Reliance General Insurance Co. Ltd. v. Mariyumma W/o Mohammed (Late) and Others

# **`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. 2695 OF 2016`** ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 168/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI`** ## **`APPELLANT/S:`** ``` RELIANCE GENERAL INSURANCE CO. LTD MALAPPURAM, REPRESENTED BY ITS DEPUTY MANAGER,REGIONAL OFFICE, ERNAKULAM. ``` - **`BY ADVS. SMT.K.S.SANTHI SRI.ALEXY AUGUSTINE SMT.LATHA SUSAN CHERIAN`** ## **`RESPONDENT/S:`** - **`1 MARIYUMMA W/O MOHAMMED (LATE), KOZHIKODAN HOUSE,KANHIRAPARAMBU, CALICUT AIRPORT PO,KONDOTTY AMSOM, ERNAD TALUK,MALAPPURAM DISTRICT-673647.`** - **`2 SAJNA D/O MOHAMMED (LATE), KOZHIKODAN HOUSE,KANHIRAPARAMBU, CALICUT AIRPORT PO,KONDOTTY AMSOM, ERNAD TALUK,MALAPPURAM DISTRICT-673647.`** - **`3 MANZOOR S/O MOHAMMED, (LATE),KOZHIKODAN HOUSE, KANHIRAPARAMBU,CALICUT AIRPORT PO, KONDOTTY AMSOM,ERNAD TALUK, MALAPPURAM DISTRICT-676647.`** - **`4 ARIFA D/O MOHAMMED (LATE), KOZHIKODAN HOUSE,KANHIRAPARAMBU, CALICUT AIRPORT PO,KONDOTTY AMSOM, ERNAD TALUK,MALAPPURAM DISTRICT-673647. BY ADVS. SRI.JITHIN LUKOSE SRI.P.SAMSUDIN`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ``` ``` ON 27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2695 OF 2016 ``` ``` 2 ``` ## **`JUDGMENT`** This appeal is preferred by the insurance company against the award in OP(MV) No.168/2012 dated 21.06.2016 on the files of the Motor Accidents Claims Tribunal, Manjeri. The parties are referred to as per their status in the claim petition unless otherwise specifically mentioned. 2. The petitioners are the wife, son and daughters of deceased Mohammed. On 28.06.2011, while the deceased was travelling on a motor cycle as a pillion rider 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. The 3[rd] respondent is the insurer of the vehicle. According to the petitioners, the accident happened due to the negligence on the part of the 1[st] respondent. They filed the claim petition claiming an amount of Rs.8,11,000/- as total compensation for the death of Mohammed. 3. Respondents 1 and 2 in O.P. filed joint written statement contending that the accident did not happen due to the negligence of ``` MACA NO. 2695 OF 2016 ``` ``` 3 ``` 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 is excessive and exorbitant. The insurer, however, admitted that the mini bus was having a valid insurance policy at the time of the accident. 4. The Tribunal found that the accident happened due to the negligence of the driver of the mini bus and awarded an amount of Rs.13,41,000/- as total compensation for the death of Mohammed. 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 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|| ``` MACA NO. 2695 OF 2016 ``` ``` 4 ``` |3|Damage to clothing<br>and article|2000|1000|| |---|---|---|---|---| |4|Medical expense|15000|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|80,000|| |10|Loss of dependency|7,00,000|11,34,000|(10500 x 12 x<br>18 x 1/2)| |TOTAL Rs.8,11,000/-<br>(Claim limited to Rs.4,06,000/-)|||Rs.13,41,000/-|| 5. Aggrieved by the award, the insurer has come up in appeal. 6. 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 also contends that the Tribunal went wrong in fixing the income of the deceased at Rs.7,000/- per month without any evidence on record and that the Tribunal erred in adding 50% of the income towards future prospects whereas the deceased, being a self employed person without any fixed income, only 40% of the income can be added towards future prospects [ **National Insurance** ``` MACA NO. 2695 OF 2016 ``` ``` 5 ``` _v_ . **Company Limited Pranay Sethi and others** (2017) 16 SCC 680]. The appellant also challenged the compensation award under other heads. 7. Heard Adv.Smt.K.S.Santhi, the learned counsel for the appellant and Adv.Sri.Samsudin, the learned counsel for the respondents. 8. 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. The Hon'ble Supreme Court in **Mohammed Siddique and another** _**v**_ **. National Insurance Co. Ltd. [2020 KHC 6043:(2020) 3 SCC 57],** 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 ``` MACA NO. 2695 OF 2016 ``` ``` 6 ``` 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. 9. According to the petitioners, the deceased was having an income of Rs.5,000/- per month. The Tribunal fixed the notional monthly income of the deceased as Rs.7,000/-. According to the appellant, the Tribunal went wrong in fixing the notional monthly income of the deceased as Rs.7,000/-. The deceased was a head load worker and going by the decision of the Apex Court in **v. Sundaram Alliance Ramachandrappa Manager, Royal Insurance Company Limited [2011 (13) SCC 236: AIR 2011 SC 2951]** , the notional income of the deceased can be taken as Rs.8,000/-. Accordingly, I take the monthly income of the deceased as Rs.8,000/-. However, the deceased being an unskilled employee with no fixed income, only 40% of the income can be added towards future prospects ( **Pranay Sethi** (supra)). By adding 40% of the income towards future prospects, the income would come to ``` MACA NO. 2695 OF 2016 ``` ``` 7 ``` Rs.11,200/- [8,000+3200]. The deceased was aged 24 years at the time of accident and therefore, 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 re-fixed as Rs.12,09,600/(11200 x 12x18x1/2) and the petitioners are entitled to get an additional sum of **Rs.75,600/-** under the said head. 10. Towards loss of estate, an amount of Rs.1,00,000/- has been awarded by the Tribunal. As per the dictum laid down by the Hon'ble Supreme Court in **Pranay Sethi** (supra) 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% hike for 3 years) under the said head. Therefore, **Rs.83,500/-** [1,00,000-16,500] has to be deducted from the total compensation. 11. 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 ``` MACA NO. 2695 OF 2016 ``` ``` 8 ``` to get only an amount of Rs.16,500/- [15,000+10% hike for three years] under the head funeral expenses. Therefore, an amount of **Rs.8,500/-** has to be deducted under the said head. 12. An amount of Rs.80,000/- has been awarded towards loss of love and affection. The petitioners being the mother and siblings, as per the dictum laid down by the Apex Court in **New India Assurance Company Limited v. Somwati and others [2020 (9) SCC 644]** , only the mother is entitled for compensation for loss of consortium. Therefore, the 1[st] respondent herein is entitled for an amount of **Rs.44,000/-** (Rs.40000+10% hike for 3 years– **N. Jayasree** (supra)) as compensation for loss of consortium. 13. For loss of love and affection, an amount of Rs.80,000/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.80,000/-** awarded under the head loss of love and ``` MACA NO. 2695 OF 2016 ``` ``` 9 ``` affection has to be deducted. ## 14. The Tribunal has awarded just and reasonable compensation under other heads. ## 15. In the circumstances, the compensation awarded by the Tribunal is re-worked 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|44,000|| |6|Loss of estate|1,00,000|16500|-83500| |7|Funeral expense|25000|16500|-8500| |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|75600| |**13,41,000/- **|||**Rs.12,88,600/-**|-52400| In the result, the appeal is allowed as above holding that the petitioners are entitled only for an amount of **Rs.12,88,600/-** instead ``` MACA NO. 2695 OF 2016 ``` ``` 10 ``` of Rs.13,41,000/- awarded by the Tribunal, with 9% interest per annum from the date of petition till realisation and costs. 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/ ```