Reliance General Insurance Company Limited v. Mangala, Megha and Manaswi and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 MACA NO. 4191 OF 2017 ``` ``` AGAINST THE AWARD DATED 18.07.2017 IN OP(MV)NO.658 OF 2013 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, ALAPPUZHA ``` ## `APPELLANT/3RD RESPONDENT:` ``` RELIANCE GENERAL INSURANCE COMPANY LIMITED, KOCHI NOW REPRESENTED BY ITS LEGAL-CLAIMS MANAGER, REGIONAL OFFICE,KOCHI-682020. BY ADVS.SRI.MATHEWS JACOB (SENIOR) SRI.P.JACOB MATHEW SMT.PREETHY R. NAIR ``` ## `RESPONDENTS/ ADDITIONAL PETITIONERS 2 TO 4:` - `1 MANGALA, W/O.LATE REGHUVARAN,NADUVILAPPARAMBIL,CHARAMANGALAM, MAYITHARA.PO,CHERTHALA,PIN-688539.` - `2 MEGHA, D/O LATE REGHUVARAN, NADUVILAPPARAMBIL,CHARAMANGALAM,MAYITHARA.P.O,CHERTHALA, PIN-688539.` - `3 MANASWI, D/O.LATE REGHUVARAN, NADUVILAPPARAMBIL,CHARAMANGALAM,MAYITHARA.P.O,CHERTHALA, PIN-688539. BY ADVS.SRI.GEORGE VARGHESE(PERUMPILLIKUTTIYIL) SRI.P.J.JOE PAUL` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON ``` ``` 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No. 4191 of 2017 -:2:- ## **JUDGMENT** Dated this the 16[th] day of February, 2024 The appeal on hand is originated from an award passed by Additional Motor Accidents Claims Tribunal-II, Alappuzha (for short ‘the Tribunal’) on 18.07.2017 in OP(MV) No.658/2013. The appellant is the 3[rd] respondent before the Tribunal who is the insurer of the offending vehicle involved in the motor accident. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as respondent No.3 and petitioners in accordance with their status in the Original Petition. 3. Challenge is raised mainly against the quantum of compensation stood awarded by the Tribunal in favour of the petitioners. Originally petition was filed seeking compensation for the personal injuries sustained by the victim in the motor accident allegedly occurred at 9 a.m. on 25.03.2013 in NH-47 at Kanichukulangara junction due to the rash and negligent driving of a lorry bearing Registration No.KL-07/BD-4436 by its driver MACA No. 4191 of 2017 -:3:- who was arrayed in the Original Petition as the 1[st] respondent. Immediately after the motor accident, the injured was taken to K.V.M. Hospital, Cherthala and after availing first aid therefrom was transported to Medical College Hospital, Kottayam. Thereafter he was shifted to Taluk Hospital, Cherthala. His health condition deteriorated and ultimately he died on 31.07.2013. He was aged 60 years at the relevant time of his death and was getting `8,000/- monthly from his occupation as a tailor. He was survived by his wife and two daughters respectively aged as 25 and 22 years. 4. After the death of the victim, the Original Petition was amended as a death claim. The legal heirs got themselves impleaded into the Original Petition as additional petitioners 2 to 4 by an order passed by the Tribunal on 16.03.2016 in I.A.No.3030/2013. 5. All respondents were issued with notice from the Tribunal. Respondents 1 and 2, though served with notice did not turn up to contest the Original Petition and therefore, were declared as _ex-parte_ . 3[rd] respondent served with notice entered MACA No. 4191 of 2017 -:4:- appearance and filed a written statement admitting issuance of a certificate of insurance for the lorry bearing Registration No.KL07/BD-4436 as on date of the motor accident. It was contended that the 1[st] respondent was not holding a driving licence to drive the lorry at the relevant time and the 2[nd] respondent by permitting the 1[st] respondent to drive the vehicle has committed violation of a policy condition. It was further contended that the motor accident was occurred due to negligence of Mr.Reghuvaran, the victim himself and therefore, the 3[rd] respondent is not liable to indemnify the insured. The quantum claimed as compensation was also disputed for its exorbitance. 6. Exts.A1 to A12 were marked in evidence by the petitioner. On its basis, the Tribunal found the driver of the lorry arrayed as the 1[st] respondent in the Original Petition responsible for causing the motor accident. The death of the victim having been established from the documentary evidence, the Tribunal found the petitioners, who are the legal representatives of the victim, entitled to get compensation from all respondents jointly and severally. A sum of `16,63,427/- was arrived at as the MACA No. 4191 of 2017 -:5:- total compensation payable to the petitioners and the 3[rd] respondent was directed to deposit the same with interest at the rate of 9% per annum from the date of filing of the Original Petition till the end of the year 2016 and thereafter at the rate of 7% per annum till realisation and proportionate costs. 7. The learned Senior Counsel for the insurer canvassed for a modification of the compensation stood awarded, contending it as excessive. It is pointed out by the learned counsel that the monthly income was fixed by the Tribunal as `8,000/- based on the claim of the petitioners themselves. According to him petitioners failed to adduce any evidence to establish the occupation of the deceased and his monthly income and in that context the Tribunal is not justified in fixing `8,000/as the monthly income. Accordingly, modification of the monthly income by way of interference is sought. According to him, the Tribunal is also unjustified in awarding compensation under the conventional heads without following the dictum of the Constitution Bench of the Apex Court in **National Insurance** MACA No. 4191 of 2017 ## -:6:- ## **Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)].