Royal Sundaram Alliance Insurance Company Ltd. v. Valsala Kumari; Advaith Krishnan (Minor) represented by next friend Valsala Kumari; Saju Sebastian (Driver cum Owner) and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 7[TH] DAY OF MARCH 2022 / 16TH PHALGUNA, 1943 ``` ``` MACA NO. 678 OF 2022 ``` ``` AGAINST THE AWARD DATED 27.03.2021 IN OP(MV)NO.84/2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA ``` ## `APPELLANT/2ND RESPONDENT:` ``` ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD., REPRESENTED BY ITS MANAGER, SUNDARAM TOWER, 46 WHITES ROAD, ROYAL PETTAH, CHENNAI. ``` ``` BY ADV A.SREEKALA ``` ## `RESPONDENTS/ PETITIONER 1 & 2 & RESPONDENT NO.1` ``` 1VALSALA KUMARI PADMA VILASAM, MUTHUKULAM SOUTH P O, WEST OF KARUNAMUTHAN TEMPLE, MUTHUKULAM-690506 ``` ``` 2ADVAITH KRISHNAN (MINOR), REPRESENTED BY HIS NEXT FRIEND VALSALA KUMARI, PADMA VILASAM, MUTHUKULAM SOUTH P O, WEST OF KARUNAMUTHAN TEMPLE, MUTHUKULAM-690506. 3SAJU SEBASTIAN (DRIVER CUM OWNER), MADAN HOUSE, MANJAPRA P O, MAJAPRA, ERNAKULAM-683581. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.678/2022 -:2:- Dated this the 7[th] day of March,2022 ## **J U D G M E N T** The second respondent-insurer in O.P (MV)No.84/2017 on the file of the Motor Accidents Claims Tribunal, Alappuzha, is the appellant. The petitioners and the first respondent in the claim petition are the respondents in the appeal. 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 'Akhil Krishnan'(deceased) – the son the first petitioner and the brother of the second petitioner. They have pleaded in the claim petition that, on 21.09.2016, while the deceased was riding a motorcycle bearing registration No.KL-29/K-3896 along the Alappuzha-Kalavoor National Highway, a Omni van M.A.C.A.No.678/2022 -:3:- bearing registration No.KL-07/CA-TEMP-3121(van), driven by the first respondent in a negligent manner, hit the motorcycle of the deceased. The deceased had suffered fatal injuries and lost his life at the General Hospital, Alappuzha. The deceased was a first year Mechanical Engineering Student in Sri. Vellappally Natesan College of Engineering. The petitioners were the dependants of the deceased. The van was owned by the first respondent and insured with the second respondent. Hence, the petitioners claimed a compensation of Rs.48,71,000/- from the respondents, which claim was limited to Rs.45,00,000/-. 3. The first respondent did not contest the proceeding and was set ex parte. 4. The second respondent had filed a written statement, admitting that the van had a valid insurance coverage. The second respondent disputed the age of the deceased. It was also contended that the M.A.C.A.No.678/2022 -:4:- accident occurred due to the negligence of the deceased. Hence, the second respondent prayed for dismissal of the claim petition. 5. The petitioners had produced and marked Exts.A1 to A13 in evidence. The respondents did not let in any evidence. 6. The Tribunal allowed the claim petition, in part, by permitting the petitioners to recover from the second respondent-insurer an amount of Rs.30,43,000/- with interest and cost. 7. Aggrieved by the allowing of the claim petition, the insurer is in appeal. 8. Heard; Smt. A. Sreekala, the learned counsel appearing for the appellant/insurer. 9. The cardinal grounds of challenge in the memorandum of appeal are: - (i) the fixation of the monthly income of the deceased on notional basis at Rs.18,000/- is on the higher side; M.A.C.A.No.678/2022 -:5:- - (ii) the quantum of compensation awarded under the other different heads is excessive. 10. As the grounds (i) and (ii) are intertwined, they are being considered together. ## **Ground Nos.