Reliance General Insurance Co. Ltd. v. Sobhana Kumari and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 14TH DAY OF JANUARY 2019 / 24TH POUSHA, 1940** ## **M.A.C.A.No. 1149 of 2016** **AGAINST THE AWARD IN O.P.(M.V.)No.664/2013 OF THE COURT OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-I,PATHANAMTHITTA DATED 21.11.2015** ## **APPELLANT/3RD RESPONDENT:** **RELIANCE GENERAL INSURANCE CO. LTD. KOCHI, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,ERNAKULAM.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** ## **RESPONDENTS/CLAIMANTS:** **1 SOBHANA KUMARI. W/O.G.VIJAYAN NAIR, CHAITHANYA HOUSE,MANAKALA P.O., ADOOR, PIN 691551.** **2 AISWARYA LAKSHMI W/O.DIPU KUMAR, KALLETHU HOUSE,ARUKALICKAL WEST, ADOOR P.O., PIN 689694. 3 CHYTHANYA W/O.SARATH KUMAR,SARATH BHAVAN, VALLIKODE P.O.,KAIPATTOOR, PIN 689648. BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No.1149 of 2016 2** ## **JUDGMENT** This appeal is directed against the award dated 21.11.2015 of the Additional Motor Accident Claims Tribunal-I, Pathanamthitta (for short 'the Tribunal') in O.P.(M.V.)No.664 of 2013. 2. The appellant is the third respondent/insurer before the Tribunal. The challenge is totally against the quantum of compensation awarded by the Tribunal as per the impugned award for the reason that, it is excessive. 3. Sri.George Cherian, the learned senior counsel has advanced arguments on behalf of the appellant and Sri.A.N.Santhosh, the learned counsel advanced arguments on behalf of the claimants. Before adverting to the rival contentions, it is relevant to have a brief discussion of the facts of the case:- One G.Vijayan Nair, died in a motor accident occurred at 6.30 p.m on 05.02.2013, at Adoor bypass road. Mr.Vijayan Nair was riding a motorcycle bearing registration No.KL-26-C-2807 from Adoor to Manakkala through Adoor bypass road and the ## **M.A.C.A.No.1149 of 2016 3** vehicle driven by him was hit by a car bearing registration No. KL-24-B-6592, due to the rash and negligent driving by its driver. He sustained fatal injuries and was taken to Government Hospital, Adoor wherefrom he was referred to KIMS Hospital, Thiruvananthapuram. After 5 days of treatment, during the course, he succumbed to the fatal injuries received by him in the accident. Alleging that the motor accident was occurred due to the rash negligent driving of the car by its driver and seeking for the grant of a total sum of Rs.45,00,000/-, as compensation, the claim petition as above was preferred by his legal heirs. Before the Tribunal, the petitioners got the wife of the deceased examined as PW1 and adduced documentary evidence as Exts.A1 to A15 series. Neither any oral nor documentary evidence was let in by the sole contesting third respondent. 4. On appreciation of the entire evidence on record, the Tribunal found the driver of the car rush and negligent in driving the same and responsible for the accident and arrived at a sum Rs.39,62,511/- as the compensation payable. The Tribunal directed the third respondent, the appellant in the case on hand ## **M.A.C.A.No.1149 of 2016 4** to deposit the said amount with interest at the rate of 9% per annum from the date of the claim petition till the date of realisation with proportionate costs of Rs.2,39,023/-. Aggrieved by the quantum of compensation awarded by the Tribunal, the third respondent, insurer has approached this Court, in the captioned appeal. 5. The main contention advanced by the learned counsel for the appellant was that Rs.40,000/- was taken by the Tribunal as monthly income of the deceased for the purpose of calculation of compensation and the same is on the higher side. It is also contended by the learned counsel that the Tribunal has awarded higher sums as compensation under the heads loss of love and affection, loss of consortium, loss of estate and funeral expenses. According to the learned counsel, the Constitutional Bench of the Apex Court in _**National Insurance Company Ltd. v. Pranay Sethi (2017(4) KLT 662 (SC)**_ found Rs.40,000/- and Rs.15,000/- respectively as payable under the conventional heads of loss of consortium, loss of estate and funeral expenses. According to the learned counsel, the grant of compensation by the Tribunal under the conventional heads ## **M.A.C.A.No.1149 of 2016 5** exceeds the amount fixed by the Apex Court and therefore interference is warranted. It is also contended by the learned counsel that Rs.1,00,000/- awarded under the head loss of love and affection is also against the findings in **Pranay Sethi's** case supra. Accordingly, the learned counsel seeks for a modification of the impugned award by necessary interference on above counts. 