Reliance General Insurance Co. Ltd v Chelli M S/O Neelandan and Ammu W/O Chelli

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944 ``` ## **`MACA NO. 2687 OF 2016`** ``` AGAINST THE ORDER/JUDGMENT IN OPMV 23/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI ``` ## **`APPELLANT/S:`** ``` RELIANCE GENERAL INSURANCE CO.LTD MALAPPUAM, REPRESENTED BY ITS DEPUTY MANAGER,REGIONAL OFFICE, ERNAKULAM. ``` ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ## **`RESPONDENT/S:`** - **`1 CHELLI.M S/O NEELANDAN, MUTHUVOTTU HOUSE, CALICUT AIRPORT (PO), KONDOTTY AMSOM, KANHIRAPARAMBUDESOM, ERNAD TALUK, MALAPPURAM DISTRICT, PIN:673647.`** - **`2 AMMU W/O CHELLI, MUTHUVOTTU HOUSE, CALICUT AIRPORT (PO), KONDOTTY AMSOM, KANHIRAPARAMBU DESOM, ERNAD TALUK, MALAPPURAM DISTRICT, PIN:673647.`** ``` BY ADVS. SRI.K.C.ANTONY MATHEW KUM.ANJU CLETUS SRI.JITHIN LUKOSE SRI.M.S.MOHAMMED ANSARY SRI.P.SAMSUDIN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON ``` ``` 27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.2687/2016 & CO.29/2017 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the insurance company and the claimants are the cross objectors. ## **MACA No. 2687 OF 2016** 2. This appeal is preferred by the insurance company against the award in OP(MV) No.23/2012 dated 21.06.2016 on the files of the Motor Accidents Claims Tribunal, Manjeri. The parties are as referred to as per their status in the claim petition unless otherwise specifically mentioned. 3. The petitioners are the parents of the deceased. They filed the claim petition seeking an amount of Rs.8,16,000/- as total compensation for the death of their son Baburaj in a motor vehicle accident occurred on 28.06.2011. The deceased Baburaj was a pillion rider on a motor cycle along with three others. The motor cycle hit against a mini bus bearing Reg. No.KL-10-AE-355 driven by the 1[st] respondent and owned by the 2[nd] respondent and all the four succumbed to the injuries sustained in the accident. According to the petitioners, the accident happened due to the negligence on ``` MACA NO.2687/2016 & CO.29/2017 ``` ``` 3 ``` the part of the 1[st] respondent. The 3[rd] respondent is the insurer of the offending vehicle. 4. Respondents 1 and 2 in O.P. filed joint written statement contending that the accident did not happen due to the negligence of the 1[st] respondent, the driver of the mini bus. It was contended that the accident happened due to the negligence of the rider of the motor cycle who was riding the vehicle with three other persons on the pillion. The 3[rd] respondent filed a written statement contending that the accident happened due to the negligence of the rider of the motor cycle. They further contended that the amount claimed by the petitioners is excessive and exorbitant. The insurer, however, admitted that the mini bus was having a valid insurance policy at the time of the accident. 5. The Tribunal found that the accident happened due to the negligence of the driver of the mini bus and awarded an amount of Rs.14,61,000/- as total compensation for the death of Baburaj. The Tribunal directed the insurer to satisfy the award with interest at 9% per annum from the date of petition till date of deposit with proportionate costs. The Tribunal awarded the compensation under ``` MACA NO.2687/2016 & CO.29/2017 ``` ``` 4 ``` ## the following heads:- |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**claimed (in**<br>**rupees)**|**Amount**<br>**awarded (in**<br>**rupees)**|**Basis-vital**<br>**details in a**<br>**nutshell**| |---|---|---|---|---| |1|Transport to hospital|1000|1000|| |2|Extra nourishment|3000|Nil|| |3|Damage to clothing<br>and article|2000|1000|| |4|Medical expense|20000|Nil|| |5|Loss of consortium|50000|Nil|| |6|Loss of estate|10000|1,00,000|| |7|Funeral expense|5000|25000|| |8|Pain and suffering|25000|Nil|| |9|Loss of love and<br>affection|Nil|2,00,000|| |10|Loss of dependency|7,00,000|11,34,000|(10500 x 12 x<br>18 x 1/2)| |**TOTAL Rs.8,16,000/-**<br>**(Claim limited to Rs.4,06,000/-)**|||**Rs.14,61,000/-**|| 6. Aggrieved by the award, the insurer has come up in appeal. 7. According to the appellant, the Tribunal went wrong in finding that the accident happened due to the negligence of the driver of the mini bus. The appellant contends that since the rider of the motor cycle was riding the vehicle with three pillion riders, the Tribunal ought to have found contributory negligence on the part of the rider. The appellant also contends that the Tribunal went wrong ``` MACA NO.2687/2016 & CO.29/2017 5 ``` in fixing the income of the deceased at Rs.7,000/- per month, without any evidence on record and that the Tribunal erred in allowing 50% for future prospects whereas the deceased, being a self employed person without any fixed income, only 40% can be added towards future prospects. The appellant also challenged the compensation awarded under other heads. ## **C.O. No.29/2017** 8. The petitioners/the cross objectors contend that the multiplier and multiplicand adopted by the Tribunal is wrong and that the amounts awarded towards loss of dependency and pain and sufferings are inadequate. 9. Heard Adv.Smt.K.S.Santhi, the learned counsel for the appellant and Adv.Sri.Samsudin, the learned counsel for the respondents/cross objectors. 