Shriram General Insurance Company Limited v. Shyamala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945** **MACA NO. 3030 OF 2019** **AGAINST THE ORDER/JUDGMENT OPMV 1664/2017 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/3RD RESPONDENT:** SHRIRAM GENERAL INSURANCE COMPANY LTD., 10003-E-8, RICO INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTHAN, REP. BY IT'S LEGAL OFFICER, SHRIRAM G.I.CO. LTD ERNAKULAM. BY ADVS. R.AJITH KUMAR (128/84) LINTO FRANCIS ## **RESPONDENT/CLAIMANTS:** 1 SHYAMALA AGED 46 YEARS W/O. DILEEP @ DILEEP KUMAR, PUTHIYOTTUMKUZHI MEETHAL(H), P.O. KUNNATHARA, KOZHIKODE, (MOTHER OF DECEASED)-673 620. 2 DILEEP @ DILEEP KUMAR, S/O. VIJAYAN, AGED 47 YEARS, PUTHIYOTTUMKUZHI MEETHAL (H), P.O. KUNNATHARA, KOZHIKODE, (FATHER OF DECEASED)-673 620 3 ANUPAMA, W/O. LATE SHYMDEESH, AGED 24 YEARS, PUTHIYOTTUMKUZHI MEETHAL (H), P.O. KUNNATHARA, KOZHIKODE (WIFE OF DECEASED)-673 620 4 JISHNU, S/O. DILEEP @ DILEEP KUMAR, AGED 22 YEARS, PUTHIYOTTUMKUZHI MEETHAL (H), P.O. KUNNATHARA, KOZHIKODE (BROTHER OF DECEASED)-673 620 MACA No.3030 of 2019, C.O NO.198 OF 2019 AND C.O NO. 53 OF 2020 **==> picture [7 x 9] intentionally omitted <==** BY ADVS. SRI.T.G.RAJENDRAN SRI.AVM.SALAHUDIN ## **OTHER PRESENT:** SRI.T.G.RAJENDRAN-R1, SRI.AVM.SALAHUDIN- R2-R4 THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 25.09.2023, ALONG WITH CO.53/2020, 198/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.3030 of 2019, C.O NO.198 OF 2019 AND C.O NO. 53 OF 2020 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945 CO NO. 53 OF 2020 AGAINST THE ORDER/JUDGMENT MACA 3030/2019 OF HIGH COURT OF** ## **KERALA** ## **CROSS OBJECTOR/RESPONDENT/1ST CLAIMANT:** 1 DILEEP @ DILEEP KUMAR AGED 47 YEARS S/O VIJAYAN, AGED 43 YEARS, RESIDING AT PUTHIYOTTUMKUZHI, MEETHAL (H), P.O. KUNNATHARA, KOZHIKODE - 673 620 (FATHER OF THE DECEASED) 2 ANUPAMA AGED 25 YEARS W/O LATE SHYMDEESH, RESIDING AT PUTHIYOTTUMKUZHI, MEETHAL (H), P.O. KUNNATHARA, KOZHIKODE - 673 620 (WIFE OF THE DECEASED) 3 JISHU AGED 23 YEARS S/O DILEEP @ DILEEP KUMAR, RESIDING AT PUTHYOTTUMKUZHI, MEETHAL (H), P.O., KUNNATHARA, KOZHIKODE - 673 620 (BROTHER OF THE DECEASED) BY ADVS. AVM.SALAHUDIN SMT.A.D.DIVYA ## **RESPONDENT/APPELLANT AND RESPONDENTS 2 TO 4/ R3 AND CLAIMANTS 2 TO 4:** 1 SHRIRAM GENERAL INSURANCE COMPANY LIMITED 10003-E-8, RICO INDUSTRIAL AREA SITAPURA, JAIPUR, MACA No.3030 of 2019, C.O NO.198 OF 2019 AND C.O NO. 53 OF 2020 4 RAJASTHAN, REPRESENTED BY ITS LEGAL OFFICER, SHRIRAM G.I. CO.LTD., ERNAKULAM. 2 SHYAMALA AGED 47 YEARS W/O DILEEP @ DILEEP KUMAR, RESIDING AT PUTHIYOTTUMKUZHI, MEETHAL (H), P.O., KUNNATHARA, KOZHIKODE - 673 620 (MOTHER OF THE DECEASED) THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 25.09.2023, ALONG WITH MACA.3030/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.3030 of 2019, C.O NO.198 OF 2019 AND C.O NO. 53 OF 2020 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945** **CO NO. 198 OF 2019** **AGAINST THE ORDER/JUDGMENT MACA 3030/2019 OF HIGH COURT OF** ## **KERALA** ## **CROSS OBJECTORS/RESPONDENTS NOS 2 TO 4/ CLAIMANTS NOS 2 TO 4:** SHYAMALA AGED 46 YEARS W/O.DILEEP @ DILEEP KUMAR, PUTHIYOTTUM KUZHI MEETHAL HOUSE, KUNNATHARA.P.O., KOZHIKODE-673620. BY ADV T.G.RAJENDRAN ## **RESPONDENT/APPELLANT AND 1ST RESPONDNET/3RD RESPONDNET AND** ## **1ST CLAIMANT:** 1 SHRIRAM GENERAL INSURANCE COMPANY LTD., 10003-E-8, RICO INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTHAN, REPRESENTED BY ITS LEGAL OFFICER SHRIRAM G I CO, LTD., ERNAKULAM. 2 DILEEP @ DILEEP KUMAR, S/O.VIJAYAN, AGED 49 YEARS, PUTHIYOTTUM KUZHI MEETHAL HOUSE, KUNNATHARA.P.O., KOZHIKODE-673620. 