United India Insurance Co. Ltd. v. Syamala Vadakkekandi and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` TUESDAY, THE 31[ST] DAY OF JANUARY 2023 / 11TH MAGHA, 1944 ``` ## **`MACA NO. 1103 OF 2017`** ## **`AGAINST THE AWARD DATED 04.10.2016 IN OP(MV) 977/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI`** ## **`APPELLANT:`** ``` UNITED INDIA INSURANCE CO.LTD, BRANCH OFFICE, GROUND FLOOR, KDC BANK BUILDING, MAIN ROAD, KUNNAMANGALAM, KOZHIKODE, REP. BY REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM COCHIN- 682 011 ``` ``` BY ADV PREETHY R. NAIR ``` ## **`RESPONDENTS:`** - `1 SYAMALA VADAKKEKANDI, AGED 45 YEARS, W/O LATE RADHAKRISHNAN VADAKKAKANDI HOUSE` - `2 ANJU VADAKKEKANDI, AGED 22 YEARS, D/O LAE RADHAKRISHNAN` - `3 AMITH VADAKKEKANDI, AGED 21 YEARS, D/O LAE RADHAKRISHNAN` - `4 ITTYEKKI VADAKKEKANDI, AGED 66 YEARS, W/O KEERAN, M/O LATE RADHAKRISHNAN (ALL ARE RESIDING AT VADAKKEKANDI HOUSE, KARAKUNNU, VIA MANJERI, MAMAPPURAM DIST, PIN- 676 123)` - `*5 MUHAMMED IQBAL, S/O KUNHALANKUTTY, VAKKUNDIL (H) ,VADASSERY,PERAKAMANNA AMSOM DESOM,PANNIPPARA,MALAPPURAM` - `*6 SHAIBUDHEEN, S/O MARIYAM, THAZHATHETHIL (H) P.O., AMBALVAYAL, WAYANAD DISTRICT – 673 593.` ``` (ADDL RESPONDENTS 5 AND 6 ARE IMPLEADED AS PER ORDER IN IA NO.1/2022 DATED 31.01.2023) ``` ``` BY ADVS. SRI.P.VENUGOPAL (1086/92) MUHAMMED YASIL M.A.AHAMMAD SAHEER(K/829/2013) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 1103/17 2 ## **`JUDGMENT`** The United India Insurance Company Ltd., which admittedly insured the offending vehicle involved in the accident projected in this case, is the appellant. 2. On 28.12.2009, at about 8.45 p.m., late Radhakrishnan was hit by a Motor Cycle driven by the 5th respondent and after the hospitalization of nearly five days, he succumbed to the injuries. Respondents 1 to 4 – who are his wife, children and mother – filed OP(MV) No.977/2011 before the Motor Accidents Claims Tribunal, Manjeri, (Tribunal for short hereinafter) seeking compensation of Rs.10,76,000/-, but limiting it to Rs.10 Lakhs; which has now been allowed by the said Tribunal, granting an amount of Rs.21,39,000/- under various heads. 3. The appellant impugns the Award on various grounds, but primarily that: a) The compensation awarded is excessive; and b) They ought to have been granted the right to recover the amounts awarded from the 5th respondent, since he did not MACA 1103/17 3 have a valid driving license at the time of the accident. 4. Smt.Preethy R. Nair – learned counsel for the appellant, argued that the evidence on record would establish that the 1st respondent did not have valid license at the time of the accident; but that the Tribunal did not consider this, solely relying on Ext.A3 Charge Sheet settled by the Investigating Officer, wherein, no such record had been indited. She submitted that this is wrong because, when her client came to be aware that the 5th respondent did not have a valid license, an application was made before the Tribunal asking him to produce the same, but he chose not to do so, in spite of service, thus rendering an adverse inference against him inescapable. She submitted that, therefore, on that ground, this Appeal is deserving of being allowed. 5. Coming to the second limb of her argument, Smt.Preethy R. Nair submitted that the Tribunal has erred in having granted large sums as compensation to the respondents under various heads, including ‘Funeral Expenses’, ‘Loss of Consortium’, ‘Loss of Dependency’ and ‘Loss of Estate’. She explained that in National Insurance Company Ltd. v. Pranay Sethi MACA 1103/17 4 [2017 (4) KLT 662 (SC)], the Honourable Supreme Court has made it clear that ‘Funeral Expenses’ cannot be granted in excess of Rs.15,000/-, but that the Tribunal has granted Rs.25,000/-, though the respondents claimed only the former figure. 6. As regards ‘Loss of Love and Affection’ and ‘Loss of Consortium’, the learned counsel submitted that, going by the various judgments of the Honourable Supreme Court, including New India Assurance Company Ltd. v. Somwati and Others [(2020) 9 SCC 644], United India Insurance Company Ltd. v. Satinder Kaur @Satwinder Kaur and Others [2020 (3) KHC 760 (SC)] and Pranay Sethi (supra), only Rs.40,000/- each could have been awarded to the dependents of the deceased under both these heads and that the Tribunal has erred in having awarded Rs.4,50,000/-. 