** 8. The learned counsel for the petitioners urged for fixing a sum proportionate to that fixed by the Apex Court in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** . It was urged further to discard the compensation stood awarded by the Tribunal under the heads pain and sufferings and loss of love and affection. **United India Insurance Company Limited V.Satinder Kaur alias Satwinder Kaur and Others [2021** **(11) SCC 780]** was relied on to rest the contention that the petitioners have no entitlement to get those. The learned counsel thus seeks for modification of the impugned award in that respect. 9. The learned counsel for the petitioners urged that the petitioners being the spouse and the children of the deceased, each of them are entitled to get `40,000/- as compensation towards loss of consortium. The learned counsel urged furthermore that the Tribunal failed to award `15,000/- as MACA No. 4191 of 2017 -:7:- compensation towards funeral expenses and awarded an excess sum as compensation towards loss of estate. 10. Though the learned counsel for petitioners sought for enhancement of the monthly income from `8,000/-, that cannot be considered in the case on hand for the reason that the petitioners have not preferred a cross objection challenging the same. They cannot seek for a hike in the monthly income in an appeal filed by the insurer raising challenge against it’s excessiveness. The motor accident was occurred in the year 2013 and therefore this Court finds it reasonable to maintain `8,000/- fixed by the Tribunal as the monthly income notionally. 11. The learned counsel canvassed on the basis of Ext.A8, copy of the SSLC certificate wherein the date of birth of the deceased was shown as 01.04.1953 that the deceased was aged only 60 years at the relevant time of his death. When the contention is considered with reference to the date of birth, this Court is convinced that the deceased was aged 60 years at the relevant time when he lost his life in the motor accident. His death being untimely following the motor accident, the Tribunal MACA No. 4191 of 2017 -:8:- ought to have considered loss of his future prospects on account of that. He being aged 60 years, 10% hike can be considered for the monthly income fixed as `8,000/- and thus `8,800/- (`8,000/- + 10% of `8,000/-) is arrived at. Adoption by the Tribunal of 9 as the multiplier and deduction of 1/3[rd] from the monthly income in consideration of personal expenditure, being correct are maintained. When compensation for loss of dependency is calculated afresh with the factors modified, a sum of `6,33,600/- (`8,800/- x 12 x 9 x 2/3) is arrived at. `5,76,072/- stood awarded by the Tribunal needs to be adjusted against the above sum and therefore, petitioners will get `57,528/- as additional compensation. As rightly pointed out by the learned counsel, the Tribunal failed to award the compensation which the petitioners are entitled to receive as per **Pranay Sethi** supra. Petitioners having not been awarded compensation towards funeral expenses, `15,000/- is awarded. Petitioners having been awarded only `1,00,000/- as compensation towards loss of consortium, `20,000/(`1,20,000/- (`40,000/- x 3) – `1,00,000/-) more is awarded to MACA No. 4191 of 2017 -:9:- make it in tune with their entitlement for the same. `15,000/- is also awarded as compensation towards loss of estate. `1,00,000/- and `2,00,000/- stood awarded by the Tribunal as compensation towards pain and sufferings and loss of love and affection are discarded. 12. In the absence of challenge raised against, compensation stood awarded by the Tribunal towards transportation expenses, extra nourishment, damages to clothing, bystander expenses and medical expenses, those are maintained. Compensation stood awarded by the Tribunal towards loss of earnings is also discarded for the reason that a multiplier appropriate to the age of the victim as on date of the motor accident is taken for calculation of compensation for loss of dependency. 13. Thus in the calculation with the factors modified in the above manner, petitioners will get only `14,21,955/(`10,000/- + `15,000/- + `1000/- + `6,02,355/- + `10,000/- + `6,33,600/- + `1,20,000/- + `15,000/- + 15,000/-) (Rupees Fourteen lakh twenty one thousand nine hundred and fifty five MACA No. 4191 of 2017 -:10:- only) as compensation, which would replace `16,63,427/- stood awarded by the Tribunal. Interest rate is also modified as 8%. Therefore, the modified compensation as above will carry interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation and proportionate costs. 3[rd] respondent shall pay the compensation with interest accrued on it at the rate re-fixed and proportionate costs, within a period of two months from the date on which a certified copy of this judgment is received. Compensation shall be disbursed by the Tribunal in equal proportion in favour of the petitioners having due regard to the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. Learned Senior Counsel for the 3[rd] respondent submitted that 70% of the award amount is already deposited by them. The Tribunal on being convinced of the submission made, shall adjust the same in the sum payable. Sd/- **MARY JOSEPH JUDGE** MJL