3 ANUPAMA, W/O.LATE SHYMDEESH, AGED 26 YEARS, PUTHIYOTTUM KUZHI, MEETHAL HOUSE, KUNNATHARA.P.O., KOZHIKODE673620. MACA No.3030 of 2019, C.O NO.198 OF 2019 AND C.O NO. 53 OF 2020 **==> picture [7 x 9] intentionally omitted <==** 4 JISHNU, S/O.DILEEP @ DILEEP KUMAR, AGED 24 YEARS, PUTHIYOTTUM KUZHI, MEETHAL HOUSE, KUNNATHARA.P.O., KOZHIKODE-673620. BY ADV R.AJITH KUMAR (128/84) **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 25.09.2023, ALONG WITH MACA.3030/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.3030 of 2019, C.O NO.198 OF 2019 AND C.O NO. 53 OF 2020 7 ## **JUDGMENT** This appeal is submitted by the 3[rd] respondent/Insurance Company, challenging the quantum of compensation awarded in O.P (MV) No.1664/2017 by the Motor Accidents Claims Tribunal, Kozhikode. The 1[st] claimant filed Cross Objection No.198/2019, seeking enhancement of compensation, whereas claimants 2 to 4 have filed Cross Objection No.53/2020, seeking enhancement. 2. The claim petition was submitted by respondents 1 to 4 in this appeal, seeking compensation for the death of one Shyamdeesh due to the injuries sustained in a motor accident that occurred on 23.03.2017. According to them, the accident occurred when the mini lorry driven by the deceased was hit by a truck bearing Registration No.KL-11/U-9566 driven by the 2[nd] respondent in the claim petition. The said vehicle was owned by the 1[st] respondent in the claim petition and was insured with the appellant herein. 3. According to the claimants, the deceased was aged 23 years and was working as a driver with a monthly income of Rs.25,000/-. The 1[st] and the 2[nd] respondents are the parents, the 3[rd] respondent is the wife, and the 4[th] respondent is the MACA No.3030 of 2019, C.O NO.198 OF 2019 AND C.O NO. 53 OF 2020 8 brother of the deceased. The claim petition was submitted in such circumstances. 4. The respondents 1 and 2 in the claim petition filed a written statement admitting the accident and also the ownership over the said vehicle. However, they disputed the negligence on the part of the driver of the lorry, and according to them, the accident occurred due to the negligence on the part of the deceased. It was also contended that the vehicle was duly insured with the appellant herein and, therefore, if at all there is any liability, that has to be indemnified by them. The appellant/3[rd] respondent filed a written statement admitting the policy but disputed the liability on various grounds. The negligence on the part of the 2[nd] respondent in the claim petition was disputed, and they also opposed the quantum of compensation claimed by the claimants. 5. The evidence in this case consists of Exts.A1 to A5 from the side of the claimants. No evidence was adduced from the side of the appellant. After appreciating the materials placed on record, the Tribunal came to a finding that the accident occurred due to the negligent driving of the vehicle by the 2[nd] respondent and being the insurer of the vehicle, the MACA No.3030 of 2019, C.O NO.198 OF 2019 AND C.O NO. 53 OF 2020 9 appellant/2[nd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.26,74,200/- and the appellant/Insurance Company was directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realisation with proportionate cost. This appeal is submitted by the Insurance Company in such circumstances challenging the said award, whereas the claimants have submitted cross objections seeking enhancement of the compensation. 6. Heard Sri.Linto Francis, the learned counsel appearing for the appellant, Sri. T.G. Rajendran, the learned counsel appearing for the 1[st] respondent and Sri.A.V.M. Salahudin, the learned counsel appearing for respondents 2 to 4. 