Reliance General Insurance Co. Ltd. v. Gangadharan & Bincy (MACA No. 3209 of 2021)

1 MACA No. 3209 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943 MACA NO. 3209 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OPMV 131/2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/S:** RELIANCE GENERAL INSURANCE CO. LTD. MANGALAM TOWERS, NEAR TOWN BUS STAND, T.B ROAD, PALAKKAD – 678 014 REPRESENTED BY ITS LEGAL CLAIMS MANAGER, RELIANCE GENERAL INSURANCE CO.LTD, ERNAKULAM BY ADVS. R.AJITH KUMAR (128/84) TAPAS VARMA A. ## **RESPONDENT/S:** 1.GANGADHARAN, AGED 51 YEARS, S/O.DAMODHARAN PUTHAN HOUSE, KARIMBANCHIRA, KUMBALACODE POST, THRISSUR- 680 587 2.BINCY, AGED 22 YEARS, D/O.GANGADHARAN, PUTHAN HOUSE,KARIMBANCHIRA, KUMBALACODE POST, THRISSUR680 587 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No. 3209 of 2021 **C.S DIAS,J. --------------------------MACA No. 3209 of 2021 ----------------------------Dated this the 16[th] day of November, 2021.** ## **JUDGMENT** The appellant/insurer was the second respondent in OP(MV) 131/2018 on the file of the Motor Accidents Claims Tribunal, Palakkad. The respondents in the appeal were the petitioners before the Tribunal. The appellant has not impleaded the first respondent before the Tribunal as a party in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Vipin (deceased), the son of the first petitioner and brother of the second petitioner. It was their case that, on 3 MACA No. 3209 of 2021 3.10.2017, while the deceased was riding his motor cycle from Alathur to Pazhayannur, when he reached the place near Anavalavu, a motor cycle bearing registration No.KL-49/H 4412 (offending motor cycle), driven by the first respondent in a rash and negligent manner, hit the motor cycle of the deceased. The deceased sustained serious injuries and succumbed to the injuries after ten days. The first respondent was also the owner and the second respondent was the insurer of the offending motor cycle. The first respondent died during the pendency of the claim petition, and his legal representatives were impleaded as supplemental respondents 3 and 4. The deceased was a professional photographer and earning a monthly income of Rs.25,000/-. The petitioners were the dependents of the deceased. Hence, the petitioners claimed a compensation of Rs.25,00,000/- from the respondents. 3. The respondents 3 and 4 did not contest the 4 MACA No. 3209 of 2021 proceeding and were set ex parte. 4. The second respondent had filed a written statement disputing the age, income and occupation of the deceased. It was contended that the compensation claimed under the different heads was excessive. Nevertheless, the second respondent admitted that the offending motor cycle had a valid insurance coverage. 5. The petitioners examined PW1 and marked Exts A1 to A15 in evidence. The second respondent produced the insurance policy, which was marked as Ext B1. 6. The Tribunal allowed the claim petition, by permitting the petitioners to realise from the second respondent an amount of Rs.19,21,000/- with interest at the rate of 8% per annum and proportionate costs. 7. Aggrieved by the award, the appellant/second respondent – insurer is in the appeal. 8. Heard: Sri.R.Ajitkumar Varma, the learned Counsel appearing for the appellant/second 5 MACA No. 3209 of 2021 respondent/insurer. 9. The principal grounds of challenge in the memorandum of appeal are: (i) the notional monthly income of the deceased fixed at Rs.12,000/- is excessive, (ii) the Tribunal has erred in not finding contributory negligence on the deceased and (iii) the petitioners are not the dependents of the deceased. ## **Ground No.(i)** 10. The petitioners had claimed that the deceased was a professional photographer and earning a monthly income of Rs.25,000/-. The Tribunal, after analysing Ext A11 salary certificate and the oral testimony of PW1, has fixed the notional monthly income of the deceased at 12,000/-. 11. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie 6 MACA No. 3209 of 2021 worker in the year 2004 at Rs.4,500/- per month. 12. Following the yardstick in the aforecited decision and considering the fact that the petitioners had examined PW1 to prove Ext A11 salary certificate, I do not find any error in the finding of the Tribunal by fixing the notional monthly income of the deceased at Rs.12,000/-. Hence, I answer Ground No.(i) against the appellant. ## **Ground No.(ii)** 13. Ext A3 final report filed by the Police substantiates that the accident occurred due to the negligence of the first respondent. 14. The respondents have not let in any evidence to the contrary, to discredit the charge-sheet, as laid down by this Court in **New India Assurance Co. Ltd v. Pazhaniammal – [(2011) (3)KLT 648]** . 15. Thus, I uphold the finding of the Tribunal, based on Ext A3, that the first respondent was negligent in 7 MACA No. 3209 of 2021 causing the accident. Hence, I hold ground No.(ii) also against the appellant. ## **Ground No.(iii)** 16. It is proved by Exts A14 and A15 that the petitioners were the father and sister of the deceased. 17. This Court in **United India Insurance Co Ltd., v. Shalumol [2021 (5) KLT 74]** has held that financial dependency is not the sole criteria for awarding compensation under Sec.166 of the M.V Act, 1988. 18. Following the ratio in the aforecited decision and considering the fact that the petitioners were the father and sister of the deceased, and the deceased was only 22 years at the time of the accident/death, I hold that the said contention of the appellant is unsustainable in law. Accordingly, I answer ground No.(iii) also against the appellant. 19. On an overall consideration and appreciation of the pleadings and materials on record, the elaborate 8 MACA No. 3209 of 2021 findings rendered by the Tribunal, I do not find any error in the compensation awarded by the Tribunal. 20. The Honourable Supreme Court 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. 21. It is to be remembered that the accident occurred in the year 2017. It is more than four years since the petitioners have been knocking at the doors of the Court, seeking compensation on account of the death of their breadwinner. 22. 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 strait jacket formula based on mathematical exactitude. I find that the Tribunal has, 9 MACA No. 3209 of 2021 after a threadbare analysis of the facts and the law, 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 am convinced that there are no justifiable ground in the memorandum of appeal warranting admission of the appeal, which will only be a wastage of judicial time and a harassment to the respondents. 23. Following the ratio in **Kiran Sing** (supra) and in exercise of the powers of this Court under Order 41 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/-** sks/16.11.2021 **C.S.DIAS, JUDGE**