Reliance General Insurance Co. Ltd. v. Deepa.K.P. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 23RD DAY OF MAY 2019 / 2ND JYAISHTA, 1941** **MACA.No. 1202 of 2014** **AGAINST THE JUDGMENT AND AWARD IN OPMV 901/2010 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY DATED 04-09-2013** ## **APPELLANT/S:** **RELIANCE GENERAL INSURANCE CO. LTD. SALEM,REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SRI.ALEXY AUGUSTINE** ## **RESPONDENT/S:** |**1**|**DEEPA.K.P.**| |---|---| ||**W/O.LATE AJAY MENON, SREERAM**| ||**(ANJANEYA)KUNHAMPARAMBA, PULLAMBIL ROAD,**| ||**THIRUVANGAD AMSOM DESOM, PO THIRUVANGAD,**| ||**KANNUR DISTRICT ,PIN 670 001.**| |**2**|**AVANTHIKA MENON**| ||**D/O.LATE AJAY MENON,REPRESENTED BY MOTHER**| ||**DEEPA .K.P,W/O.LATE AJAY MENON, SREERAM**| ||**(ANJANEYA)KUNHAMPARAMBA, PULLAMBIL ROAD,**| ||**THIRUVANGAD AMSOM DESOM, PO THIRUVANGAD,**| ||**KANNUR DISTRICT ,PIN 670 001.**| |**3**|**JANAKI.M**| ||**D/O.ACHUTHA MENON,SREERAM**| ||**(ANJANEYA)KUNHAMPARAMBA, PULLAMBIL ROAD,**| ||**THIRUVANGAD AMSOM DESOM, PO THIRUVANGAD,**| ||**KANNUR DISTRICT ,PIN 670 001.**| M.A.C.A.No.1202/2014 ..2.. ## **BY ADV. SRI.K.P.HAREENDRAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** kkj M.A.C.A.No.1202/2014 **==> picture [17 x 8] intentionally omitted <==** ## **M.A.C.A.No.1202 of 2014** ## **-----------------------------------------** ## **JUDGMENT** The insurer in a proceedings for compensation before the Motor Accidents Tribunal has come up in this appeal challenging the award passed by the Tribunal in the proceedings. 2. One Ajay Menon died in a motor accident on 13.02.2010. He was aged 34 years. The deceased was an insurance agent. The wife, daughter and mother of the deceased were the claimants in the proceedings. A sum of Rs.15,00,000/- was claimed by way of compensation in the proceedings. The Tribunal, on an appraisal of the materials on record, granted to the claimants a sum of Rs.16,41,000/-. It is aggrieved by the said decision of the Tribunal that the Insurer has come up in appeal. 3. The accident occurred as a result of collision of the motor cycle ridden by the deceased with a tanker lorry. The learned counsel for the appellant contended that the M.A.C.A.No.1202/2014 ..4.. deceased was not wearing a helmet at the time of accident and as such, the Tribunal ought to have found contributory negligence on the part of the deceased. The learned counsel also contended that the deceased was only an insurance agent and the Tribunal, in the circumstances, ought not have added 50% of his income towards future prospects while computing the compensation payable for loss of dependency. It is also contended by the learned counsel that the Tribunal has acted illegally in granting a sum of Rs.75,000/- to the claimants by way of compensation for pain and sufferings. It was pointed out that since the death of the deceased was instantaneous, only a nominal amount could have been granted by way of compensation by the Tribunal under the said head. Placing reliance on the decision of the Apex Court in **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], it was further contended by the learned counsel that a sum of Rs.10,000/- granted towards compensation for loss of estate and a sum of Rs.5,000/- granted towards funeral expenses are in excess of the eligibility of the claimants. It M.A.C.A.No.1202/2014 ..5.. was also contended by the learned counsel that in the light of the decision of the Apex Court in **Pranay Sethi** , the wife of the deceased is entitled only to a sum of Rs.40,000/- towards loss of consortium and the Tribunal has granted a sum of Rs.1,00,000/- by way of compensation under the said head. In other words, according to the learned counsel, Rs.60,000/granted under this head is also in excess. 4. Per contra, the learned counsel for the claimants contended that the materials on record, especially Exhibits A13 to A18 would indicate that the deceased was earning more than Rs.1,00,000/- per year and the Tribunal would have reckoned the monthly income of the deceased at least at Rs.10,000/-. According to the learned counsel, had the monthly income of the deceased been taken by the Tribunal at Rs.10,000/-, the claimants would have got more amount than what was granted by the Tribunal and therefore, it is unnecessary for this court to consider the various contentions raised by the appellant. 5. I have considered the rival contentions raised M.A.C.A.No.1202/2014 ..6.. by the learned counsel on either side. 6. There is no force in the contention raised by the learned counsel for the appellant that the deceased was guilty of contributory negligence insofar as he did not wear a helmet while riding the motorcycle. As rightly pointed out by the learned counsel for the claimants, there was a crime registered in connection with the accident and after due investigation, the police charge sheeted the driver of the tanker lorry. In the light of the decision of this Court in **New India Assurance Co. Ltd.** v. **Pazhaniammal** [2011(3) KLT 648)], in the absence of any contra evidence, the Tribunal cannot be found fault with for having accepted the case of the claimants that the accident occurred on account of the negligence of the driver of the tanker lorry against whom the Police has laid the charge alleging negligence. Further in **P.J.Jose v. Niyas** [2016 (1) KLT 589], the Division Bench of this Court held that merely for the reason that a person has not worn a helmet, contributory negligence cannot be inferred. The contention raised by the learned counsel for the appellant M.A.C.A.No.1202/2014 **==> picture [17 x 8] intentionally omitted <==** in this regard is, therefore, rejected. 7. Exhibit A13 is copy of the income tax return filed by the deceased in respect of the year 2003-04. The yearly income disclosed in Ext.A13 is Rs.45,030/-. Exhibit A14 is a communication received by the deceased from the Income Tax Department in relation to the return filed by him in respect of the year 2004-05. Exhibit A14 indicates that in respect of the year 2004-05, the deceased had filed return disclosing a gross income of Rs.68,740/-. Exhibit A15 is a similar communication issued by the Income Tax Department to the deceased in respect of the return filed by him in respect of the year 2005-06. Ext.A15 indicates that during the said year, the deceased had filed return disclosing a gross income of Rs.65,290/-. Ext.A18 is the Form-16A certificate under the Income Tax Act issued by SBI Life Insurance Company Limited to the deceased. Ext.A18 indicates that a sum of Rs.4,147/has been deducted by SBI Life Insurance Company Limited from the payments effected by them to the deceased towards income tax deductible at source. If one goes by the aforesaid M.A.C.A.No.1202/2014 ..8.. documents, it could be seen that the income of the deceased was only about Rs.6,000/- per month. The Tribunal has reckoned the monthly income of the deceased at Rs.7000/-. In the light of the decision of the Apex Court in **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd** , [(2014) 2 SCC 735], where the Apex Court has reckoned the monthly income of a person whose income could not be established by positive evidence, at Rs.6,500/- in the context of the accident took place in the year 2008, I am of the view that the monthly income of the deceased in the instant case could have been reckoned by the Tribunal at Rs.7,500/-. As rightly pointed out by the learned counsel for the appellant, the addition to be made in the case of a deceased person who was not on a permanent employment is only 40% and the Tribunal has added 50% for the future prospects. If the income of the deceased is taken as Rs.7500/- and the compensation payable for loss of dependency is worked out reckoning the addition for future prospects at 40%, there would be no change at all in the compensation granted. As such, the first M.A.C.A.No.1202/2014 ..9.. contention raised by the learned counsel for the appellant as regards the addition made for future prospects is only to be rejected and I do so. 8. There is force in the contention raised by the learned counsel for the appellant that in the light of the decision in **Pranay Sethi** , only Rs.40,000/-, Rs.15,000/- and Rs.15,000/- can be granted towards compensation for loss of consortium, loss of estate and funeral expenses. The Tribunal has granted Rs.100,000/-, Rs.25,000/- and Rs.20,000/respectively under the above heads. A sum of Rs.75,000/granted by the Tribunal by way of compensation under the said heads is in excess. Similarly, there is force in the contention raised by the learned counsel for the appellant that only a nominal amount can be granted by way of compensation in a case of this nature towards pain and sufferings. Rs.10,000/can be granted to the claimants by way of compensation under the said head. If that be so, Rs.65,000/- granted by the Tribunal is in excess. The total excess compensation granted by the Tribunal would, therefore, work out to be Rs.1,40,000/-. M.A.C.A.No.1202/2014 ..10.. In the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), the mother and daughter of the deceased are entitled to filial and parental consortium. If the compensation payable to them under the aforesaid heads are reckoned at Rs.40,000/- each, the claimants are entitled to an additional sum of Rs.5000/- under the said heads, as the Tribunal has granted only a sum of Rs.75,000/- under said heads. If the said amount of Rs.5000/- is adjusted against the excess compensation found to have been awarded by the Tribunal, the net excess compensation would be Rs.1,35,000/-. In the result, the appeal is allowed and the compensation granted by the Tribunal to the claimants is refixed at Rs.15,06,000/-. Sd/- **P.B.SURESH KUMAR, JUDGE** kkj