Royal Sundaram General Insurance Company Limited v. Shabu Kuriyan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944** **MACA NO. 338 OF 2019** **AGAINST THE ORDER/JUDGMENTOPMV 699/2015 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL PALA** **APPELLANT: 3RD RESPONDENT:** **ROYAL SUNDARAM GENERAL INSURANCE COMPANY LIMITED, KOCHI NOW REPRESENTED BY THEIR ZONAL HEAD, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI- 600002.** **BY ADVS. MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS: PETITIONERS AND 2ND RESPONDENT** - **1 SHABU KURIAN, S/O.K.V.KURIAKOSE, KOCHUKUDI HOUSE, B3 QUARTERS, KALADY PLANTATION P.O., AYYANPUZHA VILLAGE, ALUVA TALUK, PIN- 683581.** - **2 PAULI P.A. @ POULY SHABU, W/O.SHABU KURIAN, KOCHUKUDI HOUSE, B3 QUARTERS, KALADY PLANTATION P.O., AYYANPUZHA VILLAGE, ALUVA TALUK, PIN- 683581.** - **3 LINSHY SHABU, W/O.SHIJU K., KOCHUKUDI HOUSE, B3 QUARTERS, KALADY PLANTATION P.O., AYYANPUZHA VILLAGE, ALUVA TALUK, PIN- 683581 NOW RESIDING AT THUVAKKAD, PERINGOTTUKURUSSI P.O., PIN- 678574.** - **4 LINDA SHABU @ LINDA SABU, AGED 21 YEARS D/O.SHABU KURIAN, KOCHUKUDI HOUSE, B3 QUARTERS, KALADY PLANTATION P.O., AYYANPUZHA VILLAGE, ALUVA TALUK, NOW RESIDING AT AMALABHAVAN, PUTHENCUZ P.O., PIN- 682308.** - **5 LISHA SHABU, AGED 18 YEARS D/O.SHABU KURIAN, KOCHUKUDI HOUSE, B3 QUARTERS,** **MACA NO. 338 OF 2019** **2** **KALADY PLANTATION P.O., AYYANPUZHA VILLAGE, ALUVA TALUK, PIN- 683581.** - **6 LIBIN SHABU @ LIBIN SABU (MINOR), S/O.SHABU KURIAN @ SABU, KOCHUKUDI HOUSE, B3 QUARTERS, KALADY PLANTATION P.O., AYYANPUZHA VILLAGE, ALUVA TALUK, PIN- 683581, NOW RESIDING AT MARIAPALANA SOCIETY, KUNNAPPILLY P.O., THRISSUR, PIN- 680311.** - **7 LIBIYA SHABU (MINOR), KOCHUKUDI HOUSE, B3 QUARTERS, KALADY PLANTATION P.O., AYYANPUZHA VILLAGE, ALUVA TALUK, PIN683581, NOW RESIDING AT MARIAPALANA SOCIETY, KUNNAPPILLY P.O., THRISSUR, PIN- 680311.** - **8 TINI THOMAS, S/O.THOMAS A.J., ARUPRAMBIL HOUSE, ELIKKULAM P.O., KARAKULAM, PIN- 686577.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 338 OF 2019** **3** ## **JUDGMENT** The Royal Sundaram General Insurance Company Limited, has filed this appeal assailing the compensation granted to the respondents, consequent to the death of Lishin Shabu in a road accident, which occurred on 16.03.2012. 2. Going by the essential facts involved, the deceased was travelling in a Pickup Van, which hit against an electric post, thus causing him injuries, leading to his unfortunate death. 3. The claimants, thereupon, filed O.P(MV) No. 699/2015 before the Motor Accidents Claims Tribunal, Pala ('Tribunal' for short), seeking a total compensation of Rs.30,00,000/-, but which has been allowed for a sum of Rs.16,09,270/-. 4. The appellant impugns the Award primarily on the ground that the amounts granted are excessive, particularly because the notional income of the deceased has been fixed incorrectly. **MACA NO. 338 OF 2019** **4** 5. Sri.Mathews Jacob – learned Senior Counsel instructed by Sri.P. Jacob Mathew – learned Standing Counsel for the appellant, submitted that the deceased was only 17 years at the time of the accident and hence, it cannot be believed that he was working for the business which owns the offending vehicle. He contended, therefore, that he could only be reckoned to be a gratuitous passenger; and therefore that, the compensation granted by the Tribunal is without rational basis. 6. As alternative submissions, the learned Senior Counsel submitted that, even going by **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. : [(2011) 13 SCC 236],** the Hon'ble Supreme Court has held that a person with unascertainable income in the year 2012 can only be reckoned as Rs.8,500/-; and consequently, that conclusion of the Tribunal, that he is entitled to Rs.10,000/- per month is incorrect. He, however, conceded that the percentage of “future prospectus” adopted and the multiplier applied are without error. 7. The learned counsel then pointed out that since the the death was consequent to the accident, no 'Loss of Earnings' could have been granted to the claimants and that **MACA NO. 338 OF 2019** **5** the Award of the Tribunal under this head is incorrect. He concluded his submissions asserting that it has been well settled, by various judgments of the Hon'ble Supreme Court, that when a victim dies, no compensation for 'Pain and Suffering' could have been granted, but that the Tribunal has granted Rs.50,000/- to the claimants under this head also. He thus prayed that Award of the Tribunal, to the extent impugned, be set aside. 8. Smt.Saritha Thomas – learned counsel appearing for the claimants, on the other hand, submitted that there is nothing to establish that the deceased was a gratuitous passenger and that there was no requirement for him to travel in a Pickup Van in such manner. She argued that the evidence on record, particularly the depositions of witnesses would luculently establish the case of the claimants that the deceased was working in a business concern which owned the offending vehicle; and therefore, that he could never be taken to be a gratuitous passenger. She fortified her submissions arguing that if the Insurance Company had any such case, they ought to have led evidence to such effect and that their refusal even to cite a witness to mount the box, would clearly show that this contention is only an **MACA NO. 338 OF 2019** **6** afterthought. 9. Coming to the quantum of compensation, Smt.Saritha Thomas submitted that the Award by the Tribunal under the heads 'Loss of Earnings' and 'Pain and Suffering' is without error because, the deceased was in hospital for over 18 days in great trauma and pain. She further submitted that, the notional income determined for the deceased, at Rs.10,000/-, by the Tribunal is wholly justified, going by the judgment of the Hon'ble Supreme Court in **Rajani v. Oriental Insurance Company Ltd. [2022 (5) KLT online** **1012 (SC)],** coupled with the standardization postulated by the said Court in **Ramachandrappa** (Supra). 10. I have considered the afore submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express agreement that this Court can act upon it without dispute. 11. The accident is not disputed; nor the fact that the inured unfortunately died 18 days later. 12. The only point of controversy is whether the deceased was travelling in the offending vehicle as a gratuitous passenger, or whether he was employed by the **MACA NO. 338 OF 2019** **7** entity which owned it. It is the specific case of the claimants, which has been averred in the pleadings and deposed by the witness, that the deceased was working in the business concern which owned the offending vehicle. There is no contra evidence led by the Insurance Company; nor did they cite any witness to disprove the same. When the facts are so undisputed, I do not see how the appellant can now say that the deceased was a gratuitous passenger. In this regard, it is interesting that the argument of the learned Senior Counsel for the appellant is that since the deceased was only 17 years old, he could not have been working; and therefore, it should be axiomatically inferred that he is a gratuitous passenger. I am afraid that, this is a far-fledged argument because, even going by **Sarala Verma v. Delhi Transport Corporation [2010(2) KLT 802]** and in various other judgments of the Hon'ble Supreme Court, while fixing the percentage for 'Future Prospectus', in income, persons between the age groups 16 – 39 has been permitted 40%, which luculently shows that there is no assumption in law that a 17 year old cannot work. This argument certainly, therefore, deserves only to be repelled as being speculative and conjunctural and no more. **MACA NO. 338 OF 2019** **8** 13. Coming to the quantification, the notional income taken by the Tribunal for the deceased is Rs.10,000/-. This has been done taking note of the undisputed fact, proved by unimpeached evidence that he was a 'Fish Cutter', which is a skilled one. As rightly argued by Smt.Saritha Thomas, going by **Rajani** (Supra), the Hon'ble Supreme Court has made it limpid that a 'robust view' has to be taken in case of fixation of notional income in the case of skilled labourers. Hence, since the deceased was a 'Fish Cutter', which certainly is a skilled labour, I do not think that the Tribunal has erred or gone wrong, particularly when, even as per **Ramachandrappa** (Supra), a person with unascertainable income is granted a notional income of Rs.8,500/-. The enhancement of the said amount by Rs.1,500/- certainly is an order, especially, as seen above, the deceased was a skilled labourer. 14. However, that said, coming to the heads of compensation awarded by the Tribunal under 'Loss of Earnings' and 'Pain and Suffering', there is some force in the argument of the learned Senior Counsel. This is because, when the victim died resultant to the injuries sustained by him in the accident,there could have been no 'Loss of **MACA NO. 338 OF 2019** **9** Earnings' and his 'Pain and Suffering' also cannot attract compensation, going by the judgment of the Hon'ble Supreme Court in **United India Insurance Co.Ltd v. Satinder Kaur** ## **“ Satwinder Kaur [2020(3) KHC 760].** In the afore circumstances, I allow this appeal only in part, deleting the compensation awarded by the Tribunal under the heads 'Loss of Earnings' and 'Pain and Suffering', but confirming every other award, without any alteration. **Sd/- DEVAN RAMACHANDRAN, JUDGE** lsn