7. The main contention put forward by the learned counsel for the appellant is with regard to the compensation granted under the header loss of dependency. It was pointed out that, even without any documents, the Tribunal has accepted an amount of Rs.12,000/- as the monthly income, which is on the higher side. On the other hand, the counsel appearing for the claimants would point out that, going by the MACA No.3030 of 2019, C.O NO.198 OF 2019 AND C.O NO. 53 OF 2020 10 decision rendered by the Hon’ble Supreme Court in **Manusha Sreekumar v. United India Insurance Co. Ltd** [2022 (5) KLT OnLine 1024 (SC)], the monthly income taken by the Tribunal is on the lower side. It was pointed out that in the said decision, the Hon’ble Supreme Court, by taking note of the notification issued by the Government of Kerala under the Kerala Motor Transport Worker's Payment Of Fair Wages Act, 1971, fixed the monthly income of a driver as Rs.15,600/- in respect of an accident occurred in the year 2015. Therefore, the said amount has to be taken as a monthly income, contends the learned counsel for the claimants. 8. After perusing the records, I find some force in the contention put forward by the learned counsel for the claimants. The facts that the deceased had a license to drive a transport vehicle and that the deceased was working as a driver at the relevant time are not seen seriously disputed. It is also to be noted in this regard that the deceased was driving a mini lorry at the relevant time. Therefore, it is evident that he was working as a driver, which is a skilled employment. Thus, in the light of the principles laid down by the Hon’ble Supreme Court in **Manusha Sreekumar case (supra)** , I deem it appropriate to MACA No.3030 of 2019, C.O NO.198 OF 2019 AND C.O NO. 53 OF 2020 11 fix the monthly income of the deceased as Rs.15,600/-. By reworking the compensation with the above revised monthly income, with an addition of 40% thereof towards the future prospectus, the amount of compensation for loss of dependency would come to Rs.31,44,960/- [(15600+40%)x2/3x18x12]. After deducting Rs.24,19,200/- already awarded by the Tribunal, the additional amount would come to Rs.7,25,760/-. 9. The learned counsel for the Insurance Company further submits that the Tribunal granted an amount of Rs.1,00,000/- towards loss of love and affection, which was not at all payable. I find some force in the contention in this regard. This is particularly because in the decision rendered by the Hon’ble Supreme Court in **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780],** it was held that when the compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection. In this case, an amount of Rs.1,00,000/- is granted towards the loss of consortium and therefore, no separate compensation needs to be awarded for loss of love and affection. Thus, an amount of Rs.1,00,000/- is deducted. However, it is seen that loss of consortium is to be MACA No.3030 of 2019, C.O NO.198 OF 2019 AND C.O NO. 53 OF 2020 12 awarded to respondents 1 to 3, who are the parents and the wife of the deceased, at the rate of Rs.40,000/- each. The total amount to be awarded under the said head is only Rs.1,20,000/- whereas the amount awarded is Rs.1,00,000/-. Therefore, a further sum of Rs.20,000/- is granted under the said head. Similarly, an amount of Rs.25,000/- is granted towards pain and suffering, which appears to be on the higher side. Therefore, I deem it appropriate to revise the same as Rs.10,000/-. Thus, the total additional compensation receivable by the claimants/cross objectors is Rs.6,30,760/-. In the light of the aforesaid finding and observations, the aforesaid appeal and cross-objections are disposed of by modifying the award dated 07.02.2019 passed by the Motor Accidents Claims Tribunal, Kozhikode in OP(MV)No.1664/2017, by granting an additional compensation of Rs.6,30,760/(Rupees six lakhs, thirty thousand, seven hundred and sixty only) to the respondents 1 to 3 and the Insurance Company shall deposit the said amount along with interest at the rate as ordered by the Tribunal with proportionate cost within a period of three months from the date of receipt of a copy of this MACA No.3030 of 2019, C.O NO.198 OF 2019 AND C.O NO. 53 OF 2020 **==> picture [13 x 9] intentionally omitted <==** judgment after deducting the amounts, if any, deposited by the Insurance Company. Sd/- **ZIYAD RAHMAN A.A** **JUDGE** rpk