Reliance General Insurance Co. Ltd. v. Eliyas K.S., Elona K.S., Shibi Abraham

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 13[TH] DAY OF AUGUST 2021 / 22ND SRAVANA, 1943** **MACA NO. 3303 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OPMV 2097/2017 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, KOTTAYAM.** ## **APPELLANT/2nd RESPONDENT :** **RELIANCE GENERAL INSURANCE CO. LTD, KOTTAYAM, REP. BY IT'S LEGAL CLAIMS MANAGER, RELIANCE GENERAL INSURANCE CO. LTD, ERNAKULAM.** ## **BY ADV R.AJITHKUMAR VARMA(128/84)** ## **RESPONDENTS/PETITIONERS 1 &2 & 1ST RESPONDENT :** - **1 ELIYAS K.S, AGED 12 YEARS, (MINOR), REP. BY HIS GRAND FATHER C.C. ABRAHAM, KOCHUVADAKKATHU HOUSE, MARIYAPPALLLY P.O, KOTTAYAM, PIN CODE 686 013.** - **2 ELONA K.S,AGED 12 YEARS, (MINOR), REP. BY HIS GRAND FATHER C.C. ABRAHAM, KOCHUVADAKKATHU HOUSE, MARIYAPPALLY P.O, KOTTAYAM, PINCODE-686 013** - **3 SHIBI ABRAHAM,AGED 38 YEARS, KOCHUVADAKKATHU HOUSE, MARIYAPPALLY P.O, KOTTAYAM , PIN CODE-686 013.** ## **BY ADV SRI.K.P.SUJESH KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **13.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 3303 OF 2020 2 ## **JUDGMENT** The appellant-insurer was the 2[nd] respondent in OP(MV) No.2097/2017 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the petitioners 1 and 2 and the 1[st] respondent before the Tribunal. For the sake of convenience, the parties are referred to as per the status in the claim petition. 2. The respondents 1 and 2 had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Smt.Georgy Punnuse (deceased), their mother. The petitioners had averred in the claim petition that, on 29.04.2017, while the deceased, a 32 year old house wife, was traveling as a pillion rider on a scooter bearing registration No.KL-05/AG- MACA NO. 3303 OF 2020 3 8075 ridden by the 1[st] respondent, the vehicle hit against a granite wall. Although the deceased was taken to the District Hospital, Kottayam, she lost her life within an hour. The 1[st] respondent was the owner and rider of the scooter and the 2[nd] respondent was the insurer. The deceased was self employed and the petitioners were dependent on her. Hence, the petitioners claimed a total compensation of Rs.25,00,000/- from the respondents. 3. The 1[st] respondent did not contest the proceedings and was set ex parte. The 2[nd] respondent filed a written statement admitting that the scooter had a valid insurance coverage. It was contended that the 1[st] respondent was the legal heir of the deceased. The 2[nd] respondent also disputed the age, occupation and income of the MACA NO. 3303 OF 2020 4 ## deceased. 4. The petitioners produced and marked Exts.A1 to A10 in evidence. The respondents did not let in any evidence. 5. The Tribunal, allowed the claim petition in part, by directing the 2[nd] respondent to pay an amount of Rs.16,62,660/- with interest and cost to respondents 1 and 2. 6. Aggrieved by the award, the 2[nd] respondent is in appeal. 7. Heard Sri.S.Ajithkumar Varma, learned counsel for the appellant/ 2[nd] respondent and Sri.K.P.Sujesh Kumar, the learned counsel appearing for respondents 1 and 2. 8. The principle grounds of challenge in the memorandum of appeal are : - (i)The notional income of the deceased MACA NO. 3303 OF 2020 5 fixed by the Tribunal at Rs.8,000/- is on the higher side, - (ii)The rate of interest fixed by the Tribunal is excessive, and (iii)The Tribunal ought to have deducted ½ of the compensation instead of 1/3[rd] towards the personal living expenses of the deceased. 9. On a perusal of the materials available on record and the impugned award, it can be gathered from Ext.A2 charge sheet that the accident occurred on account of the negligence of the 1[st] respondent who rode the scooter in a manner. negligent Undisputedly the 2[nd] respondent (appellant) was the insurer of the scooter. Therefore, the appellant is liable to indemnify the 1[st] respondent of his liability to pay compensation. MACA NO. 3303 OF 2020 6 10. The petitioners/respondents 1 and 2 had stated in the claim petition that the deceased was self employed and was aged 32 years on the date of her death. She was earning a notional income of Rs.8,000/-. The Tribunal accepted and fixed the notional income of the deceased at Rs.8,000/-. 