United India Insurance Company Ltd. v. Sineeja Rajan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **FRIDAY, THE 10[TH] DAY OF DECEMBER 2021 / 19TH AGRAHAYANA, 1943** ## **MACA NO. 2431 OF 2014** **AGAINST THE AWARD DATED 11.11.2013 IN OPMV 1737/2012 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/3RD RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LIMITED THAMARASSERY NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI 11 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONERS:** - **1 SINEEJA RAJAN, W/O LATE RAJAN, 5/251, THAIPPARAMBIL, PONNAMKAYAM, THIRUVAMBADY P.O, THAMBALAMANNA, KOZHIKODE 673320** - **2 ROHIT N (MINOR),S/O LATE RAJAN, 5/251, THAIPPARAMBIL, PONNAMKAYAM, THIRUVAMBADY P.O, THAMBALAMANNA, KOZHIKODE 673320** - **3 ROSHNA RAJAN (MINOR),D/O LATE RAJAN, THAIPPARAMBIL, PONNAMKAYAM, THIRUVAMBADY P.O, THAMBALAMANNA, KOZHIKODE 673320** - **4 GOPI T.K, S/O KOCHUKUTTY, 5/251, THAIPPARAMBIL, PONNAMKAYAM, THIRUVAMBADY P.O, THAMBALAMANNA, KOZHIKODE 673320** - **5 LAKSHMI, W/O GOPI, 5/251, THAIPPARAMBIL, PONNAMKAYAM, THIRUVAMBADY P.O, THAMBALAMANNA, KOZHIKODE 673320** **BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD** **ON 10.12.2021, ALONG WITH MACA.1758/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.2431-2014 and 1758-2015 ..2.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **FRIDAY, THE 10[TH] DAY OF DECEMBER 2021 / 19TH AGRAHAYANA, 1943** **MACA NO. 1758 OF 2015** **AGAINST THE AWARD DATED 11.11.2013 IN OPMV 1737/2012 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONERS:** **1 SINEEJA RAJAN, AGED 34 YEARS W/O.LATE RAJAN 2 ROHITH .N (MINOR),AGED 8 YEARS DATE OF BIRTH 05.06.2004, S/O.LATE RAJAN. 3 ROSHANA RAJAN (MINOR) AGED 7 YEARS DATE OF BIRTH 11.10.2005, D/O.LATE RAJAN, MINORS ARE REPRESENTED BY THEIR MOTHER SINEEJA RAJAN. 4 GOPI T.K.,AGED 75 YEARS S/O.KOCHUKUTTY, 5 LAKSHMI, AGED 70 YEARS W/O.GOPI, ALL ABOVE ARE RESIDING AT 5/251, THAIPPARAMBIL, PONNAMKAYAM, THIRUVAMBADY P.O., KOZHIKODE - 673 603. BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SRI.S.JAYAKUMAR SMT.LEKSHMI SWAMINATHAN SMT.MARIAN G.M.THARAKAN** ## **RESPONDENT/S:** **UNITED INDIA ASSURANCE CO.LTD,BRANCH OFFICE, THAMARASSERY, K.M.O.TOWER, MAIN ROAD, THAMARASSEERY - 673 573.** **BY ADV SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2021, ALONG WITH MACA.2431/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.2431-2014 and 1758-2015 ..3.. ## **JUDGMENT** Both these appeals are preferred against the award dated 11.11.2013 in O.P.(MV)No.1737 of 2012 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. 2.MACA No.2431-2014 is filed by the insurer, the 3[rd] respondent in the claim petition, challenging the finding of the Tribunal that the accident happened due to the negligence of the driver of the jeep involved in the accident, which was insured with them. 3.M.A.C.A. No.1758-2015 is filed by the petitioners in the claim petition for enhancement of the compensation awarded by the Tribunal. 4.The parties in these appeals are hereinafter referred to as per the status in the claim petition. MACA Nos.2431-2014 and 1758-2015 ..4.. The petitioners are dependents of deceased Rajan, who died in a motor vehicle accident on 03.08.2012. While the deceased was riding a motor cycle from Athippara to Thiruvambady, the motor cycle collided with another motor cycle which was parked on the side of the road and he lost control and fell down on the road and was run over by the jeep driven by the 2[nd] respondent. The deceased succumbed to the injuries at the hospital. According to the petitioners, the accident happened due to the negligence of the 2[nd] respondent, who was the owner-cum driver of the jeep. The petitioners claimed an amount of Rs.10,00,000/- as total compensation for the death of deceased Rajan in the accident. 