Shriram General Insurance Company Limited v Mathoor Valsala Kumaran and Uma Devi

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MRS. JUSTICE MARY JOSEPH` ``` WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 ``` ## `MACA NO. 3976 OF 2019` ``` AGAINST THE AWARD DATED 03.05.2019 IN OP(MV)NO.835 OF 2018 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR ``` ## `APPELLANT/3RD RESPONDENT:` ``` SHRIRAM GENERAL INSURANCE COMPANY LIMITED, AZAD TOWERS, AMMANKOVIL CROSS ROAD, KOCHI,PIN-682001. REP BY IT'S LEGAL OFFICER,SHRIRAM G.I.CO.LTD. ERNAKULAM. ``` ``` BY ADVS.SRI.R.AJITH KUMAR VARMA SRI.LINTO FRANCIS ``` ## `RESPONDENTS/CLAIMANTS:` ``` 1MATHOOR VALSALA KUMARAN, AGED 57 YEARS, S/O PALLIYALIL PADMANABHAN, MATHOOR HOUSE,P.O,KADAVALLUR, PIN-680543,THRISSUR DISTRICT,NOW RESIDING AT KRISHNA.P.O. TRIKANDIYUR,PIN-676104,TRIKANDIYUR AMSOM,TIRUR TALUK, MALAPPURAM DISTRICT. 2UMADEVI,AGED 50 YEARS, W/O VALSALA KUMARAN,MATHOOR HOUSE,P.O.KADAVALLUR,PIN-680543, THRISSUR DISTRICT,NOW RESIDING AT KRISHNA,P.O,TRIKANDIYUR, PIN-676104, TRIKANDIYUR AMSOM,TIRUR TALUK, MALAPPURAM DISTRICT. ``` ``` BY ADV. SMT.DEEPA NARAYANAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.3976 of 2019 2 ``` ## **JUDGMENT** ## **Dated this the 6[th] day of March, 2024** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Tirur (for short ‘the Tribunal’) on 03.05.2019 in O.P.(MV) No.835/2018. The appellant is the 3[rd] respondent before the Tribunal who was the insurer of a Bolero goods carrier bearing Registration No.KL-55-D-7603, involved in the motor accident. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondent No.3 in accordance with their status in the Original Petition. 3. The motor accident was occurred on 2.30 p.m. on 19.03.2018. A Bolero goods carrier bearing Registration No.KL-55-D-7603 dashed against the motorcycle bearing Registration No.KL-48-K-7890 ridden by one Mr.Padmakumar through Thrissur-Kozhikode Highway due ## **`M.A.C.A.No.3976 of 2019 3`** to rash and negligent driving by it’s driver and thereby he sustained serious injuries. He was rushed to Almass Hospital, Kottakkal for treatment. While undergoing treatment there, he succumbed to the injuries on the same day by 4.20 p.m. He was averred as an young, energetic and enthusiastic person, who did his schooling from Abu Dhabi during his stay there with his parents. He has completed his Auto CAD (2D & 3D) from Galaxy Computer Education, UAE and obtained Certificate of Appreciation in Talent Search conducted by the Innovative Development Centre for Educational Aptitude (IDEA). During his Plus Two studies he had also worked as a volunteer in Formula 1 Car Racing at Abu Dhabi and earned money for his own expenses. The motor accident was allegedly occurred due to the rash and negligent driving of the Bolero goods vehicle by it’s driver. The above Original Petition was filed by the legal heirs of Mr.Padmakumar seeking for `30,45,000/- as compensation from the driver, the ## **`M.A.C.A.No.3976 of 2019 4`** registered owner and the insurer of the Bolero goods carrier arrayed respectively there as respondents 1 to 3 and all of them were alleged as jointly and severally liable to pay the compensation. 1[st] respondent did not turn up to contest the Original Petition and therefore declared as _exparte_ . 2[nd] respondent entered appearance but did not file written statement. 3[rd] respondent filed written statement, admitting issuance of a valid certificate of insurance for the Bolero goods carrier bearing Registration No.KL-55-D-7603 as on date of the motor accident. It was contended that the motor accident in question was occurred due to the negligence of Mr.Padmakumar himself and not due to the negligence of the 1[st] respondent who was driving the Bolero goods carrier at the relevant time of the motor accident. Compensation claimed is also disputed for it’s exorbitant nature. 4. Before the Tribunal, petitioners have adduced documentary evidence as Exts.A1 to A9 and C1. I[st] ``` M.A.C.A.No.3976 of 2019 5 ``` petitioner deposed as PW1. Respondents failed to adduce any evidence. On the basis of the evidence on record the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the Bolero goods carrier by the 1[st ] respondent. The Tribunal calculated the compensation payable in favour of the petitioners on the basis of the materials furnished by them and arrived at a sum of `28,67,200/-. It directed the 3[rd] respondent to deposit the same with interest at the rate of 7% per annum from the date of filing of the Original Petition till the date of payment alongwith proportionate costs. 5. The main contention raised was with regard to the monthly income fixed by the Tribunal for the purpose of calculation of compensation for loss of dependency. According to the learned counsel `18,000/- was fixed by the Tribunal as monthly income of the deceased without any basis. The learned counsel invited the attention of ``` M.A.C.A.No.3976 of 2019 6 ``` this Court to paragraph 7 of the impugned award wherein a discussion was made about the educational qualification of Mr.Padmakumar and also various training programmes undergone by him. The Tribunal had dealt with the various certificates produced by the petitioners and marked in evidence. Due consideration was also given by the Tribunal to the factum that the sibling of the deceased was an ablebodied man graduated in MBA and working abroad for a reasonable salary while fixing `18,000/- as the monthly income of the deceased. The learned counsel has pointed out further that petitioners are not entitled to get compensation for pain and sufferings and loss of love and affection, but the Tribunal awarded the same in their favour. 