Reliance General Insurance Company Limited v. Adila and Mishal Liyana (minor) represented by her mother and Mariyumma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 3[RD] DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943** **MACA NO. 3021 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OPMV 330/2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI, MALAPPURAM** ## **APPELLANT/S:** RELIANCE GENERAL INSURANCE COMPANY LIMITED 2ND FLOOR, CITADAL ARCADE, RC ROAD, OPP. TAGORE CENTENARY HALL, KOZHIKODE-673032, NOW REPRESENTED BY ITS MANAGER, LEGAL-CLAIMS, REGIONAL OFFICE, VISHNU BUILDING, K.P.VALLON ROAD, KADAVANTHRA P.O., KOCHI682020. BY ADVS. MATHEWS JACOB (SR.) P.JACOB MATHEW ## **RESPONDENT/S:** 1 ADILA,AGED 25 YEARS W/O. N.T.SHIHAB, VEERASSERI HOUSE, CHEREEKAD, KANNAMANGALAM WEST P.O., TIRURANGADI TALUK, MALAPPURAM DISTRICT-676305. 2 MISHAL LIYANA N.T.,AGED 5 YEARS (MINOR), VEERASSERI HOUSE, CHEREEKAD, KANNAMANGALAM WEST P.O., TIRURANGADI TALUK, MALAPPURAM DISTRICT676305, REPRESENTED BY HER MOTHER 1ST RESPONDENT. 3 MARIYUMMA, AGED 53 YEARS W/O.BEERAN NELLIKATHODI, PALAMTHODU HOUSE, KANNAMANGALAM WEST P.O., TIRURANGADI TALUK, MALAPPURAM DISTRICT-676305. ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.3021 of 2021 ## **C.S.DIAS, J. ====================== MACA No.3021 of 2021** ## **====================== Dated this the 3[rd] day of November, 2021.** ## **JUDGMENT** The appellant was the second respondent in OP(MV) 330/2018 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondents 1 and 2 were the petitioners and the third respondent was the third respondent before the Tribunal. The appellant has not impleaded the respondents 1, 4 to 7 before the Tribunal 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 petitioners had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one N.T.Shihab (deceased), the husband of the first petitioner and father of the second petitioner. It was their case that, on 3 MACA No.3021 of 2021 26.8.2017, while the deceased was riding his scooter bearing registration No.KL-65/F-561 from Karuvankallu to Parambil Peedika, when he reached the place named Kadappadi-Ungungal, a tipper lorry bearing registration No.KL-10/AG 8834 (lorry), driven by the first respondent in a rash and negligent manner, hit the scooter of the deceased. The deceased was thrown on the road and he lost his life instantaneously. The first respondent was also the owner and the third respondent was the insurer of the lorry. The respondents 3 to 7 were the mother and of the deceased. The deceased was a siblings businessman and was earning a monthly income of Rs.18,000/-. The deceased was 27 years old. The petitioners were the dependents of the deceased. Hence, the petitioners claimed a total compensation of Rs.39,20,000/- from the respondents 1 and 2. 3. The first respondent did not contest the proceeding and was set ex parte. 4 MACA No.3021 of 2021 4. The respondents 2 to 7 entered appearance and filed written statements. 5. The second respondent had filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the deceased. The second respondent also disputed the age, income and occupation of the deceased. Nevertheless, the second respondent admitted that the lorry had a valid insurance coverage. 6. The respondents 3 to 7 had filed a joint written statement, inter alia, contending that the marriage between the first petitioner and the deceased was dissolved as per the personal law of the parties. Hence, only the respondents 3 to 7 were the legal representatives of the deceased. 7. The petitioners marked Exts A1 to A6 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and 5 MACA No.3021 of 2021 materials on record, allowed the claim petition, in part, by permitting the petitioners to realise from the second respondent an amount of Rs.19,55,000/- with interest at the rate of 9% per annum from the date of petition till the date of realisation and proportionate costs. 9. Aggrieved by the award, the second respondent – insurer is in the appeal. 10. Heard: Sri.Mathews Jacob, the learned Senior Counsel appearing for the appellant/second respondent/insurer. 11. The principal grounds of challenge in the memorandum of appeal are: (i) the Tribunal has failed to consider that there was contributory negligence on the part of the deceased, (ii) the compensation awarded by the Tribunal was excessive, (iii) the Tribunal ought not to have awarded compensation for loss of love and affection and pain and sufferings, and (iv) the rate of interest awarded by the Tribunal is on the higher side. 6 MACA No.3021 of 2021 ## **Ground No.(i)** 12. Annexure A2 charge-sheet filed by the Police substantiates that the accident occurred due to the negligence of the first respondent, who was driver cum owner of the offending lorry. The appellant/second respondent admitted that the lorry had a valid insurance coverage and had not proved that the first respondent had violated the insurance policy conditions. The respondents did not let in any evidence to discredit Ext A2 charge-sheet as laid down by this Court in **New India Assurance Co. Ltd v. Pazhaniammal – [(2011)** **(3)KLT 648]** . Therefore, I hold that the finding of the Tribunal that the accident occurred due to the negligence of the first respondent is correct and in accordance with law. Hence, I answer ground No.