The Oriental Insurance Company Ltd. v. Sheeba and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 ``` ## **`MACA NO. 2288 OF 2015`** ``` AGAINST THE AWARD IN OP(MV)NO.334/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR ``` ## **`APPELLANT:`** ``` THE ORIENTAL INSURANCE CO.LTD. KOTTARAKKARA, REPRESENTED BY ITS AUTHORISED SIGNATORY, THE ORIETNAL INSURANCE CO.LTD., REGIONAL OFFICE ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI - 18. BY ADV SRI.A.R.GEORGE ``` ## **`RESPONDENTS:`** ``` 1SHEEBA AGED 36 YEARS W/O.BALAGOPALAN, SHAJI BHAVANAM, KAKKODE P.O., PUNALUR - 691 331. 2AKSHAY 9MINOR-NOW AGED 9 YEARS) -DO- -DO-. 3RETNAMMA AGED 71 YEARS MURUGA MANDIRAM, AREEPLACHI P.O., KURUVIKONAM - 691 333. 4ANILKUMAR K.V. S/O.K.K.VASU, SREEBHAVAN, KURUVIKONAM, NEDIYARA P.O., ANCHAL - 691 306. (2ND RESPONDENT - MINOR REPRESENTED BY HIS NEXT FRIEND - MOTHER THE 1ST RESPONDENT). BY ADVS. SRI.ANCHAL C.VIJAYAN SRI.M.T.SURESHKUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`MACA NO. 2288 OF 2015 2`** ## **`JUDGMENT`** This matter is of the year 2015 and has not been admitted. However, both sides are _ad idem_ that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. I, therefore, admit this Appeal and proceed to dispose it of finally, with the consent of both sides. 2. The Oriental Insurance Company Limited – which is the appellant in this case – impugns the Award of the Motor Accidents Claims Tribunal, Punalur (‘Tribunal’, for short) in OP(MV)No.334/2009, specifically and solely on the ground that the incident which killed the deceased – Balagopalan, was not an accident, but a deliberate action of the driver of the offending vehicle. 3. Sri.A.R.Geroge – learned counsel for the appellant, pointed out that the details of the incident, as proved before the Tribunal, would clearly show that the driver of the offending vehicle drove with the intent to kill the claimant and that he has been charged under Section 302 of the Indian Penal Code (IPC). He argued that, therefore, when the incident is not an accident, which was caused on account of the rash and negligent driving of the driver, but ## **`MACA NO. 2288 OF 2015 3`** was guided by his intent to kill, no liability under the insurance policy issued by his client for the said vehicle can be fastened upon them. He thus prayed that this Appeal be allowed. 4. Sri.A.R.George thereafter submitted that the compensation awarded by the Tribunal is very excessive and that it has proceeded to award sums under heads which are not permissible. He, therefore, alternatively prayed that if this Court is to find that the conclusion of the Tribunal regarding the accident is acceptable, then the amount of compensation be reduced appositely. 5. In response, Sri.Anchal C.Vijayan – learned counsel appearing for respondents 1, 2 and 3, argued that the afore assertions of the Insurance Company are factually incorrect, because Ext.A1 - FIR and FIS and Ext.A6 – Final Report settled by the Police would show that the driver of the offending vehicle intended to kill another person; but that, in the accident which occurred in attempted fructification of the same, Balagopalan was unfortunately killed. 6. Sri.Anchal C.Vijayan argued that, therefore, as far as Balagopalan or his legal heirs are concerned, the cause of his death was nothing but an accident because, even going by the admitted facts and the asserted contentions of the appellant - Insurance Company, the driver of the offending vehicle had no intent to kill him ## **`MACA NO. 2288 OF 2015 4`** in any manner whatsoever. He thus contended that the findings of the learned Tribunal are without error. 7. Sri.M.T.Sureshkumar – learned counsel appearing for the 4[th] respondent, who was the driver of the vehicle, submitted that the findings in Ext.A6 against his client are completely baseless and that trial is still pending. He submitted that he is, therefore, reserving further comments. 8. When I consider the afore rival submissions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute - it is indubitable that, even going by the statements in Ext.A1 – FIR and FIS, the 4[th] respondent was alleged to have driven his vehicle with the deliberate intent of killing a certain Sri.Biju. However, in such an effort, it is alleged that Balagopalan was killed, because the vehicle rammed into him. These facts are corroborated by Ext.A6 – Final Report, which charged the 4[th] respondent under Section 302 of the IPC, but concluded unequivocally that the intent of the 4[th] respondent was not to kill Balagopalan, but a person by name Sri.Biju. 9. Obviously, as far as late Balagopalan and his legal heirs ## **`MACA NO. 2288 OF 2015 5`** are concerned, the incident is an accident which led to his death because, admittedly, there was no intention on the part of the 4[th] respondent to kill him and no _mens rea_ as has been alleged. 