The Oriental Insurance Co. Ltd. v. Lilly, Shobhana, Sureshkumar, Bijumon, Santhoshkumar and Shynimol

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938 MACA.No. 1408 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 74/2011 of M.A.C.T.,KOLLAM APPELLANT(S)/3RD RESPONDENT: -------------------------------------- THE ORIENTAL INSURANCE CO.LTD. REGIONAL OFFICE, METRO PALACE, GROUND FLOOR, NORTH RAILWAY STATION ROAD, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER ## BY ADV. SRI.V.P.K.PANICKER RESPONDENT(S)/PETITIONERS 1 TO 6: --------------------------------- 1. LILLY, W/O.CLEATUS, ASHTAMUDI POIKA MELATHIL HOUSE, KARIKUZHY BHAGAM, PADAPPAKKARA.P.O., KUNDARA, PERAYAM CHERRY, MULAVANA VILLAGE-691503. 2. SHOBHANA, D/O.CLEATUS, ASHTAMUDI POIKA MELATHIL HOUSE, KARIKUZHY BHAGAM, PADAPPAKKARA.P.O., KUNDARA, PERAYAM CHERRY, MULAVANA VILLAGE-691503. 3. SURESHKUMAR,S/O.CLEATUS, ASHTAMUDI POIKA MELATHIL HOUSE, KARIKUZHY BHAGAM, PADAPPAKKARA.P.O., KUNDARA, PERAYAM CHERRY, MULAVANA VILLAGE-691503. 4. BIJUMON, S/O.CLEATUS, ASHTAMUDI POIKA MELATHIL HOUSE, KARIKUZHY BHAGAM, PADAPPAKKARA.P.O., KUNDARA, PERAYAM CHERRY, MULAVANA VILLAGE-691503. 5. SANTHOSHKUMAR, S/O.CLEATUS, ASHTAMUDI POIKA MELATHIL HOUSE, KARIKUZHY BHAGAM, PADAPPAKKARA.P.O., KUNDARA, PERAYAM CHERRY, MULAVANA VILLAGE-691503. 6. SHYNIMOL, D/O.CLEATUS, ASHTAMUDI POIKA MELATHIL HOUSE, KARIKUZHY BHAGAM, PADAPPAKKARA.P.O., KUNDARA, PERAYAM CHERRY, MULAVANA VILLAGE-691503. R1-R6 BY ADV. SMT.M.MEENA JOHN R1-R6 BY ADV. SMT.SREEJA NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2016, ALONG WITH MACA. 412/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR &** ## **K. P. JYOTHINDRANATH, JJ.** **========================== ==========================** Dated this the 4[th] day of July, 2016 ## **M.A.C.A. Nos.1408 OF 2012 & 412 OF 2016** ## **JUDGMENT** _Ravikumar, J._ Both these appeals arise from the judgment and award dated 28.2.2012 in O.P.(MV).No.74 of 2011 passed by the Motor Accidents Claims Tribunal, Kollam. The former appeal has been preferred by the third respondent therein viz., the insurer of the offending vehicle, viz., the mini lorry bearing Reg.No.KL-02/W 588 involved in the accident in question, challenging the quantum of compensation granted by the Tribunal. The latter appeal has been filed by the petitioners therein seeking enhancement of the quantum of compensation on the ground that they were denied 'just compensation'. They are respectively the wife and children of the victim of the accident. The Tribunal granted a total compensation of **M.A.C.A.1408/2012 & 412/2016** 2 Rs.4,20,000/- with interest at the rate of 7.5% per annum from the date of petition till realisation and cost of Rs.4,000/-. 2.The main contention of the appellant in the former appeal is that disregarding the incongruity in the evidence adduced by the petitioners with respect to the age of deceased Cleatus at the time of the accident, the Tribunal wrongly took the multiplier as 9. In the claim petition, the age of the deceased Cleatus was stated as 57 and at the same time, it was given in Ext.A3 post mortem certificate as 60 years. It is contended that Ext.P7 would go to show that he was a fisherman registered with Fishermen Welfare Fund Board and retired from the said vocation. During the cross examination of PW1, i.e., the widow of deceased Cleatus, a suggestion was put to her as to whether the age of Cleatus recorded in the wound certificate is 60. She repudiated the said suggestion and at the same time, she deposed that she would be adducing better evidence. It is a fact that subsequently, she did not adduce any evidence. She is the first respondent in the latter appeal. In such circumstances, it is evident, as **M.A.C.A.1408/2012 & 412/2016** 3 contended by the appellant in the former appeal that there was incongruity regarding the age of deceased Cleatus at the time of the accident. Yet another contention taken up by the appellant in the former appeal is that the Tribunal deviated from the dictum laid down by the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** in regard to the deduction to be made towards personal expenses reckoning the number of **.** dependents It is submitted by the learned counsel appearing for the appellant-insurance company that going by the decision in **Sarla Verma** 's case, deduction has to be effected towards personal expenses with reference to the number of dependents and not with reference to the number of applicants. The contention is that, a perusal of the impugned award would reveal that in that regard, disregarding the position settled by the Apex Court in **Sarla Verma** 's case, the Tribunal effected deduction based on the number of claimants in stead of the number of dependents. In fact, in stead of deducting 1/3 of the income of the deceased only ¼ was deducted towards personal **M.A.C.A.1408/2012 & 412/2016** 4 expenses. 3.Respondents entered appearance in M.A.C.A.No.1408 of 2012. The learned counsel appearing for the respondents resisted the aforesaid contentions. Evidently, feeling aggrieved by the very same judgment and award in O.P.