Shriram General Insurance Co. Ltd. v. Jose V.S. and others

M.A.C.A.1505/2018 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944** ## **MACA NO. 1505 OF 2018** **AGAINST THE ORDER/JUDGMENTOPMV 407/2014 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL , MANJERI** ## **APPELLANT/3rd RESPONDENT:** SHRIRAM GENERAL INSURANCE CO.LTD., E-8 EPIP, SITAPURA, JAIPUR, RAJASTHAN - 302022, REP.BY ITS MANAGER, SHRIRAM GENERAL INSURANCE CO.LTD., ERNAKULAM. BY ADV SRI.R.AJITH KUMAR (128/84) ## **RESPONDENTS/CLAIMANTS:** 1 JOSE.V.S, S/O. SAMUEL, VAZHAYIL HOUSE, NALLAMTHANNI P.O., PATHIPPARA, NILAMBUR TALUK, PIN - 679 330. 2 JESSY JOSE, W/O. JOSE V.S., VAZHAYIL HOUSE, NALLAMTHANNI P.O., PATHIPPARA, NILAMBUR TALUK, PIN - 679 330. 3 ABIN JOSE MINOR, S/O. JOSE V.S., VAZHAYIL HOUSE, NALLAMTHANNI P.O., PATHIPPARA, NILAMBUR TALUK, PIN - 679 330. REP.BY HIS NEXT FRIEND 1ST PETITIONER JOSE V.S., DO-DO. BY ADV SRI.K.RAKESH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.1505/2018 2 ## **C.JAYACHANDRAN, J.** **---------------------------------------------M.A.C.A.No.1505 of 2018 --------------------------------------------Dated this the 12[th] day of August, 2022** ## **J U D G M E N T** **1.** This appeal is preferred by the third respondent/insurance company challenging the award dated 01.01.2018 in O.P.(M.V.)No.407 of 2014 of the Motor Accidents Claims Tribunal, Manjeri. The claim was in respect of the death of one Jobin Jose, who succumbed to the injuries sustained in a road accident which took place on 06.04.2013. **2.** Heard the learned counsel for the appellant and the learned counsel appearing for the respondents/claimants. Perused the records. **3.** Essentially **,** three points were raised by the learned counsel for the appellant. The first is that, M.A.C.A.1505/2018 3 the monthly income reckoned for the deceased @Rs.12,000/is on the higher side. Learned counsel pointed out that the deceased was a student, who was working on a part time basis and his income has been certified to be @Rs.12,000/- as per Ext.A12. According to learned counsel, Ext.A12 cannot be taken on its face value and the same does not contain any GST number, atleast to ensure that, such a business concern was existing at the relevant time. Learned counsel pointed out that, even going by the judgment of the Honourable Supreme Court in **Ramachandrappa** v **. Manager, Royal** **Sundaram Alliance Insurance Company Ltd.** [2011 KHC 4675], the notional income could be reckoned only at Rs.9,000/-. **4.** Secondly, learned counsel pointed out that, Rs.1,00,000/- is given under the head 'love and affection', which is not permissible, as per the judgment of the Honourable Supreme Court in **National Insurance Co.** **Ltd.** v. **Pranay Sethi** [2017(4) KLT 662 (SC)]. Instead, the claimants' are entitled to consortium. The deceased, a M.A.C.A.1505/2018 4 bachelor, is survived by his parents, who are entitled to consortium @Rs.40,000/- each, as laid down by the Honourable Supreme Court in Pranay Sethi. **5.** Thirdly, learned counsel submitted that, Rs.25,000/- given under the head 'pain and suffering' also cannot be recognized, as the same abates with the death of the victim. **6.** Per contra, learned counsel for the claimant submitted that the income claimed has been duly proved by virtue of Ext.A12 certificate, supported by the evidence tendered by PW1, who issued Ext.A12. There exists nothing in the cross examination of PW1, which erodes the veracity of the evidence given by PW1 in the chief examination. As regards consortium in lieu of love and affection, learned counsel for the first respondent has no quarrel. The same is the case with 'pain and suffering', which is not allowable in cases of death. **7.** Having heard the learned counsel appearing on M.A.C.A.1505/2018 5 both sides, this Court is of the opinion that, income has been correctly reckoned by the learned Tribunal. Adequate and sufficient reasons have been stated by the Tribunal in reckoning the monthly income at Rs.12,000/. Primarily, the Tribunal took stock of Ext.A12 certificate, which certifies that the deceased was working as an Office Assistant on a part time basis, with a monthly salary of Rs.12,000/-. Ext.A12 is duly proved by examining the person who issued it as PW1, wherein, he would reiterate the contents of Ext.A12. He was cross examined to point out that the letter in Ext.A12 does not contain a GST number or sales tax registration number. PW1 answered that, his enterprise is having necessary sales tax registration. However, the same was not summoned by the insurance company (appellant) herein. When a document is sought to be impeached as not genuine, it is for that party to adduce necessary evidence, is the finding of the learned Tribunal. In as much as the insurance company has not summoned the necessary document, the claimant cannot be faulted with. This Court finds the dictum and M.A.C.A.1505/2018 6 the reason laid down by the Tribunal as reasonable and legal. This Court is also bound to take into account the fact that, the 22 year old boy had to face death only on account of the accident occurred by the lorry, which was insured with the appellant. **8.** As regards love and affection, this Court accepts the contention that, no amount is liable to be paid under that head. Instead, compensation has to be paid under the head 'consortium'. **9.** As regards the third point, there is no quarrel that the claimants are not entitled to 'pain and suffering' as per the settled legal position prevailing. In the circumstances, the appeal is allowed to the limited extent of doing away the sum of Rs.25,000/- granted under the head 'pain and suffering' and Rs.20,000/- being the excess amount under the head 'love and affection', when it is converted to the head 'consortium'. The amount payable to the claimant is M.A.C.A.1505/2018 7 ## reworked as indicated herebelow: |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the Tribunal**|**Total amount**<br>**after enhancement**<br>**in appeal**| |---|---|---|---| |1|Transport to Hospital|31,500|31,500| |2|Damage to clothing &<br>Articles|1,000|1,000| |3|Loss of Estate|15,000|15,000| |4|Loss of Love and<br>Affection|1,00,000|Nil| |5|Funeral Expenses|15,000|15,000| |6|Education loan of<br>deceased<br>Bystander expenses<br>Medical Expenses|13,200<br>9,70,148|Nil<br>13,200<br>9,70,148| |7|Extra Nourishment||Nil| |8|Compensation for pain &<br>suffering|25,000|Nil| |9|Compensation for future<br>economic benefits & loss<br>of dependency|18,14,400|18,14,400| |10|Loss of consortium|-|80,000| M.A.C.A.1505/2018 8 (40,000x2) Total 29,85,248 29,40,248 Amount reduced = Rs.29,85,248 - Rs.29,40,248 = Rs.45,000/- **10.** The Insurance Company shall pay interest for the amounts awarded at the rate directed in the impugned award. The appeal is allowed to the above extent. Sd/- **C.JAYACHANDRAN JUDGE** ``` Sbna/ ```