11. 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 at Rs.4,500/- in the year 2004. 12. Following the ratio in the afore-cited decision and taking note of the fact that the accident occurred in the year 2017, I find that the notional income of the deceased fixed by the Tribunal is just and reasonable. Therefore, I MACA NO. 3303 OF 2020 7 confirm the findings of the Tribunal in fixation of the notional income of the deceased. 13. The next contention is that the rate of interest fixed by the Tribunal at 9% is excessive. 14. In **Municipal Corporation of Delhi, Delhi** **vs. Uphaar Tragedy Victims Association and other** [2011 (14) SCC 481] and **Kishan Gopal and another vs. Lala and another** [2014 (1) SCC 244] the Honourable Supreme Court has awarded interest at the rate of 9% per annum in a motor accident claim. Therefore, the Tribunal has fixed the rate of interest in accordance with the law laid down in the afore-cited decisions. 15. The last question is whether 1/3[rd] of the compensation deducted by the Tribunal towards personal living expenses of the deceased is correct or not. MACA NO. 3303 OF 2020 8 16. Undisputedly, the respondents 1 and - 2/petitioners were the dependents of the deceased. 17. In the light of the law laid down in **Sarla Varma v. Delhi Transport Corporation:** 2010 (2) KLT 802 and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] the Honourable Supreme Court has held if the dependents of the deceased are two in number, 1/3[rd] of the compensation has to be deducted towards the personal living expenses of the deceased. Therefore, I find that the Tribunal has rightly deducted 1/3[rd] of the compensation towards the personal living expenses of the deceased. There is absolutely no error in the aforesaid findings of the Tribunal. 18. The Tribunal has on a threadbare MACA NO. 3303 OF 2020 **==> picture [6 x 6] intentionally omitted <==** appreciation of facts and based on the authoritative precedents of the Honourable Supreme Court has arrived at the compensation fixed in the impugned award. On an overall appreciation of the pleadings, I do not find that there is any error or illegality, warranting interference by this Court in exercise of its appellate jurisdiction. 19. The Honourable Supreme Court has in **New India Assurance Co. Ltd. vs. Kiran Sing &** - **Ors.** : 2004 (AIR) SCW 4212 has deprecated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. 20. It is to be borne in mind that the accident occurred on 29.04.2017. It is more than 4 years since the respondents 1 and 2 have MACA NO. 3303 OF 2020 10 been knocking at the doors of the courts seeking compensation on account of the death of their mother. It is trite that the Tribunals are permitted to do some guess work and also permitted to exercise its discretion to fix reasonable and just compensation, for which there cannot be any straight jacket formula based on arithmetical precision. I find the Tribunal has judicially exercised its powers based on the provisions in the Motor Vehicles Act, 1988 and the authoritative precedents of the Honourable Supreme Court, while arriving at the conclusion in the impugned award. I do not find any justifiable ground in the memorandum of appeal, warranting admission of the appeal, which would only be a wasting of judicial time and harassment to the respondents 1 and 2/petitioners. Following the ratio in **Kiran Sing** (supra) I MACA NO. 3303 OF 2020 11 hold that the appeal is devoid of any merit and does not warrant admission. Therefore I dismiss the appeal at the threshold. Sd/- **C.S.DIAS, JUDGE** AMV/13/08/2021