Royal Sundaram General Insurance Company Limited v. Thasni and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943** **MACA NO. 4593 OF 2019** **AGAINST THE AWARD DATED 24.07.2018 IN O.P.(MV)NO.29/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI, MALAPPURAM** ## **APPELLANT/2ND RESPONDENT:** **ROYAL SUNDARAM GENERAL INSURANCE COMPANY LIMITED, KOCHI NOW REPRESENTED BY THEIR ZONAL HEAD, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600002** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1 THASNI, AGED 26 YEARS, W/O.LATE ABDUL VAHAB, THAYYIL HOUSE, MAMPAD.P.O., PONGALLUR, PULLIPADAM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-676542** **2 ASHRAF, AGED 53 YEARS, S/O.MAMMADU, THAYYIL HOUSE, MAMPAD.P.O., PONGALLUR, PULLIPADAM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-676542** **3 UMMUKULSU, AGED 50 YEARS, W/O.ASHRAF, THAYYIL HOUSE, MAMPAD.P.O., PONGALLUR, PULLIPADAM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-676542** M.A.C.A.No.4593/2019 -:2:- **4 ASHIM AMLAN, AGED 9 YEARS(MINOR), S/O.LATE ABDUL VAHAB, THAYYIL HOUSE, MAMPAD P.O., PONGALLUR, PULLIPADAM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-676542** **5 ASHIM AJVAN, AGED 4 YEARS(MINOR), S/O.LATE ABDUL VAHAB, THAYYIL HOUSE, MAMPAD .P.O., PONGALLUR, PULLIPADAM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-676542** **BY ADV SRI.P.M.RAFIQ** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.4593/2019 -:3:- Dated this the 10[th] day of August,2021 ## **J U D G M E N T** The appellant - insurer - was the second respondent in O.P (MV)No.29/2016 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondents in the appeal were the petitioners before the Tribunal. The appellant has not impleaded the first respondent before the Tribunal as a party 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 'Abdul Vahab'(deceased), the husband of the first petitioner, the son of the petitioners 2 and 3 and the father of the petitioners 4 and 5. The petitioners had averred in the claim petition that, on 22.10.2015, while M.A.C.A.No.4593/2019 -:4:- the deceased was in a car travelling bearing registration No.KL-10/ AT-2343 from Edakkara to Nilambur, the car capsized. The deceased sustained serious injuries and succumbed to the same on the same date. The first respondent was the driver cum owner of the car, who drove the vehicle in a rash and negligent manner. The second was the insurer of the car. The petitioners were all dependants of the deceased. The deceased was a lorry driver by profession and earning a monthly income of Rs.15,000/-. Hence, the petitioners claimed a total compensation of Rs.40,88,000 from the respondents. 3. Although the first respondent entered appearance, he did not file any written statement. 4. The second respondent filed a written statement, refuting the allegations in the claim petition. However, the second respondent admitted that the car had a valid insurance coverage. The M.A.C.A.No.4593/2019 -:5:- second respondent also disputed the age, income and employment of the deceased. 5. The petitioners produced and marked Exts.A1 to A6 in evidence. The respondents did not let it any evidence. 6. The Tribunal by the impugned award allowed the claim petition in part by directing the second respondent to pay the petitioners an amount of Rs.24,31,600/- with interest and costs. 7. Aggrieved by the award, the second respondent/insurer is in appeal. 8. Heard; Adv.Sri. Mathew Jacob, the learned Senior Counsel appearing for the appellant and Adv. Sri. P.M. Rafiq, the learned counsel appearing for the respondents. 9. The principle grounds of challenge in the Memorandum of appeal are: M.A.C.A.No.4593/2019 -:6:- - _(i) that the notional income fixed by the Tribunal is on the higher side;_ - _(ii) that the Tribunal ought to have deducted one-third of the compensation for 'loss of dependency' towards personal living expenses of the deceased instead of ¼[th] ;_ - _(iii) that the awarding of Rs.1,00,000/towards 'loss of love and affection' was on the higher side;_ _and_ - _(iv) that the rate of interest was on the higher side._ 10. On a perusal of the materials on record and the impugned award, it can be gathered from Ext.A3 final report filed by the police, that the accident occurred solely on account of the negligence of the first respondent. Undisputedly, the second respondent/ appellant was the insurer of the vehicle. Therefore, the second respondent is liable to indemnify the liability of M.A.C.A.No.4593/2019 -:7:- the first respondent. 