5.The 2[nd] respondent, entered appearance MACA Nos.2431-2014 and 1758-2015 ..5.. before the Tribunal and filed written statement contending that there was no negligence on his side in causing the accident and that the vehicle was having a valid policy of insurance with the 3[rd] respondent and therefore, he is not liable to pay any compensation. The 3[rd] respondent insurance company filed written statement admitting that the vehicle was covered by a valid policy at the time of the accident, however, contended that there was no negligence on the side of the 2[nd] respondent in causing the accident. It was also contended that the amount of compensation claimed is excessive. 6.Exts. A1 to A7 were marked from the side of the petitioners. RW1 was examined and Exts. B1 to B9 were marked, on the side of the MACA Nos.2431-2014 and 1758-2015 ..6.. respondents. The Tribunal found that the accident occurred due to the negligence on the side of the 2[nd] respondent. The Tribunal awarded an amount of Rs.7,52,000/- with 8% interest per annum from the date of the petition till deposit with proportionate costs, as total compensation for the death of the deceased. The 3[rd] respondent insurance company was directed to satisfy the award. **M.A.C.A. No. 2431/2014** 7. The appellant-insurance company contends that the accident happened due to the rash and negligent riding of the motor cycle by the deceased and not on account of the negligence of the driver of the jeep. It is contended that Exts. B1 to B6 copies of Section 161 statement of some MACA Nos.2431-2014 and 1758-2015 ..7.. of the witnesses would reveal that the eye deceased alone was responsible for causing the accident. However, the Tribunal did not rely on the said documents and found the driver of the jeep alone negligent for the accident. On the basis of the same, the insurance company contends that the deceased alone was negligent and the Tribunal should, at least, have fixed 50% contributory negligence on the part of the deceased. 8. I have considered this contention of the learned Senior Counsel. It is trite that the statement recorded under Section 161 Cr.P.C. unless translated into legal evidence would not constitute legal evidence and a substitute for evidence and proof of negligence. Therefore, the Tribunal was right in not relying on the 161 MACA Nos.2431-2014 and 1758-2015 ..8.. statements of the witnesses. The Tribunal rightly relied on Ext. A3 final report by the investigating officer to hold that there was negligence on the side of the 2[nd] respondent. The Tribunal has entered this finding after a proper appreciation of the evidence available before it and I do not find any reason to interfere with the said order. There is also no reason to attribute any contributory negligence on the part of the deceased. 9. Accordingly, M.A.C.A. No.2431 of 2014 is dismissed. ## **M.A.C.A. No.1758/2015** 10. According to the appellants/petitioners, the amount of compensation awarded by the Tribunal is inadequate. 11. With regard to the income of the deceased MACA Nos.2431-2014 and 1758-2015 ..9.. who was an electrician, the Tribunal has taken the monthly income as Rs.4,500/- at the time of accident. Following the dictum laid down in _**v**_ **. Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited** the [2011 (13) SCC 236], I find that monthly income of the deceased can be taken as Rs.8,500/-. Therefore, I re-fix the notional/monthly income of the deceased at the time of accident as **Rs.8,500/-** . The deceased was aged 41 years at the time of the accident and the multiplier applicable is '14'. While determining the income, by adding 25% of monthly income of deceased towards future prospects, the monthly income is recalculated as Rs.10,625/- [8500+2125]. 12.In the light of the decision in **Sarla Verma** MACA Nos.2431-2014 and 1758-2015 ..10.. _**v**_ **. Delhi Transport Corporation** [2009 (6) SCC 121], deduction towards the personal and living expenses of the deceased who was married and having 5 dependent members shall be 1/4. 13. Accordingly, the compensation for loss of is re-calculated and as dependency re-fixed Rs.13,38,750/(Rs.10625×12×14×3/4). After deducting an amount of Rs.5,67,000/- already awarded by the Tribunal, the petitioners will be entitled for an enhanced amount of Rs.7,71,750/under the said head. 14. Under the head loss of consortium, the Tribunal has awarded Rs.1,00,000/as compensation. Following the ratio of the decision in _**v**_ **. National Insurance Company Limited Pranay Sethi and others** [(2017) 16 SCC 680] MACA Nos.2431-2014 and 1758-2015 ..11.. and **N.Jayasree and others** _**v**_ **. Cholamandalam Ms General Insurance Co. Ltd** (2021 (6) KHC 163, the appellants are entitled to Rs.40,000/each for loss of consortium with 10% increase for every 3 years. Accordingly, the petitioners are entitled to an amount of **Rs.2,20,000/-** (44,000x5) under the head loss of consortium. The petitioners are awarded an additional amount of Rs.1,20,000/- for loss of consortium. 15. The Tribunal has granted an amount of Rs. 50,000/- towards compensation for love and affection. The Hon'ble Supreme Court has held in **United India Insurance Co.Ltd.** _**v.**_ **Satinder Kaur** [AIR 2020 SC 3076], that when compensation is awarded under the head loss of consortium, there is no justification in awarding MACA Nos.2431-2014 and 1758-2015 ..12.. compensation for loss of love and affection as a separate head. Therefore, Rs. 50,000/- awarded under this head has to be reduced. 16. The Tribunal has awarded an amount of Rs.25,000/- towards funeral expenses. Going by the principles laid down in **National Insurance** _**v.**_ **Company Limited Pranay Sethi and Ors. [(2017) 16 SCC 680]** , the petitioners are entitled to an amount of Rs.15,000/- only towards funeral expenses. With an enhancement of 10% for every 3 years, the petitioners are entitled for an amount of Rs.16,500/-(15000+1500) towards compensation for funeral expenses. Therefore, the excess amount of **Rs.8,500/-** [Rs.25,000Rs.16,500] has to be deducted under the said head. MACA Nos.2431-2014 and 1758-2015 ..13.. 17.Towards loss of estate, the Tribunal has awarded an amount of Rs.8,000/- only. The petitioners are entitled to an amount of Rs.16,500/- [15,000/- + 10% enhancement] towards loss of estate. Therefore, the petitioners are entitled for an additional amount of **Rs.8,500/-** [Rs.16,500-8,000] under the said head. 18. Therefore, the total compensation is recalculated as shown below:- |Sl.<br>No|Item|Awarded by<br>the Tribunal|Revised|Diference| |---|---|---|---|---| |1|Transport<br>to<br>hospital|1000|1000|Nil| |2|Damage<br>to<br>clothing|2000|1000|Nil| |3|Funeral expenses|25000|16500|8500(-)| |4|Loss of estate|8000|16500|8500| |5|Loss of love and<br>afection|50000|Nil|50,000 (-)| |6|Loss of consortium|1,00,000|2,20,000|1,20,000| |7|Loss<br>of|5,67,000|13,38,750|7,71,750| MACA Nos.2431-2014 and 1758-2015 ..14.. ||dependency|||| |---|---|---|---|---| ||Total|7,52,000|15,93,750|8,41,750<br>======| Accordingly, M.A.C.A No.1758/2015 is disposed of and the appellants/petitioners will be entitled for an enhanced compensation of **Rs.8,41,750/-** with 8% interest from date of petition till deposit with proportionate costs. While calculating the interest, the appellants will not be entitled for interest for a period of 346 days as per order dated 18.06.2019 in C.M. Application No.1930 of 2015 in the said appeal. The third respondent insurance company is directed to deposit the amount with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this MACA Nos.2431-2014 and 1758-2015 ..15.. judgment. The apportionment of compensation among the claimants will be as ordered by the Tribunal in the award. Sd/- **MURALI PURUSHOTHAMAN JUDGE** **spc/**