Reliance General Insurance Co. Ltd. v. ShyLaja, Akshara Madhu, Keerthana Madhu and Prasanth R.G. (MACA No.1590/2018)

MACA.No.1590/2018 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945_ ## _MACA NO. 1590 OF 2018_ _AGAINST THE ORDER/JUDGMENT OPMV 307/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA_ ## _APPELLANT/3rd RESPONDENT:_ _RELIANCE GENERAL INSURANCE COMPANY LTD., BANGALORE NOW REPRESENTED BY ITS LEGAL CLAIMS MANAGER, REGIONAL OFFICE, KOCHI 682 020._ _BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW_ _RESPONDENTS/PETITIONERS AND 2ND RESPONDENT:_ - _1 SHYLAJA, W/O.MADU, THEKKEVEEDU @ USHALAYAM HOUSE, KIZHAKKEKARA,MUVATTUPUZHA TALUK, PIN 686 661._ - _2 AKSHARA MADHU, D/O.MADHU, THEKKEVEEDU @ USHALAYAM HOUSE, KIZHAKKEKARA,MUVATTUPUZHA TALUK, PIN 686 661._ - _3 KEERTHANA MADHU, D/O.MADHU, THEKKEVEEDU @ USHALAYAM HOUSE, KIZHAKKEKARA,MUVATTUPUZHA TALUK, PIN 686 661._ - _4 PRASANTH R.G, S/O.GANGADHARAIAH B.G,SIVAGANGA NILAYA, SIVANGANGA TRAVELS,SIRAGATE TUMKUR, KARNATAKA_ MACA.No.1590/2018 2 _STATE 572 102._ _BY ADVS. SRI.ROY THOMAS (MUVATTUPUZHA) SRI.ABU MATHEW SRI.AJU MATHEW_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1590/2018 3 ## **JUDGMENT** The appellant is the 3[rd] respondent in O.P(MV).No.307 of 2015 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. 2. The said claim petition was submitted by respondents 1 to 3 herein, seeking compensation for the death of one Madhu in a motor accident that occurred on 06.02.2014. The deceased is the husband of the 1[st] respondent and the father of the 2[nd] and 3[rd] respondents. According to the claimants, the accident occurred when a tourist bus bearing register No.KA-4/C-8259, driven by the 1[st] respondent in the claim petition, hit the deceased while he was walking through the Muvattupuzha-Perumbavoor public road. The claimants contended that the deceased was aged 51 years and was working as a driver with a monthly salary of Rs.10,000/-. The compensation they claimed was for an amount of Rs.10,00,000/-. 3. The owner and the driver of the said vehicle did not contest the matter and were set ex- parte. The appellant/the MACA.No.1590/2018 4 3[rd] respondent filed a written statement, admitting that they issued an insurance policy to the said vehicle, but the liability was disputed. The averment regarding the negligence on the part of the driver of the vehicle was disputed by them, and also disputed the quantum of compensation. They alleged violation of policy conditions on the part of the insured, as, according to them, the driver did not have a valid driving license. 4. The evidence in this case consists of the oral evidence of PW1 and documentary evidence in the form of Ext.A1 to A12. From the side of the respondents, Exts.B1 and B2 were marked. After examining the materials placed on record, the Tribunal arrived at the conclusion that the accident occurred due to the negligence on the part of the driver of the bus and being the insurer of the said vehicle, the appellant was held liable to pay the compensation. However, the Tribunal found that there was a violation of the policy condition as the driver did not have a valid driving licence. The quantum of compensation was fixed as Rs.10,79,838/- and the appellant Insurance Company was directed to deposit the MACA.No.1590/2018 5 said amount along with 6% interest per annum from the date of petition till the date of realization. It was further directed that if the deposit is not made within five months from the date of award, interest shall be at the rate of 9%. The appellant was permitted to recover the amount of compensation from the 2[nd] respondent after satisfying the award. This appeal is submitted by the appellant, challenging the aforesaid award. 5. Heard Sri.P. Jacob Mathew, learned counsel for the appellant and Sri.Roy Thomas, learned counsel for the respondents/claimants. 6. The learned counsel for the appellant raises various contentions in support of the challenge against the award. One of the contentions relates to the negligence on the part of the 1[st] respondent. However, the crucial aspect to be noticed in this regard is that the police, after investigation, submitted Ext.A6 final report in Crime No.2264 of 2014 of Kunnathunadu Police Station against the driver of the tourist bus. Moreover, the deceased was a pedestrian as well. The position of law in this regard is settled by this Court in **New** MACA.No.1590/2018 6 ## **India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT** **648],** wherein a Division Bench of this Court held that in the absence of any contra evidence, the findings in the police report can be accepted for deciding the question of negligence. In this case, even though Ext.A6 final report is produced, no contra evidence was adduced by the appellant and therefore, in the light of the principles laid down in **Pazhaniyammal** (supra), the contention raised by the appellant in this regard is only to be rejected. 7. When moving to the question of the quantum of compensation, one of the contentions raised by the learned counsel for the appellant relates to the monthly income fixed by the Tribunal. It was pointed out that the monthly income of the deceased driver, according to the claimants, was Rs.10,000/- and even though no evidence was adduced, the Tribunal accepted the said monthly income. According to the appellants, the fixation of the monthly income is not at all proper. However, I am not inclined to accept the said contention. The Tribunal arrived at the conclusion as to the avocation of the deceased based on his driving licence. MACA.No.1590/2018 7 Moreover, in **Manusha Sreekumar v. United India Insurance Co. Ltd. [2022 (5) KLT online 1024],** the Honourable Supreme Court, by placing reliance on the notification dated 04.09.2015 issued by the Kerala Government under the provisions of the Kerala Motor Transport Workers’ Payment of Fair Wages Act, 1971 (“Kerala Fair Wages Act”), found that the monthly income of Rs.15,600/- can be fixed for a driver in respect of an accident occurred in the year 2015. In the said decision, the driver was treated as a skilled worker. The primary contention raised by the learned counsel for the appellant on the question of monthly income is by placing reliance upon the decisions rendered by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735].** However, the guidelines in the said decisions are applicable to ordinary employees, whereas a different conclusion is possible for a skilled employee. In this case, in the light of the observations made by the Honourable MACA.No.1590/2018 8 Supreme Court in **Manusha’s case** , a different approach is possible, and there is nothing wrong in adopting the monthly income of Rs.10,000/- as claimed by the appellant for the purpose of computing the compensation for loss of dependency. This is mainly because the accident occurred in the year 2014. Therefore, on this ground, I do not find any justification for interfering with the award. 8. The other aspect pointed out by the learned counsel for the appellant relates to the amount of Rs.25,000/awarded under the head pain and suffering. It was pointed out that no amount could have been granted for that head. However, even though I find some force in the contention of the learned counsel for the appellant, I do not intend to interfere with the said amount for the following reasons. It is to be noted that the funeral expenses to be awarded were actually Rs.15,000/-, but what was awarded is only Rs.6,000/-. Besides the same, the amount awarded under the head of loss of consortium was only Rs.40,000/- whereas the claimants, being the wife and the children, are entitled to a higher amount under this head. In such circumstances, even though MACA.No.1590/2018 9 I find that the amount of Rs.25,000/- awarded under the head of pain and suffering should not have been awarded, I am of the view that it is not necessary to interfere in the said award due to the fact that the amount awarded under the head of loss of consortium is on the lower side. Therefore, interference in the award to reduce the compensation would deprive the respondent of just compensation. 9. The learned counsel for the appellant lastly pointed out that the Tribunal had imposed the penal interest on the appellant company by ordering that if the amount is not deposited within five months, the interest rate would be 9%. I find that such a penal interest is not at all necessary. In such circumstances, this appeal is allowed in part by setting aside the directions issued by the Tribunal to deposit the amount, with interest at the rate of 9% per annum, if the amount is not deposited within five months from the date of award. To be precise, the award passed by the Tribunal is thus modified, directing the appellant to deposit the said amount along with interest at the rate of 7% from the date of petition till realization. The said amount shall be deposited within three MACA.No.1590/2018 10 months from the date of receipt of this judgment after adjusting the amounts already deposited by them. Sd/- **ZIYAD RAHMAN A.A., JUDGE** DG/4.10.23