11. The respondents/petitioners had stated in the claim petition that the deceased was a lorry driver by profession and earning a monthly income of Rs.15,000/-. Nevertheless, the Tribunal fixed the notional income of the deceased at Rs.10,500/-, following the ratio in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236]. 12. In the afore-cited decision, the Hon'ble Supreme Court has categorically fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. It is further directed that the notional income has to be enhanced by Rs.500/- every year. Taking into account the fact that the accident occurred in the year 2015, I hold that the notional income of the deceased fixed by the Tribunal at Rs.10,500/- is correct and in accordance with law. M.A.C.A.No.4593/2019 -:8:- 13. The respondents had specifically pleaded in the claim petition that they were all dependants of the deceased. The first respondent was the wife, respondent Nos.2 and 3 were the parents and respondent Nos.4 and 5 were the children. They have produced Ext.A4 Surviving Family Membership Certificate to prove their assertion. The respondents did not let in any contra evidence to disprove the above assertion and Ext.A4 Surviving Family Membership Certificate. 14. In the above said circumstances, I am of the considered opinion that the finding of the Tribunal that the respondents were the dependants of the deceased was justifiable and correct. 15. In light of the law laid down in _**Sarla Verma and Others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)] and taking into consideration the large family of the deceased, the M.A.C.A.No.4593/2019 -:9:- Tribunal has rightly deducted ¼[th] of the total compensation towards the 'personal living expenses' of the deceased. 16. The next question, is whether the amount of Rs.1,00,000/- awarded by the Tribunal as compensation under the head 'loss of love and affection' is justifiable or not. 17. Although the Tribunal found that the respondents were five in number and they were dependants of the deceased, the Tribunal has only awarded Rs.40,000/- as compensation towards 'loss of consortium' to all the petitioners. 18. In clause (viii) of paragraph 61 of _**National Insurance Company Ltd. v. Pranay Sethi**_ [(2017) 16 SCC 680], the Honourable Supreme Court has held that all dependants of the deceased are entitled to Rs.40,000/- towards 'loss of consortium', which comes to an amount of Rs.2,00,000/-. Therefore, even if the M.A.C.A.No.4593/2019 -:10:- amount of Rs.1,00,000/- awarded under the head 'loss of love and affection' is to be set aside, the respondents are entitled for a further amount of Rs.1,60,000/- under the head 'loss of consortium'. 19. Therefore, on an overall consideration of the pleadings, the impugned award and the law referred to in the afore-cited decisions, I do not find any error or illegality committed by the Tribunal in arriving at the above-mentioned compensation amount, which according to me is just and reasonable compensation. 20. The Hon'ble Supreme Court in _**New India Assurance Company Ltd. v. Kiran Singh and others**_ [2004 AIR SC 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 M.A.C.A.No.4593/2019 -:11:- dismiss such appeals with heavy costs apart from the deprecating such practice. 21. It is to be borne in mind that the accident occurred on 22.10.2015 and that is nearly six years that the respondents have been knocking at the doors of the courts seeking 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 in awarding the reasonable and just compensation, for which there cannot be any straight jacket formula based on arithmetical precision. I find that the Tribunal has judicially exercised its powers based on the provisions of the Motor Vehicles Act, 1988 and the authoritative precedents of the Hon'ble Supreme Court while arriving at the conclusion in the impugned award. I do not find any justifiable ground in the memorandum of appeal warranting admission of the appeal, which will M.A.C.A.No.4593/2019 -:12:- only be a wastage of judicial time and harassment to the respondents/ petitioners. Following the ratio in _**Kiran Singh**_ (supra), I hold that the appeal is devoid of any merits and does not warrant admission. Therefore, I dismiss the appeal at the threshold. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge