Royal Sundaram Alliance Insurance Co. Ltd. v. Thressiamma; and Thressiamma v. Royal Sundaram Alliance Insurance Co. Ltd.

1 MACA Nos 843 of 3276 of 2014 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** ## **MACA.No.843 OF 2014** **AGAINST THE AWARD IN OPMV 226/2010 DATED 04-12-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/S:** **ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED OTTAPALAM, NOW REPRESENTED BY ITS MANAGER, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600002.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/S:** **THRESSIAMMA** **W/O.LATE JACOB, KOLENCHERY HOUSE, KODUNGA DESOM, VELLIKULANGARA VILLAGE, THRISSUR DISTRICT, PIN680320.** **R1 BY ADV. SRI.SHEJI P.ABRAHAM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-12-2020, ALONG WITH MACA.3276/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA Nos 843 of 3276 of 2014 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** ## **MACA.No.3276 OF 2014** **AGAINST THE AWARD IN OPMV 226/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/S:** **A THRESSIAMMA AGED 59 YEARS W/O.LATE JACOB, KOLENCHERY HOUSE, KODUNGA DESOM,VELLIKULANGARA VILLAGE, THRISSUR DISTRICT. (MOTHER OF DECEASED).** **BY ADV. SRI.SHEJI P.ABRAHAM** ## **RESPONDENT/S:** |**1**|**RENJITH**| |---|---| ||**AGED 28 YEARS**| ||**S/O.KOCHUMON, CHITTILAPPILLY HOUSE,**| ||**OLLUKKARA,SNEHAVEDHI LANE, OLLUKKARA VILLAGE,**| ||**MANNUTHY,THRISSUR - 680001.(DRIVER OF KL - 8 AN**| ||**9506 TIPPER LORRY).**| |**2**|**JAISON JACOB**| ||**AGE NOT KNOWN, S/O.JACOB, PULLOOKKARAN**| ||**HOUSE,PALAKKAL P.O., THRISSUR - 680001.(OWNER OF KL**| ||**- 8 AN 9506 TIPPER LORRY).**| |**3**|**ROYAL SUNDARAM GENERAL INSURANCE COMPANY LTD**| ||**BRANCH OFFICE, OTTAPALAM.POLICY NO.VOC**| ||**0041621000100 VALID FROM 2.1.2010 TO 1.1.2011 - 680**| ||**101.**| ||**R3 BY ADV. SRI.MATHEWS JACOB (SR.)**| ||**R3 BY ADV. SRI.P.JACOB MATHEW**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-12-2020, ALONG WITH MACA.843/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA Nos 843 of 3276 of 2014 **C.S.DIAS, J. ====================== MACA Nos 843 and 3276 of 2014 ====================== Dated this the 9[th ] day of December, 2020.** ## **COMMON JUDGMENT** The appellant in MACA No.3276/2014 was the petitioner and the appellant in MACA No.843/2014 was the third respondent in OP(MV) 226/2010 of the Motor Accidents Claims Tribunal, Ottapalam. The appellants are both aggrieved by the award dated 4.12.2013 passed by the Tribunal. As the appeals arise out of the same award, passed in connection with the death of one Abhilash in an accident on 4.1.2010, they were consolidated and jointly heard and are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of her son Abhilash. 3. The case of the petitioner, in brief, in the claim 4 MACA Nos 843 of 3276 of 2014 petition is that, on 4.1.2010 while Abhilash was riding a motor cycle bearing registration No.KL 45/A 7548 on the Thankamani Slope near Koorkenchery, a tipper lorry (offending vehicle) bearing registration No.KL-8/AN 9506, driven by the first respondent in a rash and negligent manner, hit the motor cycle. Abhilash sustained fatal injuries and expired on the spot. The second respondent was the owner and the third respondent was the insurer of the offending vehicle. The petitioner claimed an amount of Rs.20,00,000/- under various heads as compensation. 4. The respondents 1 and 2 were set ex parte. 5. The third respondent filed a written-statement, denying all the allegations in the claim petition. The third respondent, inter alia, contended that the accident occurred solely due to the rash and negligent driving of the motor cycle by the deceased. The amounts claimed by the petitioner under various heads were exorbitant and excessive. The first respondent was not having a valid driving licence. Hence, the the third respondent was not liable to indemnify the second respondent of any liability. 6. The petitioner was examined as PW1 and Exts A1 5 MACA Nos 843 of 3276 of 2014 to A24 were marked through her. 7. