United India Insurance Company Limited v. Bhinimol K.S. and others

MACA No.3141 of 2014 & C.O. No.164 of 2016 1 # IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 16[TH] DAY OF JULY 2021 / 25TH ASHADHA, 1943 ## MACA NO. 3141 OF 2014 AGAINST THE AWARD IN OP(MV) NO. 245/2010 DATED 3.3.2014 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA, KOZHIKODE ## APPELLANT/3RD RESPONDENT: UNITED INDIA INSURANCE COMPANY LIMITED VATAKARA NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI682011. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## RESPONDENTS/PETITIONERS & RESPONDENTS 1 AND 2 1 BHINIMOL K.S. W/O.LATE JAYESH, KANDAMCHALIL, MEETHAL HOUSE, NADUVATHOOR P.O., VIA KOYILANDY, KOZHIKODE, PIN 673320. 2 NANDHANA (MINOR) D/O.LATE JAYESH, KANDAMCHALIL, MEETHAL HOUSE, NADUVATHOOR P.O., VIA KOYILANDY, KOZHIKODE, REPRESENTED BY HER MOTHER AND LEGAL GUARDIAN 1ST RESPONDENT, PIN 673320. 3 KARUNAKARAN NAIR S/O.KANNAN NAIR, KANDAMCHALIL, MEETHAL HOUSE, NADUVATHOOR P.O., VIA. KOYILANDY, KOZHIKODE, PIN 673320. 4 JANAKI W/O.KARUNAKARAN NAIR, KANDAMCHALIL, MEETHAL HOUSE, NADUVATHOOR P.O., VIA. KOYILANDY, KOZHIKODE, PIN 673320. 5 JAYSAL MACA No.3141 of 2014 & C.O. No.164 of 2016 2 S/O.KUNJAHAMMED, 2/65(8/25), KUNIYIL HOUSE, CHELANNUR P.O., KOZHIKODE, PIN 673320. 6 SUDHAKARAN S/O.RAGHAVAN, 2/101, SUJEESH NIVAS, MUCHUKUNNU P.O., KOYILANDY, KOZHIKODE, PIN 673320. BY ADVS. FOR R1 TO R4 BY SRI.A.V.M.SALAHUDIN FOR R5 SRI.M.MUHAMMED SHAFI FOR R6 BY SMT.K.DEEPA (PAYYANNUR) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 16.07.2021 ALONG WITH CROSS OBJECTION/CROSS APPEAL NO.164 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.3141 of 2014 & C.O. No.164 of 2016 3 ## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 16[TH] DAY OF JULY 2021 / 25TH ASHADHA, 1943 ## CO NO. 164 OF 2016 AGAINST THE AWARD IN OP(MV) NO. 245/2010 DATED 3.3.2014 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA, KOZHIKODE PETITIONER/S: 1 BHINIMOL K.S. AGED 34 YEARS W/O. LATE JAYESH, AGED 34 YEARS RESIDING AT KANDAMCHALIL, MEETHAL HOUSE, NADUVATHOOR P. O, KOYILANDI (VIA), KOZHIKODE. 2 NANDHANA (MINOR) AGED 11 YEARS D/O. LATE JAYESH, AGED 11 YEARS, REPRESENTED BY HER MOTHER AND LEGAL GUARDIAN, BHINIMOL K.S.RESIDING AT KANDAMACHALIL, MEETHAL HOUSE, NADUVATHOOR P.O, KOYILANDI (VIA), KOZHIKODE. 3 KARUNAKARAN NAIR AGED 61 YEARS S/O. KANNAN NAIR, AGED 61 YEARS, RESIDING AT KANDAMACHALIL, MEETHAL HOUSE, NADUVATHOOR P.O, KOYILANDI (VIA), KOZHIKODE 4 JANAKI AGED 56 YEARS W/O. KARUNAKARAN NAIR, AGED 56 YEARS, RESIDING AT KANDAMACHALIL, MEETHAL HOUSE, NADUVATHOOR P.O, KOYILANDI (VIA), KOZHIKODE BY ADV SRI.AVM.SALAHUDIN ## RESPONDENT/S: 1 UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE, PB NO. 17, CITY TOWER, NEAR OLD BUS MACA No.3141 of 2014 & C.O. No.164 of 2016 4 STAND, MAIN ROAD, VATAKARA. 2 JAYSAL S/O. KUNJAHAMMED, AGE NOT KNOWN, RESIDING AT 2/65(8/25), KUNIYIL HOUSE, CHELANNUR (PO), KOZHIKODE. 3 SUDHAKARAN S/O, RAGHAVAN, AGE NOT KNOWN, RESIDING AT 2/201, SUGEESH NIVAS, MUCHUKUNNU (PO), KOYILANDY, KOZHIKODE. BY ADVS. FOR R1 BY SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW FOR R2 SRI.M.MUHAMMED SHAFI FOR R3 BY SMT.K.DEEPA (PAYYANNUR) THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR HEARING ON 16.07.2021 ALONG WITH M.A.C.A.No.3141 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.3141 of 2014 & C.O. No.164 of 2016 5 ## JUDGMENT This appeal is filed by the Insurance Company challenging the award passed by the Motor Accidents Claims Tribunal, Vatakara in OP(MV)No.245 of 2010. Respondents 1 to 4 who are claimants before the Tribunal filed a Cross Objection No.164 of 2016 in the said appeal. The claim petition was filed by respondents 1 to 4 seeking compensation for the death of one Jayesh in a motor accident occurred on 22.10.2009. The deceased is the husband of the 1[st] respondent, father of the 2[nd] respondent and the son of the 3[rd] and 4[th] respondents. 