Reliance General Insurance Co. Ltd. v. Salini K. Nair and Radhamani Amma

1 MACA NO. 2848 of 2018 IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943 MACA NO. 2848 OF 2018 AGAINST THE ORDER/JUDGMENT IN OPMV 1026/2012 OF ADDITIONAL DISTRICT & SESSIONS JUDGE & ADDL. M.A.C.T.- IV, ## PATHANAMTHITTA ## APPELLANT/2ND RESPONDENT: RELIANCE GENERAL INSURANCE COMPANY LTD. AREA OFFICE XL/3599,4TH FLOOR , ELIZABETH ALEXANDER MEMORIAL BUILDINGS, MARINE DRIVE , COCHIN-682031,REP. BY IT'S LEGAL CLAIMS MANAGER, RELIANCE GENERAL INSURANCE CO.LTD, ERNAKULAM BY ADV R.AJITHKUMAR VARMA ## RESPONDENT/S: 1 SALINI K. NAIR, AGED 33 YEARS, W/O LATE BIJU KUMAR, PAZHERETHU HOUSE, NARIYAPURAM P.O, VAYALA NORTH MURI, VALLICODU VILLAGE, PATHANAMTHITTA DISTRICT , PIN 689513 2 RADHAMANI AMMA, AGED 70 YEARS, W/O. LATE DIVAKARA PILLAI, PAZHERETHU HOUSE, NARIYAPURAM P.O, VAYALA NORTH MURI, VALLICODU VILLAGE, PATHANAMTHITTA DISTRICT, PIN-689513 BY ADVS. SRI.MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.T.S.SARATH SRI.R.RAJESH (VARKALA) MACA NO. 2848 of 2018 **==> picture [6 x 9] intentionally omitted <==** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2848 of 2018 3 ## **C.S.DIAS, J.** ---------------------------------------- M.A.C.A.No.2848 of 2018 ---------------------------------------- Dated this the 2[nd] day of July, 2021 ## **JUDGMENT** The appellant - Insurance Company was the 2[nd] respondent in OP(MV) No.1026/2012 on the file of the Addl.Motor Accidents Claims Tribunal, Pathanamthitta. The respondents in the appeal were the petitioners before the Tribunal. As the appellant has admitted the insurance policy, the appellant has not impleaded the 1[st] respondent in the claim petition as 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 claim petition under section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of Bijukumar (deceased), husband of the 1[st] petitioner and son of the 2[nd] MACA NO. 2848 of 2018 4 petitioner. The petitioners, interalia, averred that on 14.09.2011, while the deceased was riding a motor cycle bearing registration No.KL-05/AA/1450 along PandalamChengannoor MC Road, a motor cycle bearing registration No.KL-30-A-7233 (offending vehicle) ridden by the 1[st] respondent in a rash and negligent manner hit the motor cycle of the deceased. The deceased sustained fatal injuries and lost his life on 15.09.2011. The deceased was 37 years of age and was the Regional Manager of Parisudham Oil Company, Koothattukulam. The deceased was the sole bread winner of the family and petitioners were dependent on him. The deceased was drawing a salary of Rs.24,000/per month. The 1[st] respondent was the owner cum driver of the offending vehicle and the 2[nd] respondent was the insurer. Therefore, the 2[nd] respondent was liable to indemnify the 1[st] respondent for the liability caused on account of the accident. 3. The 1[st] respondent filed a written statement contending that the offending vehicle had a valid insurance 5 MACA NO. 2848 of 2018 policy issued by the 2[nd] respondent and that the compensation claimed by the petitioners was on the higher side. 4. The 2[nd] respondent filed a written statement, interalia, contending that the petitioners had suppressed material facts. The 1[st] respondent had ridden the motor cycle without a valid driving license. The 2[nd] respondent also disputed the age, employment and income of the deceased. 5. The petitioners produced and marked Exts.A1 to A7 in evidence. The respondents did not let in any evidence from their side. 6. The Tribunal, after analysing the pleadings and the materials on record, by the impugned award, allowed the claim petition in part by permitting the petitioners to recover an amount of Rs.14,66,000/- with interest @ 9% per annum from the date of petition till the date of realisation along with proportionate costs. The 2[nd] respondent was directed to pay the compensation amount. 