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the third respondent to pay an amount of Rs.10,48,500/- as compensation with interest at the rate of 9% per annum from the date of petition till the date of realisation with proportionate cost. 8. The comparative table of compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- |SI<br>No|Head of claim|Amount claimed<br>(in rupees)|Amount awarded by<br>the Tribunal(in<br>rupees)| |---|---|---|---| |1|Loss of earnings (Total)|30,000|Nil| |2|Loss of earnings<br>(Partial)|--|--| |3|Medical<br>and<br>miscellaneous expenses|35,000|Nil| |4|Future treatment|--|--| |5|Bystander expenses|10,000|Nil| |6|Transportation expenses|15,000|5,000| |7|Extra nourishment|15,000|Nil| |8|Damage to clothing etc|10,000|500| |9|Pain and sufferings|35,000|Nil| |10|Loss of dependency|1,000,000|918000| |11|Loss of consortium|200,000|Nil| |12|Loss of love and<br>affection|200,000|100,000| |13|Loss of estate|300,000|Nil| |14|Loss/reduction<br>in|--|--| 6 MACA Nos 843 of 3276 of 2014 ||earning capacity||| |---|---|---|---| |15|Loss of amenities and<br>conveniences etc|--|--| |16|Funeral expenses|50,000|25,000| ||Total|--|Rs.10,48,500| ||Claim limited to|20,00,000|| 9. The petitioner being dissatisfied with the quantum of compensation awarded and the third respondent being aggrieved by the compensation awarded by the Tribunal are before this Court in the independent appeals. 10. Heard the learned counsel appearing for the petitioner/appellant in MACA 3276/2014 and the learned counsel appearing for the third respondent/appellant in MACA 843/2014. 11. The learned counsel appearing for the respective parties submitted that both parties were only aggrieved by fixation of notional income and the amounts awarded by the Tribunal under the various heads. 12. Thus, the sole question that arises for consideration in the appeals is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 13. The facts that the petitioner was the sole legal 7 MACA Nos 843 of 3276 of 2014 representative of the deceased; that the deceased was aged 29 years; that he had completed his diploma in Information Technology Course and that as on 11.2.2010 the deceased was employed as Territory Manager in Emcure Pharmaceuticals Ltd are not disputed by both sides. 14. The Tribunal after considering the pleadings and materials on record, fixed the notional income of the deceased at Rs.6,000/- per month. 15. The petitioner got herself examined as PW1. She had deposed that the deceased was working as a Medical Representative in Emcure Pharmaceuticals Ltd, as evidenced by Ext A10 salary certificate, issued by the employer of the deceased, and the deceased was drawing a monthly salary of Rs.11,000/- plus incentives totaling to an amount of Rs.13,000/- per month, although she had averred in the claim petition that the deceased was drawing an amount of Rs.15,000/- per month. 16. On an appreciation of Ext A10, it is seen that the Employer of the deceased had issued Ext A10 certifying that the deceased was working with them from 16.11.2009 to 4.1.2010 as the Territory Manager at Trichur, and that he 8 MACA Nos 843 of 3276 of 2014 was drawing a gross monthly salary of Rs.11,000/- and had a deduction of Rs.588/- per month towards Provident Fund Contribution. 17. In light of the uncontroverted oral testimony of PW1 corroborated with Ext A10 certificate issued by the Employer of the deceased, I have no hesitation to hold that the deceased was a permanent employee of the Emcure Pharmaceuticals Ltd, drawing a net salary of Rs.10,412/- per month. 18. It is by now trite that the proceedings before the Tribunal are summary in nature and the strict rules of the Evidence Act need not be followed in accepting and marking documents in evidence, and that the cases have to be decided on preponderance of probability and not beyond reasonable doubt. 19. Therefore, the finding of the Tribunal, despite the uncontroverted testimony of PW1 and Ext A10 being accepted in evidence, that the deceased had only a notional income of Rs.6,000/- per month is erroneous and unsustainable in law. Thus, I set aside the said finding and hold that the deceased was drawing a monthly net salary of 9 MACA Nos 843 of 3276 of 2014 Rs.10,412/-, as on the date of his death. Accordingly, the petitioner would be entitled to consequential enhancement of compensation. ## **Funeral expenses** 20. It is seen that the Tribunal has awarded an amount of Rs.25,000/- as funeral expenses. Going by the law laid down by the Supreme Court in **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and Others [2020 (3) KHC 760 (SC)]** and a whole line of precedents on the point, the maximum compensation that can be awarded is only Rs.15,000/- under the said head. Therefore, I scale down the amount from Rs.25,000/- to Rs.15,000/-. ## **Loss of estate** 21. On a perusal of the impugned award, it is seen that