Reliance General Insurance Company Limited v. Dhanya and others

1 M.A.C.A.No.2123 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 11[TH] DAY OF AUGUST 2021 / 20TH SRAVANA, 1943** ## **MACA NO. 2123 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OPMV 677/2018 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD** ## **APPELLANT/S:** RELIANCE GENERAL INSURANCE COMPANY LIMITED 2ND FLOOR, CITADEL 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, KOCHI - 682020. BY ADVS. MATHEWS JACOB (SR.) P.JACOB MATHEW ## **RESPONDENT/S:** 1 DHANYA, AGED 35 YEARS, W/O. LATE KAMALAHASAN, RESIDING AT MELEPURAKKAL HOUSE, ADAKKAPUTHUR P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT - 679503. 2 ADITHYAN, AGED 15 YEARS, (MINOR), S/O. LATE KAMALAHASAN, RESIDING AT MELEPURAKKAL HOUSE, ADAKKAPUTHUR P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT - 679503., REPRESENTED BY HIS MOTHER 1ST RESPONDENT. 3 KAMALAKSHI, AGED 64 YEARS, M/O. LATE KAMALAHASAN, RESIDING AT MELEPURAKKAL HOUSE, ADAKKAPUTHUR P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT - 679503., 4 VASUDEVAN, AGED 71 YEARS F/O. LATE KAMALAHASAN, RESIDING AT MELEPURAKKAL HOUSE, ADAKKAPUTHUR P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT - 679503., **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A.No.2123 of 2021 ## **C.S.DIAS, J.** ---------------------------------------- ## **M.A.C.A.No.2123 of 2021** **---------------------------------------Dated this the 11[th] day of August, 2021** ## **JUDGMENT** The appellant - insurer was the third respondent in OP(MV) No.677/2018 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents in the appeal were the petitioners before the Tribunal. The appellant has not impleaded the respondents 1 and 2 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 section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one 3 M.A.C.A.No.2123 of 2021 Kamalahasan (deceased) – who was the husband of the first petitioner, the father of the second petitioner and the son of the petitioners 3 and 4. The petitioners had averred in the claim petition that, on 21.5.2014 the first respondent drove the lorry bearing registration No.PY03/A 893 in a rash and negligent manner hit the motorcycle bearing registration No.KL-51/B-5409 driven by the deceased. The deceased sustained fatal injuries and lost his life in Moulana Hospital, Perinthalmanna. The deceased was a Carpenter by profession and earning a monthly income of Rs.12,000/-. The petitioners were the dependents of the deceased. The lorry belonged to the second respondent and was insured with the third respondent. Hence, the petitioners claimed a total compensation of Rs.25,49,000/- from the respondents. 3. The respondents entered appearance and filed independent written statements. The first respondent disputed the age, income and occupation of the 4 ## M.A.C.A.No.2123 of 2021 deceased. However, the first respondent admitted that he was a driver of the lorry. According to him, the accident occurred on account of the negligence of the deceased. The second respondent also reiterated the very same contentions as that raised by the first respondent. Nevertheless, the second respondent stated that the lorry had a valid insurance coverage with the third respondent. Therefore, the third respondent is liable to indemnify the second respondent of his liability, if any. 4. The third respondent - insurer filed a writtenstatement stating that the deceased was responsible for the accident. However, the third respondent admitted that the lorry had a valid insurance coverage. 5. The petitioners produced and marked Exts A1 to A7 in evidence. The respondents did not let in any evidence. 5 ## M.A.C.A.No.2123 of 2021 6. The Tribunal by the impugned award allowed the claim petition in part by directing the third respondent to pay the petitioners an amount of Rs.20,14,000/- with interest and costs. 7. Aggrieved by the impugned award, the third respondent – insurer is in appeal. 8. Heard Sri.Mathews Jacob, the learned Senior Counsel appearing for the appellant/third respondent – insurer. 9. The principal grounds of challenge in the memorandum of appeal are that (i) the notional income fixed by the Tribunal is on the higher side (ii) the Tribunal ought not to have granted compensation towards loss of love and affection and loss of consortium and (iii) the rate of interest awarded by the Tribunal at 8% is on the higher side. 10. On a perusal of the materials available on record and the impugned award, it is seen that as per 6 ## M.A.C.A.No.2123 of 2021 Ext A5 charge-sheet the accident occurred solely on account of the negligence of the first respondent – the driver of the lorry. Admittedly, the second respondent before the Tribunal was the owner and the third respondent (appellant) was the insurer of the lorry. Therefore, it is the third respondent who is to indemnify the liability of the second respondent to pay the compensation amount. 11. The respondents/petitioners had specifically stated in the claim petition that the deceased was a Carpenter by profession and earning a monthly income of Rs.12,000/- per month. The Tribunal taking into account the fact that the accident occurred in the year 2014 and the deceased was a Carpenter fixed the notional income of the deceased at Rs.10,000/- per month. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** 7 ## M.A.C.A.No.2123 of 2021 **[(2011) 13 SCC 236]** the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Going by the ratio in **Ramachandrappa** (supra), the notional income fixed by the Tribunal is perfectly reasonable and just. I do not find any error in the notional income fixed by the Tribunal. 14. It is proved by Ext A6 relationship certificate that the respondents/petitioners were the dependents of the deceased. 15. The Tribunal following the ratio in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] and Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802]** took the notional income of the deceased at Rs.10,000/- per month, fixed the multiplier at 15 and deducted one-fourth of the compensation for loss of dependency towards personal living expenses of the deceased and fixed the 8 ## M.A.C.A.No.2123 of 2021 compensation for loss of dependency at Rs.18,90,000/-. 16. On an appreciation of the materials on record and the impugned award, I find that the Tribunal has rightly arrived at the compensation for loss of dependency. 17. Now coming to the contention that the Tribunal has awarded excessive amount of compensation under the head loss of love and affection at Rs.50,000/-. 18. In fact the Tribunal has not awarded any compensation under the head loss of consortium to respondents, which they are entitled to at Rs.40,000/each. Thus, if compensation under the head loss of consortium is awarded, it would amount to much more than the amount awarded under the head 'loss of love and affection'. 19. The last contention is that the rate of interest awarded by the Tribunal at 8% is on the higher side. The Hon'ble Supreme Court in **MCD v. Uphaar Tragedy** 9 ## M.A.C.A.No.2123 of 2021 **Victims Association [(2011) 14 SCC 481]** and **Kishan Gopal and another vs. Lala and others** **[(2014) 1 SCC 244]** has awarded interest @ 9% per annum in the cases of motor accident. Therefore, the said contention is also unsustainable in law. 20. I do not find any error or illegality in the threadbare appreciation of the facts by the Tribunal, and the fixation of the notional income of the deceased and compensation awarded under the different heads. 21. 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. 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 10 ## M.A.C.A.No.2123 of 2021 practice. 22. It is to be borne in mind that the accident occurred on 21.5.2014. It is more than seven years since the respondents/petitioners have been knocking at the doors of the Courts seeking for compensation on account of the death of their breadwinner. Moreover, it is trite law that the Tribunals are permitted to do some guess work and also exercise their discretion to fix reasonable and just compensation, for which there cannot be any strait jacket formula based on mathematical exactitude. I find that the Tribunal has judicially exercised its powers based on the provisions in the Motor Vehicles Act, 1988 and the authoritative precedents of the Honourable Supreme Court. 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** 11 M.A.C.A.No.2123 of 2021 **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/11.8.2021