(i) against the appellant by confirming the finding of the Tribunal fixing negligence on the first respondent. As the appellant/second respondent was the insurer, the second 7 MACA No.3021 of 2021 respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Ground Nos (ii) and (iii)** 13. The petitioners had contended that the deceased was a businessman and he was aged 27 years at the time of his death. Although they asserted that the deceased was earning a monthly income of Rs.18,000/-, for want of material, the Tribunal following the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** and **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd. - [(2014) 2 SCC 735]** has fixed the monthly notional income of the deceased at Rs.9,000/-. After fixing the notional income of the deceased at Rs.9,000/- per month, the Tribunal has awarded the petitioners future prospects at 40% and deducted one-third of the compensation for loss of dependency towards the personal living expenses of the 8 ## MACA No.3021 of 2021 deceased. The Tribunal has rightly adopted the multiplier at '17' and then fixed the compensation for loss of dependency at Rs.17,13,600/- 14. On an appreciation of the pleadings and materials on record, I find that the Tribunal has rightly awarded the compensation for loss of dependency as per the ratio of the Hon'ble Supreme Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)].** 15. The Tribunal has also awarded conventional heads of compensation as laid down by the Hon'ble Supreme Court in **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** . 16. The other area of dispute is that the Tribunal after awarding compensation under the conventional heads has awarded Rs.75,000/- towards loss of love and affection and Rs.10,000/- awarded towards pain and sufferings. 9 MACA No.3021 of 2021 17. In **New India Assurance Co., Ltd vs. Vineesh.J [ 2018 (3) SCC 619]** , the Hon'ble Supreme Court has held that the Appellate Court can permit variation of plus or minus 4 to 5 percent. 18. In the instant case, the maximum amount that can be said to be excessive is Rs.75,000/-, that was awarded under the head loss of love and affection. In view of the law in **Vineesh.J** (supra) and the said amount falls with the 5% permissible variation limits, for which reason this appeal does not need to be admitted and then be finally decided after hearing all parties. By the time the appeal is finally disposed of and the appellant would end up paying more amount that the disputed sum as interest to the petitioners. Thus, I confirm the quantum of compensation awarded by the Tribunal and answer ground Nos (ii) and (iii) against the appellant. 10 MACA No.3021 of 2021 ## **Ground No.(iv)** 19. The Tribunal has awarded interest at the rate of 9% per annum, which the appellant contends is on the higher side. 20. In **Kishan Gopal and another v. Lala and others – [(2014) 1 SCC 244]** and **in Anjani Singh and others vs. Salauddin and others [ (2014) 15 SCC 582]** , the Hon'ble Supreme Court following the ratio in **MCD v. Uphaar Tragedy Victims Association [(2011) 14 SCC 481]** has fixed interest at the rate of 9% per annum on compensation amount paid under the Motor Vehicles Act. Therefore, I do not find any error in the Tribunal fixing the rate of interest at 9% per annum on the compensation amount. Thus, I answer ground No.(iv) also against the appellant. 21. On an overall appreciation of the pleadings and materials on record, and the elaborate findings rendered by the Tribunal, I do not find any error in the 11 MACA No.3021 of 2021 compensation awarded by the Tribunal. 22. 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. 23. It is to be borne in mind that the accident occurred as early as on 26.8.2017. 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. It is settled law that the Tribunals are permitted to do some guess work and also exercise their discretion in awarding reasonable and just compensation, for which there cannot be any strait jacket formula based on mathematical exactitude. I find that the Tribunal has, after a threadbare analysis of the facts and the law, judicially exercised its powers based on 12 MACA No.3021 of 2021 the provisions in the Motor Vehicles Act, 1988 and the authoritative precedents of the Honourable Supreme Court while arriving at the impugned 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. 24. Following the ratio in **Kiran Sing** (supra) and in exercise of the powers of this Court under Order 41 Rule 11 of the Code of Civil Procedure, I decline to admit the appeal as it is devoid of any merit. Resultantly, I dismiss the appeal at the threshold. Sd/- sks/3.11.2021 **C.S.DIAS, JUDGE**