(MV).74/2011, the said respondents who are the legal heirs of the deceased Cleatus filed the latter appeal viz., M.A.C.A. No. 412/2016 with a petition to condone the delay of 1297 days. We will firstly consider the question whether the long delay of 1297 days is condonable accepting the averments made in the affidavit accompanying C.M.Application No.521 of 2016. Evidently, the details given in the said affidavit would undoubtedly reveal that the actual delay is, in fact, much more than 1297 days. There can be no doubt that while considering the question of condonation of long delay occurred in the matter of filing an appeal, despite the fact that it was filed by the claimants, it is incumbent on the Court to get satisfied with the reason assigned for the delay as sufficient. True that, normally, in the case of not unreasonably long **M.A.C.A.1408/2012 & 412/2016** 5 delay occurred in filing an appeal by an injured-claimant or the legal heirs of a victim, lenient view would be taken in the matter of condonation of delay. But, a delay of more than three and a half years, going by the calculation of the appellants, cannot be taken as a short delay and needless to say that in such circumstances, to enable a proper consideration, essentially, a reason must be assigned for the delay as satisfactory or not. It is to be noted that the recital in paragraph 6 of the affidavit would reveal that the deponent stated that the application for the certified copy of the award was filed on 6.11.2015 and there occurred a delay of 1344 days in applying for the certified copy. Paragraphs 3, 5 and 6 of the said affidavit are worthy to be extracted for considering the question whether the delay occurred in filing the aforesaid appeal is condonable. “3.Due to financial constraints, the petitioners could not take necessary steps to file appeal against the award in time. 5.Though the respondent Insurance Company had deposited 50% of the award amount before the Tribunal as per the interim order dated 23/7/2012 of this Hon'ble Court, the **M.A.C.A.1408/2012 & 412/2016** 6 petitioners were given permission to withdraw the same vide order dated 28/9/2012 of this Hon'ble Court in I.A.No.3319/2015 filed by the petitioners. 6.Accordingly, the petitioners received the amount deposited by the insurance company only on 7/11/2015. After sanctioning the said amount, the petitioners applied for the certified copy of the award on 6/11/2015. Hence there is a delay of 1344 days in applying the certified copy of the award. The certified copy of the award was received on 26/11/2015 and entrusted the counsel appearing for us to file the appeal.” When there occurred a delay of 1344 days in applying for the certified copy of the award dated 28.2.2012 and admittedly, the appeal was filed only on 6.1.2016, how can it be said that the delay was only 1297 days. Even if it is taken that the delay was only 1297 days, the question is what is the reason assigned for the said long delay. In paragraph 3, what was stated is that the appellants could not take steps due to financial constraints. It is to be noted that unlike advalorem fee to be paid for filing an application under section 166(1) of the M.V.Act claiming special damages and general damages in terms of Rule 397(1) of the Kerala Motor Vehicles Rules, 1989, going by Rule **M.A.C.A.1408/2012 & 412/2016** 7 397(3), only an amount of Rs.100/- need be paid as the fee for appeal by a claimant. True that over and above the same, other expenses also have to be met for filing an appeal. But, it is to be noted that the first petitioner who is the widow of the victim was aged 55 years at the time of filing the claim petition, the petitioners 2 to 6 who are the children of the victim, were then aged 37 years, 35 years, 32 years, 30 years and 27 years respectively. Petitioners 3 to 5 are his sons. Hence, we are not inclined to accept the reason of financial constraints as the reason for the inordinate delay of more than 1297 days. There is yet another reason for taking such a view. Obviously, on receiving notice on admission in the former appeal filed by the insurer, the petitioners entered appearance immediately on 25.9.2012. Even thereafter, they had not taken any step to file appeal against the award and they waited till 6.11.2015 to file an application for certified copy of the judgment. In view of the circumstances, we are not inclined to accept the statement in the accompanying affidavit filed in M.A.C.A.No.1408 of 2012 to condone the said delay of 1297 days. **M.A.C.A.1408/2012 & 412/2016** 8 The learned counsel for the third respondent-insurance company drew our attention to grounds 'B' and 'I' taken up in M.A.C.A.No.412 of 2016 to canvass the position that they would reveal the reason for filing the appeal belatedly with the above mentioned application for condoning the delay. They read thus:- “B. The Tribunal erred in granting only Rs.10,000/- towards loss of consortium. The Tribunal ought to have awarded at least Rupees one Lakh based on the decision in Rajesh's case reported in 2013(3) KLT 89 (SC). I. The amount awarded by the Tribunal for funeral expenses as Rs.5,000/- is inadequate. The Tribunal ought to have awarded at least Rs.25,000/- based on the decision in Rajesh's case reported in 2013 (3) KLT 89 (SC)” 4.The above extracted grounds would reveal that the petitioners who had not chosen to file the appeal even after the receipt of the notice on admission in the former appeal now, attempt to bring an appeal solely to get the benefits flowing from the decision in **Rajesh v. Rajbir Singh reported in 2013 (3) KLT 89 (SC)** as relates grant of compensation for loss of consortium and funeral expenses. As noticed **M.A.C.A.1408/2012 & 412/2016** 9 hereinbefore, the award sought to be challenged was passed on 28.02.2012. The petitioners who remained silent for years together cannot be permitted to bring an appeal in such circumstances especially when they failed even to take up cross objection in M.A.C.A.No.1408/2012. For the reasons mentioned above C.M.Appln.No.521 of 2016 filed in M.A.C.A.No.412/2016 to condone the aforesaid inordinate delay is liable to be dismissed and on such dismissal, M.A.C.A. No.412 of 2016 is also liable to be dismissed. 5.We have heard the learned counsel for the appellants and the learned counsel for the respondents in both the appeals. We have already taken note of the dual grievances of the appellant in the former appeal viz., the insurance company as against the judgment and award in O.P.(MV)No.74/2011. We have heard both sides on the said aspects. 6.As regards the first contention regarding the identification of the multiplier, certain factual aspects have to be looked into. There **M.A.C.A.1408/2012 & 412/2016** 10 cannot be any doubt with respect to the position that it is for the claimants to establish the age of the deceased while filing an application for compensation for death under Section 166 of the Motor Vehicles Act. It has to be established with precision to enable the Tribunal to find the correct multiplier applicable in such a claim petition. The facts expatiated above would reveal that the age of the deceased had been mentioned differently in different documents. At any rate, it does not tally with the statement made by the respondents/claimants with respect to the age of the deceased in the claim petition. When the respondents/claimants have failed to bring on record the exact age or date of birth of the deceased, the age referred to in the postmortem certificate can be looked into. But at the very same time, what is stated therein is only the age and not the date of birth. The age is stated therein as 60 years. In other words, it is not discernible from any of the records as to whether the deceased had crossed the age of 60 years. The said aspect has relevance for the purpose of identifying the age group of the deceased. If a concerned **M.A.C.A.1408/2012 & 412/2016** 11 victim or deceased crossed the age of 60 even by a day at the time of accident/death, he would fall under the age group of 61-65 years. The multiplier then to be adopted would be that of persons falling within the age group of 61-65 years viz., '7'. In the said circumstances, it cannot be said that the contention raised by the appellant in the former appeal is having no force. 7.The next grievance of the appellant in the former appeal is with respect to the question whether the Tribunal had deviated from the dictum laid down by the Apex Court in **Sarla Verma'** s case while effecting deductions reckoned towards the personal expenses of the deceased. The question how it is to be found out is not res integra in the light of the decision in **Sarla Verma'** s case (supra). Going by the decision in **Sarla Verma's** case, the number of dependents is the decisive factor and not the number of claimants. The first claimant is the widow. Certainly, she was a dependent of the deceased. But, as regards claimants 2 to 6, it is to be noted that the very oral testimony of PW1 viz., the widow, that her sons and daughters have already got **M.A.C.A.1408/2012 & 412/2016** 12 married and living along with their respective families would undoubtedly reveal that they could not be said to have been depending on the deceased at the time of his accidental death. At any rate, the respondents did not adduce any evidence to show that respondents 2 to 6 were actually dependent on deceased Cleatus for their maintenance. In such circumstances, going by the dictum laid down by the Apex Court in **Sarla Verma's** case, 1/3 of the income of the deceased ought to have been deducted towards personal expenses while assessing the compensation for loss of dependency. But, the question to be looked into in this case is whether taking into account the aforesaid aspects, the impugned award is to be interfered with. 8.Taking into account all the aforesaid aspects, we are of the view that while declining to condone the delay in M.A.C.A.No.412/2016 and dismissing M.A.C.A.No.412/2016 in consequence thereof, it is only proper and just in the interest of justice to refrain from interfering with the judgment and decree at the instance of the insurer for the reason that the amount awarded as per **M.A.C.A.1408/2012 & 412/2016** 13 the impugned judgment and award cannot be said to be exorbitant. The upshot of the discussions is that the former appeal has to fail and the application for condonation of delay in filing the latter appeal also has to be dismissed. Accordingly, M.A.C.A.No.1408/2012 is dismissed. C.M.Appln.No.521/2016 in M.A.C.A.No.412/2016 seeking condonation of delay is dismissed and consequently, M.A.C.A.No.412/2016 is also dismissed. In the circumstances, there will be no order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/K. P. JYOTHINDRANATH (JUDGE)** **spc/sv** **M.A.C.A.1408/2012 & 412/2016** 14 **C.T. RAVIKUMAR, J.** **M.A.C.A.1408/2012 & 412/2016** 15 **JUDGMENT September, 2010**