6. The learned counsel for the respondents contended on the contrary that the monthly income fixed by the Tribunal being a reasonable sum, interference is uncalled for. According to him the educational and technical ``` M.A.C.A.No.3976 of 2019 7 ``` qualification of the deceased is well established from the documentary evidence adduced by the petitioners and therefore the Tribunal is perfectly justified in fixing `18,000/- as the monthly income and calculating the compensation payable on it’s basis. Accordingly it was canvassed that the compensation stood awarded by the Tribunal is only liable to be confirmed. 7. It is found that `18,000/- was fixed by the Tribunal as the monthly income of the deceased. He was only a final year BCom student at the relevant time of his death due to the motor accident. True that he has produced Exts.A2 to A5 series and Ext.A9 with a view to establish the chance for him to obtain a decent job in the near future. Ext.A1 is the true copy of AutoCad (2D &3D) certificate issued from Galaxy Computer Education and Training Institute, UAE, Ext.A2 is a true copy of Certificate of Appreciation issued by the Minister of Culture, Youth and Community Development, UAE and Exts.A3 and A9 ``` M.A.C.A.No.3976 of 2019 8 ``` are true copies of NCC certificates issued by NCC group, Ernakulam, in favour of Mr. Padmakumar. Ext.A4 is true copy of attendance sheet, 2018 issued by the Principal, Mar-Dionysius College, Pazhanji. Ext.A5 series are original passports of the deceased. From Exts.A6 and A7 it is found that the 1[st] and 2[nd] petitioners were abroad while the deceased was pursuing his education at the school level. From Ext.A5 series also this Court is convinced that the petitioner was abroad while he was a student. Ext.A1 is the certificate which would establish that the petitioner was qualified in computer education from Galaxy Computer Education and Training Institute, UAE. From Ext.A2 it is clear that his merit has been appreciated by Minister of Culture, Youth and Community Development in UAE. Exts.A3 and A9 would show that Mr.Padmakumar was an NCC cadet during his studies. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court ``` M.A.C.A.No.3976 of 2019 9 ``` had taken `4,500/- as the monthly income of a coolie worker who met with a motor accident in the year 2004. The motor accident in the case on hand being occurred in the year 2018 and Mr.Padmakumar being a qualified man with a high profile both educationally and technically, a higher sum is liable to be considered and therefore, `13,000/- is fixed as his monthly income. The multiplier has been correctly adopted by the Tribunal. The deceased being a bachelor, half of the monthly income needs to be deducted having due regard to the personal expenditure liable to be incurred in case, he survived the motor accident. Mr.Padmakumar being aged only 21 years at the relevant time of his death untimely in the motor accident, future prospects is also required to be considered in his case. The Tribunal has added 40% to the monthly income in consideration of loss of future prospects and that being correct is maintained. Compensation for loss of dependency when calculated afresh with the modified factors as well as ## **`M.A.C.A.No.3976 of 2019 10`** those maintained, `19,65,600/- [(`13,000/- + 40% of `13,000) x 12 x 18 x 1/2] is arrived at. It is found from the table of calculation of compensation incorporated in the impugned award that the Tribunal has awarded the compensation for which the petitioners are entitled towards loss of estate and funeral expenses as per the guidelines issued by the Apex Court in **National Insurance Company Limited V. Pranay Sethi and Ors. [2017 (4) KLT 662 (SC)].** It is noticed that the Tribunal failed to award compensation towards loss of consortium ignoring the settled position of law in **Pranay Sethi** supra to pay `40,000/- to each of the petitioners. In the case on hand the deceased was survived by his parents and therefore each of them are entitled to get `40,000/-. Thus `80,000/- (`40,000/- x 2 ) is awarded as compensation towards loss of consortium. It is found from the impugned award that the Tribunal has awarded compensation for pain and sufferings as well as loss of love and affection. ``` M.A.C.A.No.3976 of 2019 11 ``` Indisputably, petitioners being the legal representatives of the deceased are not entitled to get compensation under those heads. Therefore, `20,000/- and `80,000/- stood awarded under the respective heads of compensation are liable to be deducted from the total compensation payable. The compensation stood awarded towards transportation expenses, treatment expenses and damages to clothing being reasonable are only to be maintained. 8. In the modified calculation of compensation afresh, petitioners will get only `20,91,147/- (`15,000/- + `15,000/- + `80,000/- + `5,000/- + `1,000/- + `9,547/- + `19,65,600/-)(Rupees twenty lakhs ninety one thousand one hundred and forty seven only) as the total compensation. The said amount will also carry interest at the rate of 7.5% per annum from the date of the Original Petition till the date of payment. Petitioners are also entitled to get proportionate costs. The 3[rd] respondent shall deposit the above sum with interest fixed at the rate ``` M.A.C.A.No.3976 of 2019 12 ``` as above, within a period of two months from the date on which certified copy of this judgment is received. The amount shall be disbursed in favour of the petitioners in accordance with the directions of the Tribunal in the impugned award and also the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. MACA stands allowed in part accordingly. Sd/- **MARY JOSEPH JUDGE** MJL