6. Per contra, Sri.A.N.Santhosh, the learned counsel on behalf of the respondents/claimants has contended that the compensation awarded by the Tribunal under various heads is just and reasonable and interference of any nature is totally unwarranted. According to the learned counsel the monthly income was taken by the Tribunal as Rs.40,000/-, based on the documentary evidence on record adduced by the petitioners as Ext.A9 to Ext.A14. Accordingly, the learned counsel seeks for confirmation of the award. 7. In the backdrop of the rival contentions advanced as above, this Court ventured to analyse the evidence on record to see whether the Tribunal went wrong in any way in fixing the quantum of compensation payable to the petitioners. ## **M.A.C.A.No.1149 of 2016 6** 8. The monthly income for the purpose of computation of compensation is taken by the Tribunal as Rs.40,000/-. It is relevant to notice from the evidence on record that the wife of the deceased has mounted the box to depose as PW1. She had deposed that her husband was running a Studio cum Videographic centre and was getting more than Rs.50,000/- per month. According to her, prior to his death itself arrangements have been made by him to start a Colour Lab attached to the Studio. It is also stated by her that, her husband had taken a loan to the tune of Rs.4,85,000/- from District Co-operative Bank, Adoor on 08.10.2009, for expansion of his business in the above manner and had paid a sum of Rs.3,20,920/- towards repayment in 37 installments. According to her, Rs.8,656/was paid by her husband monthly towards the loan arrears and Ext.A9 evidences that. The further statement of PW1 was that her husband was also running STD Booth of B.S.N.L and was getting approximately Rs.5,000/- therefrom and Ext.A10 evidences that. On the basis of Ext.A12, it was deposed by PW1 that her husband had a Recurring Deposit in Syndicate Bank, Adoor and was depositing Rs.3,000/- monthly towards ## **M.A.C.A.No.1149 of 2016 7** that. It is also brought out in evidence that, her husband was maintaining a recurring deposit in her name and Rs.500/- is deposited in it monthly. She has relied on Ext.A14 to sustain her claim. It is pertinent to note that, the certificate issued from the Bank and marked in evidence as Ext.A12 was not put to proof by examining the officials of Bank. From Ext.A9 series to Ext.A14, it is evidenced that the deceased had expenditure of Rs.17,156/- from his monthly earnings. Evidence on record would also reveal that the deceased was maintaining his family consisting of his wife alone. Respondents 2 and 3 in the appeal are his daughters who are evidenced from the address furnished in the claim petition as married away. It is evidenced from Ext.A11 that, the deceased was a member of Kerala Vyapari Ekopana Samithi since 2004-2005. The death of Sri.Vijayan Nair was occurred in the year, 2013. Evidence on record established satisfactorily that Mr.Vijayan Nair has been running the Studio cum Videographic centre for last 13 years. Therefore, he must be taken to have reasonable and sufficient earnings therefrom. Therefore, the amount which must have been kept apart by the deceased after the expenditure and ## **M.A.C.A.No.1149 of 2016 8** deposits as above is arrived at approximately on an estimate as Rs.18,000/-. Duly considering those aspects that the Tribunal has fixed Rs.40,000/- as the monthly income, but the fixation of Rs.40,000/- being somewhat excess, this Court is inclined to reduce a sum of Rs.5,000/- therefrom and to re-fix it as Rs.35,000/- . 9. The Constitutional Bench of the Apex Court in **Pranay Sethi's** case supra has permitted 10% addition to the monthly income in the case of a victim of a motor accident died at the age in between 50 to 60 years in consideration of future prospects. In the case on hand, it is evidenced from the version tendered by PW1 and Ext.A5, the Postmortem Certificate that the deceased was aged 56 years at the relevant time of his death. The Tribunal has taken 15% addition to the monthly income in consideration of future prospectus of the deceased while calculating the compensation payable. In view of _**Pranay Sethi's**_ case supra, 15% addition to the monthly income being incorrect, this Court is inclined to modify the same by reducing it to 10%. The multiplier was correctly applied by the Tribunal in view of **Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)]** _**.