the Tribunal has failed to award any amount under the head 'loss of estate'. Again going by the law laid down in **Satinder Kaur @ Satwinder Kaur** (supra), the petitioner is entitled for an amount of Rs.15,000/- under the said head, which I do award. ## **Love and affection** 22. The Tribunal in the impugned award has awarded 10 MACA Nos 843 of 3276 of 2014 an amount of Rs. 1,00,000/- under the head 'love and affection', but has failed to award any amount under head 'loss of consortium'. It has been categorically laid down in **Satinder Kaur @ Satwinder Kaur** (supra) and a plethora of precedents that only loss of consortium can be awarded and no amount can be awarded under another head 'loss of love and affection', which will amount to duplication. In the said circumstances, I set aside the compensation of Rs.1,00,000/- awarded under the head 'loss of love and affection' and award an amount of Rs.40,000/- towards loss of filial consortium. ## **Bystander expenses and loss of pain and sufferings.** 23. The deceased had lost his life on the ill-fated day the accident occurred. Hence, I award an amount of Rs.1000/- towards bystander expenses. Likewise, no amount was awarded under the head 'pain and sufferings'. It is the fact that the deceased expired on the same day, but still he is entitled to compensation under the said head. Accordingly, I award an amount of Rs.5,000/- under the head 'pain and sufferings'. 11 MACA Nos 843 of 3276 of 2014 ## **Loss of dependency** 24. Taking into consideration the fact that the deceased was aged 29 years at the time of his death; that he was permanently employed; that he was a bachelor and that the petitioner was the sole legal representative/heir, I hold that 50% of the compensation under the above head has to be deducted, but the petitioner is entitled to 50% towards future prospects, which was not awarded by the Tribunal, as laid down in **Sarla Verma v. Delhi Transport Corporation** **[(2009) 6 SCC 121], National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** and **General Manager, Kerala S.R.T.C vs Susamma Thomas [(1994) 2 SCC 176].** Accordingly, I recalculate and enhance the compensation under the head loss of dependency with future prospects from Rs.9,18,000/- to Rs.15, 93,036/-. 25. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 26. Therefore, on an overall re-appreciation of the pleadings and materials on record and the law laid by the Hon'ble Supreme Court in the aforecited decision, I am of 12 MACA Nos 843 of 3276 of 2014 the considered opinion that the petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |SI<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded by<br>the Tribunal(in<br>rupees)|Amounts<br>modified and<br>re calculated<br>by this Court| |---|---|---|---|---| |1|Loss of earnings<br>(Total)|30,000|Nil|Nil| |2|Loss of earnings<br>(Partial)|--|--|Nil| |3|Medical<br>and<br>miscellaneous<br>expenses|35,000|Nil|Nil| |4|Future treatment|--|--|Nil| |5|Bystander expenses|10,000|Nil|1,000| |6|Transportation<br>expenses|15,000|5,000|5,000| |7|Extra nourishment|15,000|Nil|Nil| |8|Damage to clothing<br>etc|10,000|500|500| |9|Pain and sufferings|35,000|Nil|5,000| |10|Loss of dependency|1,000,000|918000|15,93,036| |11|Loss of consortium|200,000|Nil|40,000| |12|Loss of love and<br>affection|200,000|100,000|Nil| |13|Loss of estate|300,000|Nil|15,000| |14|Loss/reduction<br>in<br>earning capacity|--|--|Nil| |15|Loss of amenities<br>and conveniences<br>etc|--|--|Nil| |16|Funeral expenses|50,000|25,000|15,000| ||Total|--|Rs.10,48,500|Rs.16,74,536| ||Claim limited to|20,00,000||| In the result, MACA Nos 843/2014 and 3276/2014 are disposed of by directing the third respondent in MACA 3276 13 MACA Nos 843 of 3276 of 2014 of 2014/appellant in MACA 843 of 2014 to pay an enhanced amount of Rs.6,26,036/- (Rupees Six Lakh Twenty Six Thousand Thirty Six only) as compensation to the petitioner in OP(MV) 226/2010 with interest @ of 9% p.a on the enhanced amount, from the date of petition till the date of realisation with proportionate costs, excluding the period of delay of 268 days in filing the appeal. The third respondent shall satisfy the entire compensation awarded in the appeal to the petitioner with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability, if any, of the petitioner. The disbursement of the compensation to the petitioner shall be made by the Tribunal, in accordance with law. **Sd/-** **C.S.DIAS JUDGE** SKS/9.12.2020