10. Adv. Smt.K.S.Santhi, the learned counsel for the appellant contends that the rider of the motor cycle was riding the vehicle along with three others on the pillion and therefore, the Tribunal ought to have found contributory negligence on the part of the rider. ``` MACA NO.2687/2016 & CO.29/2017 6 ``` The Hon'ble Supreme Court, in **Mohammed Siddique and another** _**v**_ **. National Insurance Co. Ltd. [2020 KHC 6043:(2020) 3 SCC 57],** has held that the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law, but such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. Just for the reason that the rider of the motorcycle was riding the vehicle along with three others on the pillion, contributory negligence cannot be attributed to the rider. Therefore, the said challenge cannot be sustained. 11. In view of the contentions in the appeal as well in the cross objection, this Court has to re-fix the compensation to arrive at just and reasonable compensation. 12. With regard to loss of estate, the Tribunal has awarded an amount of Rs.1,00,000/- as compensation. As per the dictum laid down by the Hon'ble Supreme Court in **National Insurance** _v_ . **Company Limited Pranay Sethi and others** [(2017) 16 SCC ``` MACA NO.2687/2016 & CO.29/2017 7 ``` 680] followed in **N. Jayasree and others** _**v**_ **. Cholamandalam Ms General Insurance Co. Ltd (2021 (6) KHC 163 SC)** ], the petitioners are entitled only for an amount of Rs.16,500/(15000+10% enhancement for every three years) under the said head. Therefore, an amount of **Rs.83,500/-** (100000-16500) has to be deducted. 13. Towards funeral expenses, the Tribunal has awarded an amount of Rs.25,000/-. In the light of the decision in **Pranay Sethi** (supra) followed in **N.Jayasree** (supra), the petitioners are entitled to get only an amount of Rs.16,500/- [15,000+10% hike for very three years]. Therefore, an amount of **Rs.8,500/-** has to be deducted under the head funeral expenses. 14. The petitioners are the parents of the deceased. In the light of the dictum laid down in **New India Assurance Company Limited v. Somwati and others [2020 (9) SCC 644]** , the parents are entitled for filial consortium at Rs.40,000/- each. Therefore, the petitioners are entitled for an amount of **Rs.88,000/-** (Rs.40,000/with 10% hike for every three years– **N. Jayasree** (supra)) under the said head. ``` MACA NO.2687/2016 & CO.29/2017 ``` ``` 8 ``` 15. For loss of love and affection, an amount of Rs.2,00,000/has been awarded. The Hon'ble Supreme Court has held in **United India Insurance Co.Ltd.** _**v.**_ **Satinder Kaur [AIR 2020 SC 3076],** that, when compensation is awarded under the head loss of consortium, there is no justification in awarding compensation for loss of love and affection as a separate head. Accordingly, the amount of **Rs.2,00,000/-** awarded under the head loss of love and affection has to be deducted. 16. The Tribunal has awarded an amount of Rs.11,34,000/- as compensation towards loss of dependency. The Tribunal took the notional monthly income of the deceased as Rs.7,000/- and added 50% of the income towards future prospects. Since the deceased was aged 23 years and being an unskilled worker with no fixed income, only 40% can be added towards future prospects as per the decision in **Pranay Sethi** (supra). Though the petitioners have claimed only Rs.5,000/- as the income of the deceased, going by the decision of this Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC** **236: AIR 2011 SC 2951]** , the notional income of the deceased can ``` MACA NO.2687/2016 & CO.29/2017 ``` ``` 9 ``` be taken Rs.8,000/- per month. On adding 40% of the income towards future prospects, the income would come to Rs.11,200/- [8,000+3200]. The multiplier to be taken is ‘18’. Since the deceased was a bachelor, ½ of the income has to be deducted towards his personal and living expenses. Therefore, the compensation for loss of dependency is recalculated as Rs.12,09,600/- (11200 x 12 x 18 x ½). After deducting an amount of Rs.11,34,000/- already awarded by the Tribunal, the petitioners are entitled to get Rs.75,600/- more under the said head. 17. I do not find any reason to interfere with the amounts awarded under other heads as they appear to be just and reasonable. 18. Therefore, the compensation awarded by the Tribunal is reworked as follows: |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded (in**<br>**rupees)**|**Amount fixed**<br>**by this Court**<br>**(in rupees)**|**Difference**| |---|---|---|---|---| |1|Transport to hospital|1000|1000|| |2|Extra nourishment|Nil|--|| |3|Damage to clothing<br>and article|1000|1000|| |4|Medical expense|Nil|--|| |5|Loss of consortium|Nil|88,000|88,000| ``` MACA NO.2687/2016 & CO.29/2017 ``` ``` 10 ``` |6|Loss of estate|1,00,000|16,500|-83,500| |---|---|---|---|---| |7|Funeral expense|25000|16,500|-8,500| |8|Pain and suffering|Nil|--|| |9|Loss of love and<br>affection|2,00,000|--|-2,00,000| |10|Loss of dependency|11,34,000|12,09,600|75,600| ||Total|14,61,000|**13,32,600**|-1,28,400| In the result, the appeal is allowed as above holding that the petitioners are entitled only for an amount of **Rs.13,32,600/-** instead of Rs.14,61,000/- awarded by the Tribunal, with 9% interest per annum from the date of petition till realisation and costs. The cross objection is dismissed. This Court, by order dated 01.09.2016, has stayed the execution of the award. The appellant insurance company shall deposit the amount as per this judgment with interest and costs before the Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` Sd/- ``` ## **`MURALI PURUSHOTHAMAN`** ## **`JUDGE`** ``` spc/ ```