The Divisional Manager, National ... vs Saly Varghese
2021 Latest Caselaw 13680 Ker

MACA NO. 2963 OF 2020
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         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
            THE HONOURABLE MR.JUSTICE C.S.DIAS
   FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
                   MACA NO. 2963 OF 2020
AGAINST THE ORDER/JUDGMENT IN OPMV 1680/2017 OF ADDITIONAL
  DISTRICT COURT & SESSIONS COURT - III, PATHANAMTHITTA,
                        PATHANAMTHITTA
APPELLANT/3RD RESPONDENT IN OP(MV):

         THE DIVISIONAL MANAGER, NATIONAL INSURANCE
         COMPANY LTD., DIVISIONAL OFFICE, NELSON COMPLEX,
         PUTHIYIDAM P.B. NO. 60, KAYAMKULAM, PIN CODE-690
         502, REPRESENTED BY MANAGER, NATIONAL INSURANCE
         COMPANY LTD, KOCHI REGIONAL OFFICE, OMANA
         BUILDINGS, JEWS STREET, KOCHI 682 035

         BY ADVS.
         P.G.JAYASHANKAR
         KUM.P.K.RESHMA (KALARICKAL)



RESPONDENT/S:

    1    SALY VARGHESE
         AGED 55 YEARS
         W/O. VARGHESE E.S, ELLATHUPARAMBIL HOUSE, NEAR
         MALAYALAPUZHA HARRISON, MALAYALAM PLANTATION,
         CHITTAR-SEETHATHODU, VADASSERIKKARA (MOTHER OF
         DECEASED).

    2    AVINASH VARGHESE, AGED 24, S/O.SALY VARGHESE,
         ELLATHUPARAMBIL HOUSE, PUTHUKULAM MALA P.O,
         MALAYALAPPUZHA ERAM, PATHANAMTHITTA (BROTHER OF
         THE DECEASED)

    3    JOHN K. MATHEW,
         S/O. MATHEW K.J, KUZHICHIRAYIL, KEEZHUKARA,
         KOZHENCHERRY P.O, PIN-689 641
 MACA NO. 2963 OF 2020
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    4       ABHILASH K. NAIR,
            S/O. KARNAKARAN NAIR, EZHAVARAMANGALASSERIL,
            NARANGANAM NORTH, PATHANAMTHITTA, PIN-689 642

            BY ADV SRI.A.N.SANTHOSH




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION    ON   02.07.2021,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 MACA NO. 2963 OF 2020
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                         C.S.DIAS, J.
              ----------------------------------------
               M.A.C.A.No.2963 of 2020
              ----------------------------------------
           Dated this the 2nd day of July, 2021

                        JUDGMENT

The appellant was the 3rd respondent in OP(MV)

No.1680/2017 on the file of the Motor Accidents Claims

Tribunal-III Pathanamthitta. The respondents in the appeal

are the petitioners 1 and 2 and respondents 1 and 2 in the

claim petition.

2. The respondents 1 and 2 had filed claim petition

under section 166 of the Motor Vehicles Act, 1988,

claiming compensation on account of the death of Abhilash

Varghese (deceased), son of the 1 st respondent and the

brother of the 2nd respondent, inter-alia, stating that on

11.09.2017 while the deceased was driving a car bearing

registration No.KL-03 Z-9194 from Mallasseri to MACA NO. 2963 OF 2020

Kozhencherry, a bus bearing registration No.KL-23-A-1060

(offending vehicle) driven by the 3 rd respondent in a rash

and negligent manner hit the car of the deceased. The

deceased succumbed to the injuries on the same day. The

offending vehicle was owned by the 4 th respondent and

insured with the appellant. The deceased was 23 years of

age at the time of accident. He was an Aeronautical

Engineering Graduate and passed his graduation in 2015.

He was a bright student. At the time of accident, the

deceased was working as a Sales Executive with TVS

Mahindra & Mahindra and was earning a monthly income

of Rs.30,000/-. The respondents 1 and 2 contended that the

appellant and respondents 3 and 4 were jointly and

severely liable to pay compensation to them.

3. The respondents 4 and 5 did not contest the

proceedings and were set ex-parte.

4. The appellant filed a written statement admitting

that the offending vehicle had a valid insurance policy.

However, the appellant disputed the age, occupation, MACA NO. 2963 OF 2020

income of the deceased and contended that the amount of

compensation claimed was excessive.

5. The 1st respondent gave evidence as PW1 and

marked Exts.A1 to A27 in evidence. Neither the appellant

nor the respondents 4 and 5 let in any contra evidence.

6. The Tribunal, after analysing the pleadings and

materials on record, by the impugned award allowed the

claim petition by permitting the respondents 1 and 2 to

realise the amount of Rs.40,07,000/- (Rupees Forty Lakhs

and Seven Thousand only) from the appellant with interest

and costs.