**_ ## **M.A.C.A.No.1149 of 2016 9** 10. In the re-fixation of compensation for loss of dependency by taking the monthly income as Rs.35,000/-, adding 10% towards future prospects and deducting 1/3 towards personal expenditure likely to be incurred by the deceased had he been alive and multiplying with 9 as the multiplier, the sum payable is arrived at as Rs.27,71,999/-. The Tribunal in the wrong fixation has arrived at the compensation as Rs.33,12,000/-. The amount now arrived at by this Court in interference, when deducted therefrom the difference will be Rs.5,40,001/-. 11. As rightly pointed out by the learned counsel for the appellant, the amount payable under the conventional heads of loss of consortium, loss of estate and funeral expenses would be Rs.40,000/- and Rs.15,000/- each. The Tribunal has awarded a sum of Rs.1,00,000/- each under the head loss of consortium and loss of estate and Rs.25,000/- under the head funeral expenses. The amount granted as compensation being in excess of the sums directed as payable in **Pranay Sethi's** case, this Court is inclined to modify the same by re-fixing it to Rs.40,000/- under the head loss of consortium and Rs.15,000/- ## **M.A.C.A.No.1149 of 2016 10** each under the heads loss of estate and funeral expenses. Thus, there would be a reduction respectively of Rs.60,000/-, Rs.85,000/- and Rs.10,000/- under the heads, loss of consortium, loss of estate and funeral expenses. 12. Under the head loss of love and affection, the Tribunal has awarded a sum of Rs.1,00,000/-, which as rightly pointed out by the learned counsel for the appellant is on the higher side. It is true that the in _**Rajesh and others v. Rajbir Singh and others [2013 ACJ 1403 (SC)],**_ the Apex Court has awarded a sum of Rs.1,00,000/- to each of the daughters of the deceased towards loss of love and affection. But, in _**Pranay Sethi's**_ case _supra,_ the Constitutional Bench of the Apex Court has declared that the law laid down in _**Rajesh's**_ case as not a binding precedent. But, in _**Magma General Insurance Co.Ltd v. Nanu Ram and Others [2018 ACJ 2782 (SC)],**_ the Apex Court has maintained Rs.1,00,000/granted by the High Court under the head loss of love and affection to two minor children of the deceased, when the award passed by the High Court was taken up in challenge. Therefore, the Apex Court is not against grant of compensation under the ## **M.A.C.A.No.1149 of 2016 11** head loss of love and affection. Since, the wife was granted compensation under head loss of consortium, this Court is declined to grant any sum as compensation to her towards loss of love and affection. The deceased was evidenced as survived by two daughters. In the aforesaid circumstances, this Court is inclined to grant Rs.30,000/- each as compensation to two married daughters of the deceased under that head. In the refixation under the head loss of love and affection the sum already granted by the Tribunal will be reduced to Rs.40,000/-. 13. In the interference by this Court and in re-fixation of compensation, there would be a deduction of Rs.7,55,000/(5,40,000+20,000+10,000+40,000+60,000+85,000) from the total sum payable as compensation. Therefore, the total sum payable to the petitioners will be **Rs.32,07,511/-** ( **Rupees thirty two lakhs seven thousand five hundred and eleven** **only** ). Needless to say that, the amount will carry interest at the rate of 9% per annum from the date of the claim petition till the date of realisation and the proportionate costs as fixed by the Tribunal. ## **M.A.C.A.No.1149 of 2016 12** The appeal is allowed in part on the above terms. It is submitted by the learned counsel for the appellant that, Rs.15,00,000/- is already deposited by them in favour of the petitioners before the Tribunal. Therefore, the appellant/third respondent shall deposit the balance sum from the sum now arrived at with interest and the proportionate cost within a period of two months from the date of receipt of a copy this judgment. The parties to the appeal shall bear their respective costs. **Sd/-** **MARY JOSEPH** **JUDGE** NAB