TATA AIG GENERAL INSURANCE CO. LTD. v. AMMUKUTTY AMMA and OTHERS

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`WEDNESDAY, THE 5[TH] DAY OF APRIL 2023 / 15TH CHAITHRA, 1945`** ## **`MACA NO. 2350 OF 2014`** ## **`AGAINST THE AWARD IN O.P(M.V) NO.294/2012 DATED 09.06.2014 OF MOTOR ACCIDENTS`** ## **`CLAIMS TRIBUNAL, OTTAPALAM.`** ## **`APPELLANT/3RD RESPONDENT IN THE OP:`** ``` TATA AIG GENERAL INSURANCE CO. LTD., AGED 71 YEARS REPRESENTED BY ITS AUTHORISED SIGNATORY, 2ND FLOOR,SAMSON TOWERS, NO.403L,PANTHEON ROAD,EGMORE,CHENNAI-600 008. ``` ``` BY ADV SRI.A.R.GEORGE ``` ## **`RESPONDENTS/CLAIMANTS IN THE OP:`** ``` 1AMMUKUTTY AMMA, W/O.LATE M.SANKUNNI NAIR, KANJUMPURETATHIL HOUSE,THIRUMITTAKODE VILLAGE, NELLIKKATTIRI POST,OTTAPALAM TALUK,PALAKKAD DISTRICT. 2MUKUNDAN.K, AGED 40 YEARS S/O.SANKUNNI NAIR, -DO- -DO- 3HARIHARAN.K, AGED 37 YEARS S/O.SANKUNNI NAIR, -DO- -DO- 4SUDHA.K, AGED 35 YEARS D/O.SANKUNNI NAIR, -DO- -DO-. BY ADVS. SRI.O.P.NANDAKUMAR SRI.V.A.AJAI KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2350 OF 2014 ``` ``` 2 ``` ## JUDGMENT ## Dated this the 05[th] day of April, 2023. This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Ottapalam (for short, ‘the Tribunal’) on 09.06.2014 in O.P(M.V) No.294 of 2012. The appellant is the 3[rd] respondent before the Tribunal, who is the insurer of the offending motor vehicle involved in the motor accident. 2. The motor accident in the case on hand was occurred at about 08 p.m on 25.04.2012. Mr.Sankunni Nair, who was a pedestrian was hit by a Motorcycle bearing Registration No.KL52/B-7114 ridden by its rider in a rash and negligent manner. He sustained serious injuries and rushed to Sevana Hospital, Pattambi. During the course of treatment, he died on 29.04.2012 at 5.30 p.m. Alleging that the motor accident was occurred due to the rash and negligent riding of the Motorcycle bearing Registration No. KL-52/B-7114 by its rider, who was arrayed as the 2[nd] respondent and claiming for a total sum of `8,22,500/- as compensation, the above Original Petition was filed before the Tribunal. ``` MACA NO. 2350 OF 2014 ``` ``` 3 ``` 3. The owner, the rider and the insurer of the motorcycle were arrayed as respondent Nos. 1 to 3 in the Original Petition. Though the respondents were served with notice, 3[rd] respondent alone entered appearance and filed a written statement. 1[st] and 2[nd] respondents did not turn up to contest the Original Petition and therefore, declared exparte. 4. In the written statement filed by the 3[rd] respondent, the policy issued in respect of the motorcycle involved in the motor accident in question was admitted. It was contended that the motor accident was occurred due to the negligent and careless walking of Mr.Sankunni Nair through the road. The age, the occupation and the monthly income of Mr.Sankunni Nair were disputed. The compensation claimed is also disputed for its exorbitance. 5. Evidence was adduced before the Tribunal by the petitioners alone and it consists of Exts.A1 to A14. On the basis of the evidence adduced as above, the Tribunal found that the motor accident in question was occurred due to the rash and negligent riding of the motorcycle by the 2[nd] respondent. The Tribunal also found on the basis of the injuries established as sustained by ``` MACA NO. 2350 OF 2014 ``` ``` 4 ``` Mr.Sankunni Nair in the motor accident and the death followed thereby, that the petitioners who are his wife and children are entitled to get compensation. `7,62,500/- was arrived at as the compensation payable and the 3[rd] respondent was directed to deposit the same with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation alongwith proportionate costs. The insurer is before this Court in the appeal on hand raising a challenge against the huge sum stands awarded by the Tribunal as compensation. 6. The contention firstly raised by Sri.A.R George, the learned counsel for the appellant was that the Tribunal ought not to have deducted 1/3[rd] from the monthly income fixed, towards the personal expenditure liable to be met with by Mr.Sankunni Nair, had he survived the motor accident. According to the learned counsel, the Tribunal had dealt with in paragraph 10 of the impugned award that apart from the 1[st] petitioner, the other petitioners being the major children of the deceased cannot be considered as his dependents. Accordingly, the Tribunal found that the 1[st] petitioner wife alone is the sole dependent of the deceased. ``` MACA NO. 2350 OF 2014 ``` ``` 5 ``` But the Tribunal overlooked the said factum while deducting the sum liable to be spent by the deceased towards personal expenditure. 