10. In any event, the arguments of the appellant are based on the sole fact that, in Ext.A6 – Final Report, the Police have charged the driver of the offending vehicle under Section 302 of the IPC. This has little effect on the claim of the legal heirs of Balagopalan, when the said document expressly records that the driver had no intention to kill Balagopalan and that his death occurred as an accident when he executed his plan to murder the aforementioned Sri.Biju. 11. It being so concluded, since the appellants have now raised an objection regarding the compensation awarded by the Tribunal, I propose to examine it; also invoking the powers of this Court under Order XLI Rule 33 of the Code of Civil Procedure (CPC), even though no Cross Objections have been filed. This is more so because, this appeal, as I have said above, has been pending for the last eight years, without being even admitted; and it is with the consent of both sides that it is being formally admitted today and proceeded to be disposed of. It thus becomes incumbent upon this Court to consider the adequacy of the compensation, both from the angle of contentions of the appellants as also under the afore provision of the ## **`MACA NO. 2288 OF 2015 6`** CPC. I record that Sri.A.R.George did not oppose this course. 12. On the contention of the appellant, that the compensation awarded to the claimants is excessive, I notice that the learned Tribunal has adopted the notional income of the deceased to be only Rs.4,000/- per month. This is because, it found that even though the claimants had claimed Rs.15,000/- per month as the income of the deceased, it has not been properly proved. I find favour with this, but in such event, the Tribunal ought to have then followed _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],**_ which postulates that the minimum income eligible to a person with unascertainable income in the year 2006 – when the accident occurred - is Rs.5,500/-. An amount equal to 40% should have been added as future prospects and 1/3rd of it ought to have been reduced towards personal expenses, since he is survived by a family of three. 13. That said, the argument of Sri.A.R.George that no amount could have been granted under the head ‘Loss of Love and Affection’ is certainly compelling on account of the judgment of the Hon’ble Supreme Court in _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780]**_ ; but the amounts granted by the Tribunal under the head ‘Loss of Estate’ and ## **`MACA NO. 2288 OF 2015 7`** ‘Loss of Consortium’ are both inadequate, when one follows the ratio in _**National Insurance Company Ltd. v. Pranay Sethi [2017 (4)**_ _**KLT 662].**_ It has been postulated by the Hon’ble Supreme Court that the compensation for ‘Loss of Estate’ should be a minimum of Rs.15,000/-; and for ‘Loss of Consortium’, Rs.40,000/- each for the claimants, who are all admittedly dependent on the deceased. In the afore circumstances this appeal is disposed of in the following manner: (a) This appeal is dismissed as regards the contention of the appellant that the learned Tribunal has erred in finding that the incident which killed Sri.Balagopalan is not an accident and thus confirming all such conclusions. (b) The compensation under the head ‘Loss of Love and Affection’ is deleted. (c) The compensation under the head ‘Transportation Charges and Funeral Expenses’ is reduced to Rs.20,000/- reckoning Rs.5000/towards ‘Transportation Expenses’ and Rs.15,000/- towards ‘Funeral Expenses’, as authorized by _**Pranay Sethi (Supra)**_ (d) The compensation under the head ’Loss of Consortium’ is enhanced to Rs.1,20,000/- from Rs.1,00,000/-, as awarded by the Tribunal. ## **`MACA NO. 2288 OF 2015 8`** (e) The compensation under the head ‘Loss of Estate’ is enhanced to Rs.15,000/- from Rs.5,000/-, being guided by _**Pranay Sethi (Supra).**_ (f) The compensation under the head ‘Pecuniary Loss caused by the death of the deceased’, coupled with dependency is enhanced to Rs.9,85,600/- adopting the notional income of the deceased to be Rs.5,500/-, with 40% future prospects added to it and 1/3rd deducted towards his personal expenses. ## **Sd/-** ## **`DEVAN RAMACHANDRAN`** ``` JUDGE ``` ## **`MC`**