(i)& (ii)** 11. Ext.A7 chargesheet laid by the police substantiates that the accident occurred solely due to the negligence of the first respondent. Indisputably, the first respondent was also the owner and the second respondent was the insurer of the van. The respondents have not let in evidence to discredit Ext.A7 chargesheet. Likewise, the second respondent-insurer has not proved that the first respondent had violated the insurance policy conditions. Therefore, the second respondent is to indemnify the liability of the first respondent arising out of the accident. M.A.C.A.No.678/2022 -:6:- 12. The petitioners had produced Ext.A11 certificate issued by Sri. Vellappally Natesan College of Engineering, Kayamkulam, to substantiate that the deceased was a first year Mechanical Engineering student. 13. The Tribunal, relying on the decision of the Division Bench of this Court in **Fathimath Zuhara @ Zuhra Razak and Another** [2016 (3) KLT 459], fixed the notional monthly income of the deceased at Rs.18,000/-. 14. In a recent decision in **Basanti Devi and Another v. The New India Insurance Co.Ltd** & **Others** [(Civil Appeal Nos.7435-7436 of 2021) (Live Law 2021 SC 728)] , the Hon'ble Supreme Court has fixed the notional monthly income of an Engineering Graduate,who lost his life in an accident on 10.03.2011 at the age of 25 years, at Rs.20,000/-. 15. In **Fathimath Zuhara** (supra), this Court has M.A.C.A.No.678/2022 -:7:- fixed the monthly income of an Engineering student, who lost her life in an accident on 10.9.2005, notionally at Rs.12,000/-. 16. In the light of the law laid down in **Basanti Devi** and **Fathimath Zuhara** (supra), which were both accidents which happened prior to the accident in the case at hand, the Hon’ble Supreme as well as this Court has fixed notional monthly income of Engineering students at Rs.20,000/- and Rs.12,000/-, respectively. Therefore, I do not find any reason to adopt a different yardstick than what is laid down in the above-cited decisions, especially considering the fact that the accident happened on 21.09.2016. Hence, I am of the definite view that the monthly income of the deceased fixed at Rs.18,000/- by the Tribunal on notional basis is perfectly justifiable and sustainable in law. Hence, I answer Ground No.(i) in favour of the petitioners. M.A.C.A.No.678/2022 -:8:- ## **Ground No. (ii)** 17. With respect to the other heads of compensation, the Tribunal has after relying on the decisions of the Hon’ble Supreme Court in **Sarla Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)], **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] and **Magna General Insurance Ltd v. Nanu Ram @ Chuhru Ram and Others** [(2018) 18 SCC 130], awarded the petitioners ‘future prospects’ and compensation under the ‘conventional heads’. I do not find any illegality or error in the compensation awarded by the Tribunal towards ‘loss of dependency’ as well as compensation under the ‘conventional heads’. 18. It is to be remembered that, the accident happened in the year 2016. It is nearly six years since M.A.C.A.No.678/2022 -:9:- the petitioners have been knocking at the doors of the Tribunal, seeking compensation on account of the death of their breadwinner. It is trite, that the Tribunals/Courts are permitted to do some guess work and also exercise their discretion in awarding reasonable and just compensation, for which there cannot be formula based on any straight jacket arithmetical exactitude or precision. The Tribunal has, after a threadbare analysis of the facts, judicially exercised its powers based on the provisions of the Act and the authoritative precedents of the Honourable Supreme Court, while arriving at the conclusion in the impugned award. The grounds urged in the memorandum of appeal do not warrant the appeal to be admitted, which would only be a wastage of judicial time and harassment to the respondents. 19. The Honourable Supreme Court in **New India Assurance Co. Ltd. vs. Kiran Singh & Ors.** M.A.C.A.No.678/2022 -:10:- [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. In the result, in exercise of the powers of this Court under Order LXI Rule 11 of the Code of Civil Procedure,1908 and following the ratio decidendi in **Kiran Singh** (supra), I dismiss the appeal at the threshold. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/07.03.22 //True copy/ P.A.To Judge