7. Coming to the head ‘Loss of Estate’, Smt.Preethy R. Nair pointed out that Pranay Sethi (supra) makes it luculent that only Rs.15,000/- could have been granted; while assessment of ‘Loss of Dependency’ by the Tribunal is grossly incorrect. She pointed out that the accident took place in the year 2009 and that MACA 1103/17 5 the income which could have been reckonable for the deceased, going by Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], could only have been Rs.7,000/-, while the Tribunal has taken it as Rs.8,800/-. She then submitted that, to make matters worse, the Tribunal added 30% future prospects to the afore sum and deducted only 1/5 towards personal and living expenditure of the deceased, which are both contrary to the ratio in Pranay Sethi (supra). She thus prayed that the impugned Award, to the extent assailed, be set aside. 8. Sri.Muhammed Yasil – learned counsel appearing for the 5th respondent - who is admittedly the driver of the motor cycle which caused the accident - submitted that there is no evidence to show that his client did not have valid license at that time. However, to a pointed question from this Court, he submitted that he is not in a position to produce his client’s driving license, but argued that this is unnecessary because, as long as there was no contest to Ext.A3, which is the Charge Sheet settled by the Investigating Officer, no such case could have been MACA 1103/17 6 impelled by the appellant – Insurance Company. 9. Sri.P.Venugopal – learned counsel appearing for respondents 1 to 4, submitted that the deceased Radhakrishnan, was very young at the time of his death, leaving behind a distraught family of two young minor children. He argued that, therefore, the compensation awarded by the Tribunal is without error and prayed that this Appeal be dismissed; however, adding that, with respect to the claim of the Appellant for pay and recovery from the 5th respondent, he has no comment to make. 10. I have evaluated the afore submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the parties with specific consent that this Appeal can be disposed of on its basis. 11. It is without contest or dispute that the accident happened and that Radhakrishnan died, consequent to the injuries sustained. His injuries are also not in dispute, nor are the documents with respect to the medical treatment and such other. 12. Smt.Preethy R. Nair, as I have already said above, disputes the compensation awarded, as also the denial of the MACA 1103/17 7 Tribunal to grant her client the liberty to recover compensation from respondents 5 and 6. 13. I shall first deal with the issue relating to the order of pay and recovery as sought for by the appellant. 14. The impugned Award clearly shows that a contention was raised by the appellant, even in their counter pleadings, that the 5th respondent – rider of the vehicle, did not have a valid driving license at the time of the accident. However, they did not choose to lead any evidence to establish the same and the Tribunal relied upon Ext.A3 Charge Sheet, in which there was no such mention. However, as I have already said above, the learned counsel for the 5th respondent, even to a pointed question from this Court, has been unable to say whether his client had a valid license at the time of accident and he has also disclosed his inability to produce the same before this Court. Obviously, therefore, there is some merit in the contentions of the appellant and I am certain that they should be given an opportunity to prove it, which can be done only through an order remitting the matter to the Tribunal to such extent by this Court. MACA 1103/17 8 15. That said, coming to the compensation awarded, as earlier recorded, the submissions of Smt.Preethy R. Nair are regarding the amounts awarded by the Tribunal under the heads ‘Funeral Expenses’, ‘Loss of Love and Affection’, ‘Loss of Consortium’, ‘Loss of Estate’ and ‘Loss of Dependency’. 