Reliance General Insurance Co. Ltd. v. Edwin George and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** ## **MACA.No.2761 OF 2014** **AGAINST THE AWARD IN OPMV 65/2011 DATED 30-06-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA** ## **APPELLANT:** **RELIANCE GENERAL INSURANCE CO.LTD THRISSUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM.** |||**BY ADVS.**| |---|---|---| |||**SMT.K.S.SANTHI**| |||**SMT.LATHA SUSAN CHERIAN**| |**RESPONDENTS**<br>**:**||| |**1**||**EDWIN GEORGE**| |||**VALLYAVEETTIL HOUSE, ARPOOKKARA VILLAGE,**| |||**ARPOOKKARA KARA.**| |**2**||**KURUVILA SEBASTIAN**| |||**PEREKATTU HOUSE, THIDANADU.P.O., KOTTAYAM.**| |**3**||**GRACYKUTTY KURUVILLA**| |||**PEREKATTU HOUSE, THIDANADU.P.O., KOTTAYAM.**| |**4**||**CHOLAMANDALAM GENERAL INSURANCE CO. LTD.**| |||**DHARMAPURI, KARNATAKA.**| |||**R1 BY ADV. SRI.DOMSON J.VATTAKUZHY**| |||**R1-2 BY ADV. SRI.ALEX.M.SCARIA**| |||**R1, R4 BY ADV. SRI.P.JACOB MATHEW**| |||**R1 BY ADV. SRI.MATHEW JOHN K**| |||**R1 BY ADV. SRI.MATHEWS JACOB SR.**| |||**R1 BY ADV. SMT.SARITHA THOMAS**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2761 of 2014 2 ## **JUDGMENT** ## **Dated this the 20[th] day of August, 2020** The Insurance Company has filed the appeal on two grounds; one that there was no reason to find negligence on the driver of the bus, which vehicle was insured by the appellant herein. The next ground is on the compensation awarded for loss of dependency, in computing which the Tribunal had taken 2/3[rd] of the annual income. It is the submission of the learned Standing Counsel that the 1[st] respondent was employed in Tata Consultancy Services and the 2[nd] respondent was a Planter. The 3[rd] respondent alone was dependent on the deceased. Hence there should have been a deduction of one half for personal affairs. 2. The accident occurred on 27.06.2010 at midnight near Salem. I have looked at the FIR and FI Statement produced as Exts.A1 and A6. The FI MACA No.2761 of 2014 3 Statement was by one of the travellers in the bus, who has stated that the driver of the bus was driving the vehicle in a rash and negligent manner and dashed its left side on the right side of a parked lorry. The charge also indicates that the bus was driven in a rash and negligent manner. The driver of the parked lorry has also been arrayed as an accused on the ground that he has parked the vehicle carelessly. The Tribunal found 70% negligence on the bus driver. Going by the documents discussed herein above, this Court is of the opinion that there is nothing to interfere insofar as the negligence found on the bus driver. 3. The next question is as to whether the 1[st] and 2[nd] respondents should be considered as dependents. The claim petition is filed by the 1[st] claimant on behalf of the 2[nd] and 3[rd] claimants. The 1[st] claimant is the husband and the 2[nd] and 3[rd] claimants are the parents of the deceased in the bus MACA No.2761 of 2014 4 accident. The 1[st] claimant had admitted that he was working at TCS in Bangalore, but the submission is that he was dependent on his wife, both emotionally and financially. The dependence of 2[nd] and 3[rd] claimants have also been spoken of in the claim statement. 4. On examination of the records it is seen that the Insurance Company had challenged the above aspect of dependency in the written statement itself. The 1[st] respondent, who was the husband of the deceased was examined as PW1. PW1 categorically stated that he was deposing on behalf of the other claimants, who were the parents of the deceased. At no stage in the trial the other claimants, that is the respondents 2 & 3 here, raised any objection. They have also not chosen to file any appeal from the award passed. In the proof affidavit filed PWI asserts that all the claimants were dependent on the deceased but emphasize that the other claimants, MACA No.2761 of 2014 5 parents, were under a lot of mental pressure and that the deceased used to support them substantially. It is also stated that after his wives death he lost the happy family life he was enjoying. It is also admitted that he remarried at the persuasion of wellwishers. 5. In cross examination by the 3[rd] opposite party, PW1 admitted that he was earning thirty to thirty-five thousand rupees. It is also stated that there was transfer of amounts effected from the account of the deceased to PW1's account, which was on an emergency. It is deposed that as a couple they were accumulating their salaries. Immediately it is to be noticed that this is not to say that PW1 has a definite case that he was dependent on the deceased. In the cross-examination of the 4[th] opposite party, PW1 categorically answered that it is not correct to say that he was dependent on the salary of the deceased. It was also asserted that if need arose, he MACA No.2761 of 2014 6 used to help her financially. This totally demolishes the claim of the 1[st] respondent, husband, that he was dependent on his wife; who died in the accident. The statement made by PW1 is also that the 2[nd] claimant, father of the deceased owned a farm. On the totality of the circumstances it is found that the husband, on his own showing was not a dependent but the mother was. The father too left no evidence to establish his dependency and going by the admission of owning a plantation/farm he is also not established to be a dependent. The only dependent is the mother. Hence going by _**Sarla Verma Vs. DTC 2009 (6) SCC 121**_ there should be deduction of one half of the notional income for personal affairs. _**Sarla Verma**_ held so in para 30: **30.** Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in _Trilok Chandra_ , the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the MACA No.2761 of 2014 7 view that where the deceased was married, the deduction towards personal and living expenses of - the deceased, should be one third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent - family members is 4 to 6, and one fifth (1/5th) where the number of dependent family members exceeds six. It goes without saying that the apportionment also should concede to the compensation for loss of dependency being allowed to the sole dependent-mother and the others being entitled only to the compensation for loss of consortium. 6. The learned Standing Counsel for the appellant relies on _**2014(1) KHC 207(Valsamma and**_ _**another v. Binu Jose and another)**_ to contend that the husband cannot be treated as a dependent or made eligible for loss of consortium, especially since he has remarried. In that case, a widow was held to be not dependent when she is remarried. Here, the question is whether the husband is treated as MACA No.2761 of 2014 8 dependent on the death of the wife; which already has been found against him on evidence recorded. As for the consortium, no amounts have been awarded by the Tribunal and there is no appeal filed by the claimants. 7. The question of apportionment of compensation has been raised by the Insurance Company. Strictly, the Insurer is not concerned with that but, in view of the ground raised of the quantum of deduction applicable to the notional income for determination of the compensation for loss of dependency; dependency is a relevant factor to be decided in the appeal. The question having been decided against the husband and father the consequence is that the only dependent is the mother of the deceased. The apportionment also hence stands altered. The compensation for dependency would hence be determined after deducting the notional income by one half and the 70% of the total award will be paid MACA No.2761 of 2014 9 by the insurer/appellant to the 3[rd] respondent here, the mother of the deceased. It is submitted by the learned Counsel for the 3[rd] respondent that what was deposited was withdrawn by the 1[st] respondent. The 3[rd] respondent would be entitled to seek for recovery from the Tribunal, if the withdrawal has been made by the 1[st] respondent/claimant alone. The MACA is allowed. No order as to costs. **Sd/K. VINOD CHANDRAN, JUDGE.** **Jma/**