2. The accident occurred when the motor cycle ridden by the deceased was hit by a motor cycle ridden by the 6[th] respondent and owned by the 5[th] respondent. The said vehicle was insured with the appellant herein. 3. According to the claimants, the deceased was working as an interior designer with a monthly income of Rs.9,500/-. He was aged 32 years at the time of MACA No.3141 of 2014 & C.O. No.164 of 2016 6 accident. As compensation, they claimed an amount of Rs.9 lakhs. 4. The appellant-Insurance Company alone contested the matter by filing a written statement. It was contended that, even though the vehicle was insured with them at the time of the accident, they are not liable to pay the compensation, as the 6[th] respondent was driving the vehicle without any driving license. The quantum of compensation was also disputed by them. 5. The evidence in this case consists of Exts.A1 to A5 from the side of respondents 1 to 3 and Exts.B1 and B2 from the side of appellant herein. 6. After the trial, the Tribunal found that the accident occurred due to the negligence of the 6[th] respondent. The contention of the Insurance Company regarding the violation of policy condition was rejected. The quantum of compensation was fixed as Rs.11,63,600/-. Challenging the above award, this appeal is filed by the Insurance Company. Cross Objection was filed by the claimants seeking enhancement of compensation. MACA No.3141 of 2014 & C.O. No.164 of 2016 7 7. Heard the learned Senior Counsel appearing for the Insurance Company and the learned counsels appearing for respondents 1 to 4, as well as 5[th] and 6[th] respondents. 8. The main contention put forward by the learned Senior Counsel for the Insurance Company is that, the amount awarded by the Tribunal is on higher side. The learned Senior Counsel points out that, the amount fixed under the heads of love and affection, loss of consortium, pain and suffering and loss of dependency are on higher side. It is further contended that, the finding of the Tribunal on the question of violation of policy condition is also not sustainable. 9. The learned counsel for the respondents 1 to 4 would contend that the amount awarded by the Tribunal is on lower side particularly because of the fact that the monthly income taken by the Tribunal was Rs.4,000/which is on lower side. The learned Counsel for respondents 5 and 6 objected the contentions put forward by the learned Senior Counsel for the appellant with regard to the question of violation of policy condition. In this regard, the learned counsel for the MACA No.3141 of 2014 & C.O. No.164 of 2016 8 6[th] respondent brought the attention of this Court to the original driving licence produced by the 6[th] respondent along with I.A.No.1/2021. From the said document, it can be seen that, the 6[th] respondent was authorized to drive the motor cycle at the relevant time of the accident, as per the endorsement contained therein. The said license was valid from 24.12.2007 to 23.12.2012 whereas the accident occurred on 22.10.2009. In the light of the above, the contention raised by the Insurance Company is only to be rejected by confirming the finding of the Tribunal on the issue of violation of policy conditions. 10. The next aspect is relating to the quantum of compensation. There is some force in the contention put forward by the learned counsel for respondents 1 to 4 with regard to fixation of monthly income. It is true that, there is no proper evidence as to the avocation of the deceased. However, I am of the view that in the light of the principles laid down by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011)13 SCC MACA No.3141 of 2014 & C.O. No.164 of 2016 9 236] and Syed Sadiq v. Divisional Manager, United India Insurance Company Limited[(2014)2 SCC 735], the monthly income of Rs.7,000/- would be a reasonable figure to be taken as a notional income, as the accident occurred in the year 2009, even in the absence of any evidence, since the deceased was an able bodied man, aged only 32 years at the time of death. Hence, the same can be accepted. Regarding future prospects, the contention put forward by the learned Senior Counsel for the Insurance Company has to be accepted, considering the age of the deceased. As per the judgment in National Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT 662], the addition to be made is 40% and not 50% as found by the Tribunal. Similarly, the deduction made towards personal expenses by the Tribunal was 1/5[th] . Actually, the claimants being four in number, in the light of the above judgment, the deduction towards personal expense of the deceased should have been 1/4[th] . In the light of above, the compensation under the head of loss of dependency is to be reworked. While computing, the amount under this head is re-fixed as Rs. 14,11,200 /-(Rs.(7000+2800)x12x16x3/4). MACA No.3141 of 2014 & C.O. No.164 of 2016 10 11. Another aspect is relating to the compensation awarded under the heads of loss of love and affection as well as loss of consortium. Even though an amount of Rs.1 lakh was granted under the head of loss of consortium to the 1[st] respondent, no amounts were granted for loss parental and filial consortium to other respondents. As per the principles laid down by the Hon’ble Supreme Court in Pranay Sethi’s case (supra), respondents 1 to 4/claimants are entitled for compensation at the rate of Rs.40,000/each, under the heads of spousal consortium, parental consortium and filial consortium respectively. Thus the total amount receivable by the claimants under the above heads would come to Rs. 1,60,000/- in the place of Rs.1 lakh awarded by the Tribunal. In the judgment rendered by the Hon’ble Supreme Court in United India Insurance Co.Ltd v. Satwinder Kaur and Others (AIR 2020 SC 3076), it was categorically held that once the compensation under the head of loss of consortium is awarded, no separate amount needs to be awarded under the head of loss of love and affection. Hence, the amount awarded under the head of loss of love and MACA No.3141 of 2014 & C.O. No.164 of 2016 11 affection stands deleted. It is further submitted by the learned Senior Counsel that, the compensation awarded under the head of funeral expenses was Rs.25,000/- which is an excess of Rs.10,000/- and it has to be accepted. This excess amount is also to be deducted. Thus, the claimants are entitled an amount of Rs. 15,000 /- under the head of funeral expenses. No amount is seen granted under the head of loss of estate. In the light of the decision of Pranay Sethi’s case (supra), respondents 1 to 4 are entitled for an amount of Rs. 15,000 /- under the head of loss of estate and it is granted. As regards the amount granted under the head of pain and sufferings, it is evident from the records that the death was an instantaneous death and hence the amount of Rs.40,000/- granted by the Tribunal is on higher side. However, a reasonable amount has to be fixed. This Court is of the view that an amount of Rs. 10,000/- would be a just compensation and it is fixed accordingly. It is further pointed out that no amount was granted under the head of damage to clothings even though an amount of Rs.2,000/- was claimed in this regard. This Court is of the view that MACA No.3141 of 2014 & C.O. No.164 of 2016 12 Rs. 2,000/- as claimed can be granted under this head also. Thus, the compensation receivable by the claimants/respondent Nos.1 to 4 is re-fixed as Rs. 16,13,200 /- [Rs.14,11,200 + 1,60,000 + 15,000 + 15000 + 10,000 + 2000] (Rupees Sixteen Lakhs Thirteen thousand and Two hundred only) instead of Rs.11,63,600. The appellant/Insurance Company is directed to deposit the said amount along with interest at the rate of 7.5% per annum from the date of receipt of copy of this judgment. The appeal and Cross Objection are disposed of as above. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk