Reliance General Insurance Co. Ltd. v. Smisha and others (MACA No.2101 of 2021)

1 M.A.C.A.No.2101 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 9[TH] DAY OF AUGUST 2021 / 18TH SRAVANA, 1943 MACA NO. 2101 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OPMV 894/2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR, MALAPPURAM** ## **APPELLANT/S:** RELIANCE GENERAL INSURANCE CO.LTD 2[nd] FLOOR, GLOBAL PLAZA, VANCHIKULAM ROAD P.O POOTHOLE, PIN 680 004, THRISSUR DISTRICT REPRESENTED BY ITS MANAGER, REGIONAL OFFICE 2ND FLOOR, VISHNU BUILDING K.P.VALLON ROAD, KADAVANTHRA 680 20 BY ADVS. GEORGE CHERIAN (SR.) K.S.SANTHI LATHA SUSAN CHERIAN ## **RESPONDENT/S:** 1. SMISHA, AGED 34 YEARS, W/O LATE RAVI, RESIDING AT THAYAMPULLI HOUSE, P.O.NARIPPARAMB, THAVANOOR, PIN- 679 573, PONNANI TALUK, MALAPPURAM DISTRICT 2.ABHINAV.T, S/O LATE RAVI, AGED 11 YEARS (MINOR) RESIDING AT THAYAMPULLI HOUSE, P.O.NARIPPARAMB, THAVANOOR, PIN- 679 573, PONNANI TALUK, MALAPPURAM DISTRICT REPRESENTED BY NEXT FRIEND AND GUARDIAN MOTHER FIRST RESPONDENT. 3.ARJUN.T, S/O LATE RAVI, AGED 9 YEARS (MINOR) RESIDING AT THAYAMPULLI HOUSE, P.O.NARIPPARAMB, THAVANOOR, PIN- 679 573, PONNANI TALUK, MALAPPURAM 2 ## M.A.C.A.No.2101 of 2021 DISTRICT REPRESENTED BY NEXT FRIEND AND GUARDIAN MOTHER FIRST RESPONDENT. 4.CHANDRAN T., AGED 72 YEARS S/O.AYYAPPU, RESIDING AT THAYAMPULLI HOUSE, P.O.NARIPPARAMB, THAVANOOR, PIN- 679 573, PONNANI TALUK, MALAPPURAM DISTRICT 5.THANKA.T, AGED 67 YEARS, W/O.CHANDRAN, RESIDING AT THAYAMPULLI HOUSE, P.O.NARIPPARAMB, THAVANOOR, PIN- 679 573, PONNANI TALUK, MALAPPURAM DISTRICT 6.AJITHA.T, W/O.HARIDASAN CHAMAPARAMBIL HOUSE, MANGATTOR P.O PERUMPARAMBA, PIN-679 576, EDAPPAL, MALAPPURAM DISTRICT 7.BINDU.T, W/O.BALAN, THANNIKKALODY HOUSE PURAMADHISSERI, P.O KUMBIDI, PIN 679 553 ANAKKARA, PALAKKAD DISTRICT THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 M.A.C.A.No.2101 of 2021 ## **C.S.DIAS, J.** ---------------------------------------- ## **M.A.C.A.No.2101 of 2021** **----------------------------------------** ## **Dated this the 9[th] day of August, 2021** ## **JUDGMENT** The appellant - insurer was the third respondent in OP(MV) No.894/2017 on the file of the Motor Accidents Claims Tribunal, Tirur. The respondents 1 to 7 in the appeal were the petitioners before the Tribunal. The respondents 1 and 2 before the Tribunal have not been impleaded as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The claim petition was filed under section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Ravi (deceased) in an accident on 3.8.2017. 4 M.A.C.A.No.2101 of 2021 3. It was the case of the petitioners in the claim petition that on 3.8.2017, while the deceased was riding his motor cycle bearing registration No.KL-10/L 5297 from Pothannur to Naripparamba, a lorry bearing registration No.KL-47/C 2828 (lorry) driven by the second respondent in a rash and negligent manner hit the motor cycle. The deceased sustained serious injuries and was taken to a nearby hospital. He was treated as an inpatient for a period of 9 days, but succumbed to the injuries on 12.8.2017. The deceased was a Tailor by profession and earning a monthly income of Rs.15,000/-. The first petitioner was the wife, petitioners 2 and 3 were the children, petitioners 4 and 5 were the parents and supplemental petitioners 6 and 7 were the sisters of the deceased. The lorry was owned by the first respondent and insured with the third respondent. The petitioners claimed a total compensation of Rs.30,00,000/- from the respondents. 5 ## M.A.C.A.No.2101 of 2021 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent - insurer filed a writtenstatement contending that the accident occurred due to the negligence on the part of the deceased, who entered the main road from a pocket road without adhering to the traffic regulations. However, the third respondent admitted that the lorry had a valid insurance coverage. It was also stated that the amount of compensation claimed under the different heads was excessive. 6. The petitioners produced and marked Exts A1 to A10 in evidence. The respondents did not let in any evidence. 7. The Tribunal by the impugned award allowed the claim petition in part by permitting the petitioners to realise an amount of Rs.23,34,000/- with interest and costs from the third respondent. 6 M.A.C.A.No.2101 of 2021 8. Aggrieved by the said award, the third respondent – insurer is in appeal. 9. Heard Sri.George Cherian, the learned Senior Counsel appearing for the appellant/third respondent – insurer. 10. The principal grounds of challenge in the memorandum of appeal are that the notional income fixed by the Tribunal is on the higher side and the Tribunal has gone wrong in awarding Rs.2,50,000/towards loss of love and affection and Rs.2,00,000/towards loss of consortium. Therefore, the impugned award may be set aside. 11. On a perusal of the impugned award, it can be gathered that as per Ext A3 final report filed by the Ponnani Police in crime No.260/2017, the accident occurred solely due to the negligence of the second respondent. The first respondent was the owner and third respondent was the insurer of the lorry. 7 ## M.A.C.A.No.2101 of 2021 12. The specific case of the petitioners was that the deceased was a Tailor by profession and earning a monthly income of Rs.15,000/-. The Tribunal fixed the notional income of the deceased at Rs.9,000/-. 13. 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 worker in the year 2004 at Rs.4,500/- per month. 14. In fact, if the ratio in the aforecited decision is followed, the notional income of the deceased fixed by the Tribunal is on the lower side. 15. Similarly, in clause (viii) of paragraph 61 in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** the Hon'ble Supreme Court has categorically held that the dependents of the deceased are entitled for compensation for loss of consortium at Rs.40,000/- each. 8 ## M.A.C.A.No.2101 of 2021 16. Taking into consideration the fact that the petitioners 1 to 5 were the dependents of the deceased, namely, wife, children and parents of the deceased, I do not find any illegality or error in the Tribunal awarding compensation towards loss of consortium. Similarly, the Tribunal has awarded Rs.50,000/- each to the petitioners under the head loss of love and affection. 17. On an overall appreciation of the pleadings and the impugned award, particularly the fact that the notional income of the deceased has been fixed only at Rs.9,000/-, I hold that the compensation awarded by the Tribunal is just and reasonable compensation. I do not find error or in the threadbare any illegality appreciation of facts by the Tribunal with regard to fixation of compensation. 18. The Honourable Supreme Court in **New India Assurance Co. Ltd. vs. Kiran Sing & Ors. [2004 (AIR) SCW 4212]** has deprecated the practice of 9 ## M.A.C.A.No.2101 of 2021 insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. It is also observed 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 practice. 19. It is to be borne in mind that the accident occurred on 3.8.2017. It is more than four years since the petitioners have been knocking at the doors of the Court seeking for compensation on account of the death of their breadwinner. Moreover, it is also settled law that the Tribunals are permitted to do some guess work and also exercise their discretion in awarding the reasonable and 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 10 M.A.C.A.No.2101 of 2021 and the authoritative precedents of the Honourable Supreme Court and this Court while arriving at the conclusion. I do not find any 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/ petitioners. Following the ratio in **Kiran Sing** (supra), I 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** sks/9.8.2021