7. The Tribunal, while arriving at the above said MACA NO. 2848 of 2018 6 figure, fixed the notional income of the deceased at Rs.8,000/- per month, although the petitioners had claimed that the deceased was drawing a salary of Rs.24,000/- per month. Relying on the decision in **National Insurance Co.Ltd vs. Pranay Sethi & Others** (2017 (5) KHC 350), the Tribunal awarded 40% future prospects and deducted 1/3[rd] towards the personal living expenses of the deceased. The Tribunal awarded an amount of Rs.13,44,000/- as compensation towards loss of dependancy. Similarly, the Tribunal awarded compensation under the heads 'pain and suffering', 'funeral expenses', 'loss of consortium', 'damage to clothing', 'loss of love and affection', 'loss of estate' and 'transportation expenses'. 8. The appellant has filed the appeal principally challenging the notional income fixed by the Tribunal at Rs.8,000/- per month and for granting 40% towards future prospects. 9. Heard the learned counsel appearing for the appellant. 10. Undisputedly as per Ext.A4 charge sheet filed by MACA NO. 2848 of 2018 7 the Pandalam Police in Crime No:748/11, it is found that the 1[st] respondent rode the offending vehicle in a negligent manner and caused the accident. The respondents have not let any evidence to the contrary to discredit the final report filed by the Police. 11. The petitioners had produced Ext.A7 salary certificate issued by the employer of the deceased, wherein, it is stated that the deceased was getting an amount of Rs.24,000/- per month as his gross salary. The Tribunal for the reason that the acquaintance roll and other connected papers were not produced fixed the notional income of the deceased at Rs.8,000/- per month. 12. The Honourable Supreme Court in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd. :** (2011) 13 SCC 236 has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. It was further held that the notional income has to be enhanced by Rs.500/- per year. 13. Admittedly the accident occurred in the year 2011. MACA NO. 2848 of 2018 8 In the light of the parameters in **Ramachandrappa** (supra) the notional income of the appellant is rightly fixed by the Tribunal at Rs.8,000/- per month. 14. In **Pranay Sethi** (supra), the Honourable Supreme Court has held that 40% has to be awarded towards future prospects and the relevant multiplier for a person aged 37 years is '15' and compensation has to be awarded under the conventional heads. Therefore, the quantum of compensation awarded by the Tribunal cannot be said to be unjust and unreasonable. 15. 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. It is held that if such instances are brought to the notice of the court, the court would be obliged to dismiss such appeals with heavy cost apart from deprecating such parties. MACA NO. 2848 of 2018 9 16. On an appreciation of the grounds in the memorandum of appeal, impugned award and after hearing the learned counsel for the appellant, particularly considering the fact that even though the petitioners had produced Ext.A7 salary certificate the Tribunal only fixed the notional income of the deceased at Rs.8,000/-, I am of the considered opinion that there is no error in the compensation awarded by the Tribunal. It is trite law that the Tribunals are permitted to do some guess work and also exercise its discretion to fix the reasonable and also just compensation, for which there cannot be any strait jacket formula based on arithmetical precision. I find that the Tribunal has judicially exercised its powers based on the provisions in the Motor Vehicles Act, 1988 and the precedents of the Honourable Supreme Court and this Court while fixing the just compensation as per impugned award. I do not find any justifiable ground in the memorandum of appeal warranting the admission of the appeal, which will only be a wastage of judicial time and harassment of the respondents/petitioners. Following the 10 MACA NO. 2848 of 2018 ratio in **Kiran Sing** (supra) I find that the appeal is devoid of any merit and is only to be dismissed in limine. Sd/- **C.S.DIAS JUDGE** rkc