7. While arriving at the above said figure, the Tribunal

fixed the notional income of the deceased at Rs.20,000/-

per month, took the multiplier at 18, deducted ½ towards

the personal living expense of the deceased, as he was a

bachelor, and awarded future prospects at 40%. The

Tribunal accordingly awarded an amount of Rs.15,000/-

towards funeral expenses, Rs.2,000/- towards damage to MACA NO. 2963 OF 2020

clothing and articles, Rs.15,000/- towards transportation

charges, Rs.30,000/- towards pain and suffering,

Rs.1,00,000/- towards love and affection, Rs.50,000/-

towards loss of consortium, Rs.15,000/- towards loss of

estate and Rs.37,80,000/- towards loss of dependency.

8. The appellant has filed the appeal principally

challenging the notional income of the deceased fixed by

the Tribunal at Rs.20,000/- per month, inter-alia contending

that in the light of the decisions of the Honourable

Supreme Court in Ramachandrappa vs. Manager, Royal

Sundaram Alliance Insruance Company Ltd. : (2011)

13 SCC 236 and Syed Sadiq vs. Divisional Manager;

United India Insraunce Co.Ltd. : (2014) 2 SCC 735, the

Tribunal ought to have fixed the notional income of the

deceased at only Rs.11,000/- and therefore, the fixation of

Rs.20,000/- as notional income of the deceased was on the

higher side.

9. Heard the learned counsel appearing for the

appellant.

MACA NO. 2963 OF 2020

10. As per Ext.A8 charge sheet filed by the Aranmula

Police Station in Crime No.1730/2017, it is proved that the

accident occurred solely on account of the rash and

negligent driving of the offending vehicle by the 3 rd

respondent. Undisputedly the 4th respondent was the owner

and the appellant was the insurer.

11. The 1st respondent/mother of the deceased gave

evidence and has proved that the deceased had completed

his Aeronautical Engineering as per Ext.A20 certificate.

Exts.A26 and A27 statement of marks of the deceased in

his 10th and 12th Standards proves that he was a bright

student. Exts.A9 to A19 certificates pertain to the extra-

curricular and co-curricular activities of the deceased.

12. It was the specific case of the respondents 1 and 2

that the deceased was working as a Sales Executive in TVS

Mahindra & Mahindra and earning a monthly income of

Rs.30,000/-. Nevertheless the Tribunal fixed the notional

income of the deceased at only Rs.20,000/- per month. MACA NO. 2963 OF 2020

13. This Court in National Insurance Co. vs.

Fathimath Suhara (2016 (3) KLT 459) has fixed the

notional income of an Engineering student who lost his life

in an accident in the year 2005, at Rs.9,000/- per month.

14. In the case on hand the deceased was an

Engineering Graduate and was already employed in a

private company. The accident occurred in the year 2017.

Therefore, the notional income fixed by the Tribunal can

never be said to be on the higher side.

15. The Tribunal has following the law laid down by

the Constitutional Bench of the Honourable Supreme Court

in National Insurance Co. Ltd. vs. Pranay Sethy & Ors

(2017 (4) KLT 662) rightly fixed the multiplier,

compensation for dependency, future prospects, and

compensation under the conventional heads. Therefore, the

quantum of compensation awarded by the Tribunal cannot

be stated to be unjust and unreasonable.

16. The Honourable Supreme Court in New India MACA NO. 2963 OF 2020

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. It is held that if such instances are

brought to the notice of the court, the court would be

obliged to dismiss such appeals with heavy cost apart from

deprecating such parties.

On a consideration of the grounds in the memorandum

of appeal, perusal of the impugned award and hearing the

learned counsel for the appellant, particularly taking note

of the fact that the 1st respondent mounted the box and

proved Exts.A1 to A27 documents, I do not find any error in

the impugned award. It is trite law that the Tribunals are

permitted to do some guess work and also exercise its

discretion to fix the reasonable and just compensation for

which there cannot be any strait jacket formula based on

arithmetical precision. I find that the Tribunal has judicially

exercised its powers based on the law and the precedents MACA NO. 2963 OF 2020

of the Honourable Supreme Court in fixing the just

compensation as per impugned award. I do not find any

justifiable ground in the memorandum of appeal

warranting the admission of the appeal, which would only

be a wastage of judicial time, harassment to respondents 1

and 2 and also a wastage of public money because

ultimately if the appeal is dismissed, interest will have to

be paid all through out the period of the pendency of the

appeal. Following the ratio in Kiran Sing (supra) I find

that the appeal is devoid of any merits and is only to be

dismissed in limine.

Sd/-

C.S.DIAS JUDGE rkc