Kerala High Court
United Inida Insurance Company ... vs Bhinimol K.S on 16 July, 2021
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 16TH 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, KOCHI-
682011.
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 16TH 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 2nd respondent and the son of
the 3rd and 4th respondents.
2. The accident occurred when the motor cycle
ridden by the deceased was hit by a motor cycle ridden
by the 6th respondent and owned by the 5th 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 &
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 &
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 6th
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 &
6th respondent brought the attention of this Court to
the original driving licence produced by the 6th
respondent along with I.A.No.1/2021. From the said
document, it can be seen that, the 6th 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 &
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 1/5th.
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
1/4th. 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 &
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 &
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 &
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