16. I will deal with each of the afore heads presently; a) ‘Funeral Expenses’: The Tribunal has awarded Rs.25,000/- against the claim of Rs.15,000/-; and I am certain that this is contrary to the ratio in Pranay Sethi (supra), which confines compensation in the head to the extent of the former amount. This contention of the appellant, therefore, has to be acceded to. b) ‘Loss of Love and Affection’ and ‘Loss of Consortium’: Smt.Preethy R. Nair argues that both these heads cannot travel together and she relies on Somwati (supra), Satinder Kaur ( supra) and Pranay Sethi (supra) in substantiation. I have examined the afore precedents and it is indubitable that the ratio settled is that ‘Loss of Consortium’ is embedded in ‘Loss of Love and Affection’ and cannot be given separately. Further, the said judgments, for MACA 1103/17 9 the purpose of uniformity in the award of compensation, has held that the maximum amount that can be given to a dependent under the afore two heads has to be limited to Rs.40,000/- each. Obviously, therefore, grant of Rs.4,50,000/- under the afore two heads cannot find my favour and I reduce it to Rs.1,60,000/-, taking note of the fact that late Radhakrishnan left behind four dependents. c) ‘Loss of Estate’: Pranay Sethi (supra) renders it without doubt that the maximum that can be granted under this head is Rs.15,000/-, but the Tribunal has granted Rs.1,00,000/-. This will have to be revised. d) (i) ‘Loss of Dependency’: It is under this head that the appellant impels maximum force. They say that the income of late Radhakrishnan has been wrongly reckoned and that the ‘future prospects’ applied is also in error. Added to this, they contend that an amount equal to 1/4 ought to have been reduced towards personal and living expenditure of the deceased, in modification of 1/5, as has now been adopted by the Tribunal. ii) As regards the income of late Radhakrishnan is MACA 1103/17 10 concerned, no doubt, going by Ramachandrappa (supra), a person whose income is unascertainable in the year 2009 can only be favoured with a notional income of Rs.7,000/-. However, even though the Tribunal has correctly held that Ext.A7-Income Certificate of late Radhakrishnan has not been properly proved, Ext.A1 mentions that he was working as a workshop Mechanic at Manjeri. This is not contested by the appellant and I am, therefore, of the firm view that the Tribunal did not err in any manner while holding that, going by the wage pattern in Kerala during the year 2009, a workshop Mechanic would be getting at least Rs.400/- per day and that reckoning 22 days work in a month, his salary could be safely fixed as Rs.8,800/-. I do not propose to modify this at all because it has also been held by the Honourable Supreme Court in various judgments, including in Ranjini v. Oriental Insurance Company Ltd. [2022 (5) KLT Online 1012] which was settled in the case of agriculturists and other expert avocations, a robust view ought to be taken; and hence, the assessment of income of Rs.8,800/- is certainly without mistake. MACA 1103/17 11 iii) That said, however, there is force in the submissions of Smt.Preethy R. Nair, that the future prospects, going by Pranay Sethi (supra), could have been taken only at 25%, while the deduction towards personal living and expenditure ought to have been to the extent of 1/4. In such perspective, certainly, compensation awarded under these heads will have to be revised. 17. Before I close, I must also advert to a further submission of Smt.Preethy R. Nair, that the amount granted by the Tribunal under the head ‘Pain and Suffering’, of an amount of Rs.15,000/-, is incorrect because it has been settled that, in the case of the death of the victim, no such can be granted to the dependents. I do not, however, propose to consider this contention for the reason that the amount awarded is exiguous, as also because the deceased was in hospital for at least five days, which is undisputed. In the afore circumstances, I allow this Appeal with the following directions: a) The compensation eligible to respondents 1 to 4 is modified to be Rs.16,02,037/-, along with interest at the rate MACA 1103/17 12 fixed by the Tribunal. b) As far as the plea of the Appellant for recovery from respondents 5 and 6 is concerned, I remit the matter to the Tribunal for fresh consideration; during which process, the parties will be given sufficient opportunity of leading evidence and marking documents, however, confined to this issue and no more. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ```