal to be reasonable and just, and in line with the ratio in the afore cited decision. Hence, I answer Ground No. (ii) also against the appellant. ## **Ground No.(iii)** 17. The Tribunal has awarded an amount of Rs.40,000/each to the petitioners towards loss of consortium. It is proved that petitioners were the wife, children and parents of the deceased. The appellant contends that since the petitioners 2 and 3 have attained majority, they cannot be said to be the dependents of the deceased. Undisputedly the petitioners 2 and 3 are the children of the deceased. 18. In **United India Insurance Company Ltd. vs. Shalumol and others** [2020 (1) SCC Online KER 3209], this Court had held that financial dependency is not the sole criteria in awarding compensation under Section 166 of the Motor Vehicles Act. Therefore, I hold Ground No.(iii) also against the appellant. MACA NO. 3188 OF 2021 9 ## **Ground No.(iv)** 19. The appellant has contended that since the claim is one of death, the Tribunal ought not to have awarded any amount under the head 'pain and suffering'. 20. It is to be remembered that the accident occurred on 12.05.2016 and the deceased lost his life only on 05.09.2016. 21. A Division Bench of this Court in **Jyni and others vs. V. Raphel P.T. and others** [2016 (2) KHC 870] has categorically held that there is no legal impediment in awarding compensation for pain and suffering to the claimant(s) in a case where the deceased does not lose his life instantaneously. Therefore, I hold ground No.(iv) also against the appellant. 22. On a consideration of the pleadings and materials on record and the elaborate findings rendered by the Tribunal, I do not find any error in the compensation arrived at by the Tribunal in the impugned award. 23. It is to be borne in mind that, the accident occurred MACA NO. 3188 OF 2021 10 in the year 2016. It is more than five 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. 24. The Honourable Supreme Court in **New India Assurance Co. Ltd. vs. Kiran Sing & Ors** . [2004 (AIR) SCW 4212] has deprecated the practice of contesting genuine claims in a routine manner and dragging the parties MACA NO. 3188 OF 2021 11 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. Sd/- **C.S.DIAS JUDGE** rkc