United India Insurance Co. Ltd. v. Lakshmi, Janeesh M. and A.T.K. Enterprises

1 MACA No.3157 of 2015 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 MACA NO. 3157 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 440/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD APPELLANT/S:** THE UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, VADAKARA, REPRESENTED BY THE DEPUTY MANAGER, OFFICE OF THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., HOSPITAL ROAD, ERNAKULAM. BY ADV SMT.DEEPA GEORGE ## **RESPONDENT/S:** 1 LAKSHMI AGED 55 YEARS W/O. LATE AYYAPPAN, MAVULLIPARAMBIL HOUSE, SREEKRISHNAPURAM P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT-678001. 2 JANEESH M. AGED 29 YEARS S/O. BABU T.P., PARAMBATH VEEDU, UMMANCHIRA, THALASSERY, KANNUR DISTRICT-670001, DRIVER OF KL58-A-6709 MINI LORRY. 3 THE MANAGING PARTNER A.T.K.ENTERPRISES, KANAK COMPLEX, KAYYATH ROAD, THALASSERY, KANNUR DISTRICT-679532 (OWNER OF KL 58-A-6709 MINI LORRY). BY ADV SRI.T.K.SANDEEP **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.3157 of 2015 ## **C.S.DIAS, J. ====================== MACA No.3157 of 2015** ## **====================== Dated this the 3[rd] day of September, 2021.** ## **JUDGMENT** The appellant - insurer was the third respondent in OP(MV) No.440/2012 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents in the appeal were the petitioner and respondents 1 and 2 before the Tribunal. 2. The first respondent had filed the claim petition under section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of her daughter, Radhika (deceased) in an accident on 16.3.2012. 3. It was the case of the first respondent in the claim petition that, on 16.3.2012, while the deceased was travelling with her husband on a motor cycle bearing registration No.KL-9/M 3577 from 3 MACA No.3157 of 2015 Sreekrishnapuram to Taluk Hospital, Mannarkad, when they reached near Ariyur bridge, a mini lorry bearing registration No.KL 58/A 6709 (lorry), driven by the second respondent in a rash and negligent manner, hit the motor cycle. The deceased and her husband died on the spot. The lorry was owned by the third respondent and insured with the appellant. The first respondent stated that the deceased was a rubber tapper by profession and earning an income of Rs.300/- per day. The first respondent was the sole dependent of the deceased. She claimed a total compensation of Rs.14,44,500/- from the appellant, which was limited to Rs.10,00,000/-. 4. Even though the second respondent entered appearance, no written statement was filed. The third respondent did not contest the proceeding and was set ex parte. 5. The appellant - insurer filed a written- 4 MACA No.3157 of 2015 statement refuting the allegations in the claim petition. The appellant contended that the accident occurred due to the negligence of the rider of the motor cycle/the husband of the deceased. The appellant also disputed the age, income and occupation of the deceased. Nevertheless, the appellant admitted that the lorry had a valid insurance coverage. 6. The parents in law of the deceased filed OP (MV) 439/2012 before the same Tribunal, claiming compensation for the death of the deceased's husband. The Tribunal consolidated and jointly tried the original petitions. 7. The first respondent and a witness were examined as PWs 1 and 2 and Exts A1 to A12 were marked in evidence. The respondents did not let in any evidence. 8. The Tribunal allowed the claim petition filed by the first respondent, by directing the appellant to pay 5 MACA No.3157 of 2015 the first respondent an amount of Rs.7,63,000/- with interest at the rate of 9% per annum from the date of petition till the date of realization and proportionate costs. 9. Aggrieved by the said award, the appellant – insurer is in appeal. 10. Heard; Smt.Deepa George, the learned Counsel appearing for the appellant/insurer and Sri.Sandeep T.K, the learned counsel appearing for the first respondent/petitioner. 11. The principal grounds of challenge in the memorandum of appeal are (i) the notional income fixed by the Tribunal is on the higher side, (ii) the Tribunal ought not to have granted future prospects, and (iii) there is no evidence to prove that the first respondent was a dependent of the deceased. ## **Ground No.(i)** 12. The first respondent had averred in the claim 6 MACA No.3157 of 2015 petition that the deceased was a rubber tapper by profession and earning an amount of Rs.300/- per day. The Tribunal fixed the notional income of the deceased at Rs.3,000/- per month. 13. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the above parameter and taking into account the fact that the accident occurred in the year 2012, I do not find any ground to hold that the notional income fixed by the Tribunal is on the higher side. Therefore, I confirm the said finding. ## **Ground No.(ii)** 15. The next ground is with regard to awarding of future prospects. 16. In **Sarla Verma v. Delhi Transport** 7 MACA No.3157 of 2015 **Corporation [(2009) 6 SCC 121]** , the Hon'ble Supreme Court has held that the dependents of the deceased are also entitled to future prospects at the rate of 40% in the case of self employed persons. 17. Even though the Tribunal has awarded future prospects at 50%, taking into consideration the fact that the notional income fixed by the Tribunal is on the lower side, when compared with the benchmark in **Ramachandrappa** (supra), I do not find any reason to interfere with the said finding. 18. In **New India Assurance Co., Ltd vs. Vineesh.J [(2018) 3 SCC 619],** the Hon'ble Supreme Court has held that variation of four to five per cent in enhancement of compensation is permissible. In the peculiar facts and circumstances of this case, I confirm the finding of the Tribunal that the first respondent is entitled for future prospects at 50%. 8 MACA No.3157 of 2015 ## **Ground No.(iii)** 19. Now coming to the third ground whether the first respondent is a dependent of the deceased. 20. The first respondent was examined as PW2 who produced and proved Ext A12 relationship certificate. The said certificate proves that the first respondent was a dependent of the deceased. The respondents have not let in any contra evidence. The uncontroverted oral testimony of PW2 read with Ext A12 establishes that she was the mother and a dependent of the deceased. With the undisputed materials available on record, I am of the considered opinion that the finding of the Tribunal that the first respondent is a dependent of the deceased is perfectly justifiable. Therefore, I answer ground No.(iii) also against the appellant. 21. On an overall re-appreciation of the pleadings and materials on record and the elaborate findings 9 MACA No.3157 of 2015 rendered by the Tribunal after a threadbare analysis of the facts and materials on record, I do not find any error in the compensation amount arrived at by the Tribunal. 22. The Honourable Supreme Court in **New India Assurance Co. Ltd. vs. Kiran Sing & Ors. [2004 (AIR) SCW 4212]** has deprecated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. 23. It is to be borne in mind that the accident occurred on 16.3.2012. It is nearly a decade that the poor mother of the deceased has been knocking at the doors of the Court seeking compensation. It is trite, that the Tribunals are permitted to do some guess work and also exercise their discretion in awarding reasonable and just compensation, for which there cannot be any strait jacket formula based on arithmetical exactitude. I 10 MACA No.3157 of 2015 find that the Tribunal has judicially exercised its powers based on the provisions in the Motor Vehicles Act, 1988 and the authoritative precedents of the Honourable Supreme Court while arriving at the conclusion. I do not find any justifiable ground in the memorandum of appeal warranting admission of the appeal, which will only be a wastage of judicial time and a harassment to the first respondent. In the result, following the ratio in **Kiran Sing** (supra), I hold that the appeal is devoid of any merit and does not warrant admission. Resultantly, I dismiss the appeal at the threshold. **Sd/-** **C.S.DIAS** SKS/3.9.2021 **JUDGE**