Reliance General Insurance Company Limited v. C.V. Sajitha and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` MONDAY, THE 3[RD] DAY OF APRIL 2023 / 13TH CHAITHRA, 1945 MACA NO. 3953 OF 2019 ``` ``` AGAINST THEJUDGMENT IN OPMV 2416/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, ERNAKULAM / III ADDITIONAL MACT, ERNAKULAM ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` RELIANCE GENERAL INSURANCE COMPANY LIMITED, VISHNU BUILDING, K.P.VALLON ROAD, KADAVANTHRA, ERNAKULAM - 682 020, REP. BY ITS LEGAL CLAIMS MANAGER, RELIANCE GENERAL INSURANCE CO.LTD., ERNAKULAM. BY ADVS. R.AJITH KUMAR (128/84) TAPAS VARMA A. ``` ## **`RESPONDENTS/CLAIMANTS:`** ``` 1C.V.SAJITHA, W/O.SAJU, AGED 42 YEARS, RESIDING AT 70/621, CHELLITHARAPARAMBIL HOUSE, TOLL GATE ROAD, VADUTHALA P.O., ERNAKULAM DISTRICT -682 023. 2K.S.VISHNU (MINOR), S/O.SAJU, AGED 15 YEARS, RESIDING AT 70/621, CHELLITHARAPARAMBIL HOUSE, TOLL GATE ROAD, VADUTHALA S.O., ERNAKULAM DISTRICT - 682 023, (REP. BY HIS MOTHER C.V.SAJITHA, W/O.SAJU, AGED 42 YEARS, RESIDING AT 70/621, CHELLITHARAPARAMBIL HOUSE, TOLL GATE ROAD, VADUTHALA S.O., ERNAKULAM DISTRICT - 682 023). 3VISMAYA (MINOR), D/O.SAJU, AGED 10 YEARS, RESIDING AT 70/621, CHELLITHARAPARAMBIL HOUSE, TOLL GATE ROAD, VADUTHALA S.O., ERNAKULAM DISTRICT -682 023 (REP. BY HER MOTHER C.V.SAJITHA, W/O.SAJU, AGED 42 YEARS, RESIDING AT 70/621, ``` **MACA 3953/19 & CO 219/19** **==> picture [20 x 9] intentionally omitted <==** ``` CHELLITHARAPARAMBIL HOUSE, TOLL GATE ROAD, VADUTHALA S.O., ERNAKULAM DISTRICT - 682 023). 4SANTHA, W/O.SUKUMARAN, AGED 67 YEARS, RESIDING AT KAKKATHARA HOUSE, THOTTATHIPARAMBU ROAD, MARADU P.O., ERNAKULAM - 682 304. BY ADVS. SRI.MATHEWS K.PHILIP SMT.MINISHA K DAS ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 03.04.2023, ALONG WITH CO.219/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA 3953/19 & CO 219/19** ..3.. ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 3[RD] DAY OF APRIL 2023 / 13TH CHAITHRA, 1945 CO NO. 219 OF 2019 ``` ``` AGAINST THE JUDGMENT IN MACA 3953/2019 OF HIGH COURT OF ``` ## **`KERALA`** ``` CROSS OBJECTORS/RESPONDENTS 1 TO 4/CLAIMANTS 1 TO 4: ``` ``` 1C.V.SAJITHA, AGED 42 YEARS W/O SAJU, RESIDING AT 70/621, CHELLITHARAPARAMBIL HOUSE, TOLL GATE ROAD, VADUTHALA S.O.ERNAKULAM DISTRICT-682 023. 2K.S.VISHNU, AGED 15 YEARS S/O SAJU,MINOR, REPRESENTED BY HIS MOTHER C.V.SAJITHA, W/O SAJU, AGED 42,RESIDING AT 70/621, CHELLITHARAPARAMBIL HOUSE, TOLL GATE ROAD, VADUTHALA S.O.ERNAKULAM DISTRICT-682 023. 3VISMAYA, AGED 12 YEARS D/O SAJU,MINOR, REPRESENTED BY HIS MOTHER C.V.SAJITHA, W/O SAJU, AGED 42,RESIDING AT 70/621, CHELLITHARAPARAMBIL HOUSE, TOLL GATE ROAD, VADUTHALA S.O.ERNAKULAM DISTRICT-682 023. 4SANTHA, AGED 69 YEARS W/O SUKUMARAN, RESIDING AT KAKKATHARA HOUSE, THOTTATHIPARAMBU ROAD, MARADU P.O. ERNAKULAM-682 304. ``` ``` BY ADVS. MATHEWS K.PHILIP SMT.T.MANASY SMT.MINISHA K DAS ``` **MACA 3953/19 & CO 219/19** ..4.. ## **`RESPONDENT/APPELLANT/3RD RESPONDENT:`** ``` RELIANCE GENERAL INSURANCE COMPANY LIMITED VISHNU BUILDING, K.P.VALLON ROAD, KADAVANTHRA ERNAKULAM-682 020, REPRESENTED BY ITS LEGAL CLAIMS MANAGER, RELIANCE GENERAL INSURANCE COMPANY LIMITED , ERNAKULAM BY ADV SRI.R.AJITH KUMAR (128/84) ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 03.04.2023, ALONG WITH MACA.3953/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA 3953/19 & CO 219/19** ..5.. ## **JUDGMENT** ## **`[MACA No.3953/2019,CO No.219/2019]`** This Appeal and Cross Objection emanate from the Final Award of the Motor Accidents Claims Tribunal, Ernakulam (‘Tribunal’ for short), in OP(MV)No.2416/2017. 2. The afore Original Petition was filed by the legal heirs of Saju, who was unfortunately killed in a road accident on 30.05.2017, when the bicycle he was riding was rammed into by the offending motorcycle, driven in a rash and negligent manner. Saju sustained very serious injuries and later succumbed to it; whereupon, the Cross Objectors filed the afore Original Petition, seeking compensation of an amount of Rs.28,98,500/- limited to Rs.25,00,000/-, and which has been allowed to a sum of Rs.19,96,424/-. 3. The appellant - Insurance Company, which insured the offending vehicle, singularly assails the compensation under the head ‘Pain and Suffering’, as being impermissible; while the Cross Objectors seek that the compensation awarded to them for ‘Loss of Dependency’ be enhanced, reckoning the notional income of the deceased to be Rs.15,000/- per month, rather than Rs.11,000/-, as has been found by the learned Tribunal. **MACA 3953/19 & CO 219/19** **==> picture [20 x 9] intentionally omitted <==** 4. I have heard Sri.Tapas Varma – learned Standing Counsel for the Insurance Company and Smt.Manasy T. - learned counsel for the Cross Objectors. 5. I have considered the afore submissions on the touchstone of the evidence and documents on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that they can be acted upon by this Court without dispute. 6. As the afore narrative would show, the controversy between the parties is as regards the quantum of compensation awarded by the Tribunal under the two heads, namely ‘Pain and Suffering’ and ‘Loss of Dependency’. 7. Sri.Tapas Varma – learned Standing Counsel for the Insurance Company, vehemently argues that _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur**_ [(2021) 11 SCC 780] declares the law affirmatively that, once compensation for ‘Loss of Dependency’ has been adequately awarded, no amounts under the head ‘Pain and Suffering’ could have been granted because, it subsumes into the former. He thus prayed that said head of compensation be deleted. **MACA 3953/19 & CO 219/19** **==> picture [20 x 9] intentionally omitted <==** 8. _Per Contra,_ Smt.Manasy.T. - learned counsel for the Cross Objectors, argued that the compensation for ‘Loss of Dependency’ has been fixed low by the Tribunal because, the income of the deceased has been notionally reckoned to be Rs.11,000/-, as per the judgment of the Hon’ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ [(2011) 13 SCC 236], even though there is evidence to establish that he was a Professional Driver, earning Rs.15,000/- per month. 9. When I consider the afore rival contentions, on the question of compensation for ‘Pain and Suffering’, I must say that the contentions of Sri.Tapas Varma are on firm footing because, **Satwinder Kaur** (supra) normally proscribes any compensation for ‘Pain and Suffering’ in the case of death of the injured, when compensation for ‘Loss of Dependency’ has been granted. However, this is a case where the deceased was in hospital for 71 days prior to his unfortunate death; and obviously, the strain and agony suffered by his wife and children cannot be understated. Even though, no amount can be granted for the ‘Pain and Suffering’ of the deceased _per se,_ the agony and the trauma undergone by his family during the period when he was under treatment will have to be reckoned **MACA 3953/19 & CO 219/19** ..8.. and adequately compensated. I am, therefore, of the firm view that, even though the compensation now awarded by the Tribunal will require to be scaled down, it cannot be deleted fully. I, therefore, propose an amount of Rs.75,000/- under the head ‘Pain and Suffering’, treating it as for the family of the deceased for enduring the agony and the trauma during the period when he was hospitalised. 10. Coming to the question of compensation for ‘Loss of Dependency’, I cannot find favour with Smt.Manasy.T. because, when the stated avocation or income of the deceased has not been able to be proved, the learned Tribunal could have only reckoned the notional income of the deceased; and in such endeavour, to be guided by **Ramachandrappa** (supra). The learned Tribunal has done so correctly and I find no reason to interfere with it, particularly when 25% future prospects has also been added to the notional income, as per _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)] . In the afore circumstances, this appeal and Cross Objection are disposed of in the following manner: **MACA 3953/19 & CO 219/19** ..9.. a. **MACA No.3953/2019:** This appeal is allowed in part and the compensation for ‘Pain and Suffering’ is reduced to Rs.75,000/-, from Rs.1,70,000/- awarded by the Tribunal. In all other heads, the compensation is confirmed. b. **CO No.219/2019** is dismissed; however, without making no order as to costs. Consequently, the appellant will be entitled to recover the compensation, as modified by this Court from the Insurance Company, along with interest at the rate of 8% per annum, as ordered by the Tribunal, from the date of claim until it is realised. The appellant will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. Sd/- ## **DEVAN RAMACHANDRAN, JUDGE** ACR