7. It is further contended by the learned counsel that ‘5 ‘ adopted by the Tribunal as multiplier is correct. According to him, compensation stands awarded under the head loss of consortium and funeral expenses being on the higher side, interference is required. According to him, the petitioners are entitled to get compensation under those heads in accordance with the sums fixed by the Apex Court in National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)]. 8. It is found from the impugned award that the wife of the deceased was granted `50,000/- as compensation towards loss of consortium, against her entitlement for `44,000/-. As compensation towards funeral expenses also the Tribunal has awarded `25,000/- against the entitlement of the petitioner for `16,500/-. Petitioners are also entitled to get `16,500/- as compensation towards loss of estate, but the Tribunal failed to award any sum. ``` MACA NO. 2350 OF 2014 ``` ``` 6 ``` 9. The petitioners are not entitled to get compensation under the head pain and suffering and loss of love and affection. Therefore, `10,000/- and `1,00,000/- respectively stand awarded by the Tribunal under those heads are liable to be deducted from the total additional compensation arrived at. 10. The learned counsel for the 3[rd] respondent has contended that I.A No.01/2022 was filed by him for receiving certain documents attached to it in additional evidence. The document produced alongwith the petition on hand as Annexure-I is only a discharge summary issued from Amrita Institute of Medical Sciences and Research Centre, Kochi, which would show that Mr. K. Mukundan, who was petitioner No.2 in the Original Petition on hand is a known patient of systemic hypertension for the past six years, that in the year 2006, he was presented at a local hospital with bilateral pedal oedema and was found to have elevated blood pressures and proteinuria, that he underwent a kidney biopsy on 18.05.2006, which showed Ig A nephropathy, mild nephrosclerosis, mild active interstitial nephritis and hypertensive vascular changes and that he was on regular follow up with a Nephrologist. ``` MACA NO. 2350 OF 2014 ``` ``` 7 ``` 11. By producing Annexure-A1, the learned counsel attempted to apprise this Court that he was actually a dependent of the deceased. But this document was not produced before the court below. There was only a mere averment in the Original Petition that all the petitioners are dependents of the deceased but the averment was not specific to the effect that the 2[nd] petitioner was suffering from nephrological problems and therefore, is unable to maintain himself. There was not even an averment in the Original Petition that in view of the disease of the 2[nd] petitioner, he is a dependent of the deceased. This Court has already stated that in paragraph 10 of the impugned award the Tribunal has found petitioners 2 to 4, not dependents of the deceased. Though a specific finding has been rendered to that effect, the petitioners have not approached this Court challenging the said finding. Neither any appeal nor any cross objection was filed raising a challenge against the finding rendered by the Tribunal as above. This appeal is filed by the insurer and therefore, this Court is not in a position to consider the contentions raised by the learned counsel for the respondents in the appeal, especially when a pleading to that effect was lacking in the Original ``` MACA NO. 2350 OF 2014 ``` ``` 8 ``` Petition on hand. The argument advanced by the learned counsel for the respondent is repelled being untenable. 12. Arguments advanced have basis and there is every reason to set aside the impugned award. 13. When compensation for loss of dependency is reassessed, `3,46,140/- (`11538/- x 12 x (1/2) x 5) is arrived at. 14. Therefore, the petitioners will get only `5,39,140/(`3,46,140/- + `16,500/- + `16,500/- + `44,000/- + `500/- + `800/- + `5,000/- + `800/- + `1,08,900/-) as compensation. Thus Rs.7,62,500/- stands awarded by the Tribunal is replaced by `5,39,140/-. The 3[rd] respondent shall pay the amount with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the direction issued by this Court in Circular No.03/2019 dated 06.09.2019. The learned counsel for the appellant insurer has submitted that 50% of the compensation amount stands awarded by the impugned award is already deposited by them. Therefore, the ``` MACA NO. 2350 OF 2014 ``` ``` 9 ``` amount already deposited shall be credited in the amount now awarded by this Court and the 3[rd] respondent is liable only to pay the remaining sum with interest due on it. **`Sd/-`** MARY JOSEPH JUDGE JJ