The Oriental Insurance Co. Ltd. v. RAMLA @ RAMLATH and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 13TH DAY OF DECEMBER 2019 / 22ND AGRAHAYANA, 1941** ## **MACA.No.3418 OF 2016 (F)** **AGAINST THE AWARD IN O.P.(MV) NO.120/2011 DATED 26-07-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/3RD RESPONDENT:** **THE ORIENTAL INSURANCE CO.LTD., THODUPUZHA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICER, ERNAKULAM NORTH, KOCHI-18.** **BY ADVS. SMT.K.S.SANTHI SRI.ALEXY AUGUSTINE SMT.LATHA SUSAN CHERIAN** ## **RESPONDENTS/CLAIMANTS & RESPONDENTS 1 & 2:** - **1 RAMLA @ RAMLATH, W/O.DECEASED ASSAIN MAANCHERI, MAANCHERI HOUSE, PERAKAMANNA, EAST CHATHALLUR, EDAVANNA, MALAPPURAM DISTRICT.** - **2 SINSARUL HAQUE (MINOR), S/O.DECEASED ASSAIN MAANCHERI, MAANCHERI HOUSE, PERAKAMANNA, EAST CHATHALLUR, EDAVANNA, MALAPPURAM DISTRICT.** - **3 SINSILA NASRIN M. (MINOR), D/O.DECEASED ASSAIN MAANCHERI, MAANCHERI HOUSE, PERAKAMANNA, EAST CHATHALLUR, EDAVANNA, MALAPPURAM DISTRICT.** - **(RESPONDENTS 2 & 3 ARE MINOR AND ARE REPRESENTED BY THEIR MOTHER GUARDIAN 1ST RESPONDENT).** - **4 MARIYA KUTTY W/O.KAMMU KURIKAL, MAANCHERI HOUSE, PERAKAMANNA, EAST CHATHALLUR, EDAVANNA, MALAPPURAM DISTRICT.** MACA.No.3418 OF 2016 (F) 2 **5 NISHAD PARATHODIKA S/O.USMAN, PARATHODIKA HOUSE, CHANDAKUNNU P.O., NILAMBUR. 6 MOOSA ELAYAD NILAMBUR R.S.(P.O.) NILAMBUR, AYYARPOYIL, ELAYAD HOUSE. BY ADVS. R1 & R4 BY ADV. D.KESAVAN NAIR R1 & R4 BY ADV. P.M.GIRIJAVALLABHAN R2 BY ADV. SRI.K.C.ANTONY MATHEW R5 & R6 BY ADV. P.SAMSUDIN R5 BY ADV. JITHIN LUKOSE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.3418 OF 2016 (F) 3 ## JUDGMENT The Insurance Company has impugned the award of the learned Motor Accidents Claims Tribunal, awarding compensation of Rs.18,72,500/- to the claimants who filed a claim petition on account of the death of a bread earner, i.e., husband of the 1[st] respondent, father of the 2[nd] and 3[rd] respondents, whereas son of the 4[th] respondent. 2. Deceased Assian Manjeri, while riding a motor cycle, on 30.11.2009 at about 7.45 hrs., through the Edavanna-Nilambur public road, a Tipper Lorry bearing registration No.KL-10/Y 8555, driven by the 5[th] respondent in the OP(MV), which was driven in front of his motorcycle, applied sudden break in a rash and negligent manner as a result of it dashed into the motorcycle and another tipper lorry bearing registration No.KL-10/AA-4012, coming from behind at that time. He was crushed in the accident and died at the spot itself. 3. Before the Tribunal, the owner and and driver did not file any written statement whereas the appellant/3[rd] respondent insurance company filed written statement admitting the insurance coverage of the Tipper Lorry, at the MACA.No.3418 OF 2016 (F) 4 time of the accident, however, denied the negligence alleged in the petition as well as the accident, attributed the accident only due to the rash and negligent driving of the deceased. Objections of breach of terms and conditions of the insurance policy as well as the validity, genuineness of the driving licence was also taken. 4[th] respondent remained ex-parte. The 5[th] respondent, who is the owner of lorry bearing registration No.KL-10/Y-8555 contested the petition through written statement, but did not admit the negligence as attributed to the deceased. The 3[rd] respondent insurance company opposed the petition on the very same grounds. The Tribunal framed the following issues:- “(i) Whether the accident was caused due to the rash or negligent driving of the Tipper Lorry bearing registration number KL-10/AA-4012 by the 1[st] respondent? (ii) Whether the accident was caused due to the rash or negligent driving of the Tipper Lorry bearing registration number KL-10/Y-8555 by the 4[th] respondent. (iii) Whether the petitioners are entitled to get compensation? And if so, what is the quantum? (iv) What award as to reliefs and costs?” 4. The claimants, in support of their claim, brought on record, Exts.A1 to A11 documents such as - copy of First Information Report, Post-mortem Report, Death Certificate, Surviving Family Membership Certificate, Birth Certificates, MACA.No.3418 OF 2016 (F) 5 certificate dated 25.12.2009, Final Report, Death Certificate, Election Identity Card and Legal Heirship Certificate, respectively. On the other hand, the insurance company produced Ext.B1 insurance policy. Considering all aspects including the nature of the accident, age and avocation of the deceased, the Tribunal assessed the compensation under various heads as follows:- |Sl.<br>No.|Head of claim|Amount<br>Claimed (in<br>rupees)|Amount<br>Awarded (in<br>rupees)|Basis-<br>vital<br>details<br>in a nut<br>shell| |---|---|---|---|---| |1|Transport to hospital|Nil|1,500/-|| |2|Funeral expense|10,000/-|25,000/-|| |3|Pain and suffering|25,000/-|Nil|| |4|Loss of estate|25,000/-|1,00,000/-|| |5|Loss of consortium|1,00,000/-|1,00,000/-|| |6|Loss of love and<br>affection|50,000/-|3,50,000/-|| |7|Compensation for<br>loss of support|50,000/-|Nil|| |8|Loss of dependency|4,40,000/-|12,96,000/-|| ||**Total Rs.7,00,000/- (Claim**<br>**limited to Rs.6,00,000/-)**||**Rs.18,72,500/-**|| 5. Smt. K.S. Santhi, the learned counsel appearing on behalf of the insurance company submitted that the Tribunal has not committed any illegality or perversity in not granting 3[rd] party rights as the driver of the offending lorry bearing MACA.No.3418 OF 2016 (F) 6 registration No. KL-10/AA-4012 was not holding an effective driving licence which has been proved through Ext.A8 charge sheet whereby the Police found that he was not possessing a driving licence. It tantamount to discharging the onus as no other separate evidence was required to be lead or produced. The other ground of attack is the quantum. The compensation against the head of loss of consortium and loss of estate are not in accordance with the law laid down in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] and no yardstick or barometer has been taken into account for awarding a sum of Rs.3,50,000/- under the head loss of love and affection. The deceased was a self employed. Ext.A7, the alleged certificate produced on record purportedly reflecting the deceased working in a firm was not proved in accordance with law. Therefore, 50% future prospects ought not to have been taken but as 40%. 6. Per contra, Sri.Girija Vallabhan, the learned counsel appearing on behalf of the claimants, refuting the objections raised by the insurance company, submits that the compensation in terms of money cannot bring back the life to the deceased and the loss is irrecoverable. Any amount of compensation awarded is only a temporary relief and nothing MACA.No.3418 OF 2016 (F) 7 beyond. Though he did not dispute the parameters and principles culled out in Pranay Sethi's case (supra), the income t aken was on a lesser side as the deceased was aged 35 years at the time of his death. The Tribunal had also taken into account the income part and by taking the aid of Order 41 Rule 33 of Code of Civil Procedure, though the strict principles of Code of Civil Procedure would not apply and in the absence of any cross appeal the compensation awarded can be examined by this court and prayed for dismissal of appeal of insurance company. 7. Having heard the learned counsel appearing on both sides and appraising the paper books on records, am of the view that it is a fit case where the award amount is liable to be modified and appeal of insurance company qua certain submissions while keeping in view principles laid down in Pranay Sethi's case (supra) . 8. The compensation under the head loss of estate is liable to be fixed as Rs.15,000/-, resulting a deduction of Rs.85,000/- (1,00,000-85,000). Under the head loss of consortium, the Tribunal awarded a sum of Rs.1,00,000/which will stand reduced to Rs.40,000/-, resulting in a deduction of Rs.60,000/- (1,00,000 - 60,000). Towards funeral MACA.No.3418 OF 2016 (F) 8 expenses, the Tribunal awarded a sum of Rs.25,000/- which is also on the higher side and it is re-fixed as Rs.15,000/resulting in a deduction of Rs.10,000/- under that head. 9. While dealing with the question of loss of love and affection, no doubt, that there is no yardstick for assessing the compensation as the loss is recoupable and any amount of compensation awarded, keeping in view the status of the family of the deceased belonged to, would be less. But I cannot remain unmindful of the fact that in the Constitution Bench judgment in Pranay Sethi's case (supra) no such compensation in the aforementioned head has been awarded. Equally so, 50% of future expenses in the absence of any proof, cannot be sustained. Accordingly, the award of the Tribunal is modified under the above heads as well. 10. Considering the peculiar facts and circumstances of the case, under the head loss of dependency, I take monthly income as Rs.6,000/- and add 40% towards future expenses by applying the multiplier of 16, as the deceased was aged 35 years at the time of the accident and by taking the ¾ reduction, the compensation would come to Rs.12,09,600/The Tribunal awarded a sum of Rs.12,96,000/- under the head loss of dependency. In the result, there shall be a reduction of MACA.No.3418 OF 2016 (F) 9 ## Rs.86,400/- (12,96,000 - 12,09,600). In the result, the appeal stands disposed of with the aforementioned modifications, fixing the total amount of compensation at Rs.16,31,100/-. The appellant insurance company was directed to deposit 50% of the award amount before the Tribunal within a period of two months, vide interim order dated 01.11.2016, issued by this Court. The rest of the amount of compensation of Rs.6,94,850/- (16,31,100 - 9,36,250) (Rupees Six lakhs ninety four thousand eight hundred and fifty only) is ordered to be deposited along with interest at the rate fixed by the Tribunal within a period of two months. The sum of Rs.25,000/- (Rupees Twenty five thousand only) deposited along with the appeal is ordered to be remitted to the Tribunal for transferring to the claimants. Sd/AMIT RAWAL, JUDGE Skk//091219/2201202