Kerala High Court
The United India Insurance ... vs Lisy on 23 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
MACA NO. 1891 OF 2021
AGAINST THE AWARD DATED 08.02.2021 IN OPMV NO.314/2016 OF
MUNSIFF COURT ,PATHANAMTHITTA, PATHANAMTHITTA
APPELLANT/6TH RESPONDENT :
UNITED INDIA INSURANCE COMPANY LIMITED,
REGIONAL OFFICE,
HOSPITAL ROAD ERNAKULAM,
COCHIN-682 035,
REPRESENTED BY ITS REGIONAL MANAGER.
BY ADV JOHN JOSEPH VETTIKAD
RESPONDENTS/ CLAIMANTS/ RESPONDENT NOS.1 TO 5 AND 7 IN O.P.:
1 LISY,
AGED ABOUT 46 YEARS,
M/O. (LATE) SUJITH, ALUMVILAYIL HOUSE,
CHIRANIKKAL, PARAKKODU P.O, ADOOR VILLAGE AND
TALUK, PATHANAMTHITTA DISTRICT-691 554
2 SURYAMOL,
AGED 28 YEARS
S/O. (LATE) SUJITH, ALUMVILAYIL HOUSE,
CHIRANIKKAL, PARAKKODU P.O, ADOOR VILLAGE AND
TALUK, PATHANAMTHITTA DISTRICT-691 554
3 JAYARAM,
S/O. RAVINDRAN PILLAI, CHIRAYIL PUTHENVEEDU,
KOVVOR, ARINALLOOR P.O, KOLLAM DISTRICT-690 538
4 SHEFEEK H,
S/O. HANEEFA M.K, RAFEEK MANZIL, MATTAPPALLY,
NOORANADU P.O, ALAPPUZHA DISTRICT-690 504
5 THE MANAGER,
THE ORIENTAL INSURANCE COMPANY LTD., E.C.
NANGYARKULANGARA, M/S. GOPAN AUTOMOBILE COMPLEX,
NANGYARKULANGARA P.O, ALAPPUZHA DISTRICT,
KERALA -690513
6 ESWARAN B,
S/O. BALAKRISHNAN, 33/16, NORTH STREET,
M.A.C.A.No.1891/2021
-:2:-
KUMUANTHAPURAM, KADAYANALLUR P.O,
THENKASHI-627 751
7 ESAKKIRAJ G,
S/O. GOVINDARAJ, 15/A- VADAKKUVILAI COLONY
STREET, KADAYANALLUR P.O,THENKASHI- 627 751
8 MATHEW DANIEL,
S/O. SAMUEL, MANGALATHU PADEETHATHIL,
ELAMPALLIL, PARAKOOTTAM P.O, ADOOR-691 551
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 23.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
M.A.C.A.No.1891/2021
-:3:-
Dated this the 23rd day of July,2021
JUDGMENT
The appellant - insurer - was the sixth respondent
in O.P (MV)No.314/2016 on the file of the Motor
Accidents Claims Tribunal, Pathanamthitta. The
respondents 1 and 2 in the appeal were the claimants
and the respondents 3 to 8 were respondents 1 to 5
and 7 before the Tribunal. The parties are, for the
sake of convenience, referred to as per their status in
the claim petition.
2. The petitioners had filed the claim petition
under Section 166 of the Motor Vehicles Act, 1988,
claiming compensation on account of the death of
'Sujith'(deceased). It was their case that, on
18.02.2016, while the deceased was riding a
motorcycle through the Adoor-Pathanapuram road, a
tipper lorry bearing registration No.KL_23/D-3076(in
short, tipper lorry) came from the opposite side and hit
the motorcycle of the deceased. The tipper lorry was
driven by the second respondent. Immediately, after
M.A.C.A.No.1891/2021
the deceased fell on the road another Mini lorry
bearing registration No.TN-76/M-1069(in short, Mini
lorry) came from behind and ran over the deceased.
The Mini lorry was also driven negligently by the fifth
respondent. The deceased was only 22 years of age
and was a welder by profession and earning a monthly
income of Rs.26,000/-(Rs.875/-per day). The deceased
was the sole breadwinner of the family because his
father had deserted the family. The sudden and
untimely death of the deceased has put the petitioners
in untold miseries. The accident occurred due to the
composite negligence of the second and fifth
respondents, who drew their respective vehicles in a
rash and negligent manner. The first respondent was
the registered owner of the Tipper lorry and the third
respondent was its insurer. The fourth respondent was
the registered owner of the Mini lorry and the sixth
respondent was its insurer. Accordingly, the petitioners
claimed a compensation of Rs.40,00,000/- from the
M.A.C.A.No.1891/2021
respondents.
3. Subsequent to the filing of the claim petition,
an application was filed as I.A.No.2186/2016 and the
additional seventh respondent was impleaded, stating
that he was the registered owner of the Tipper lorry.
4. Respondent Nos.3 to 5 did not contest the
proceeding and they were set ex parte. Respondent
Nos.1 and 6 and additional respondent No.7 contested
the proceeding.
5. The first respondent filed a written
statement, refuting the allegation that he was the
owner of the Tipper lorry. It was his defence that he
had sold the said vehicle to the additional seventh
respondent.
6. The second respondent, the driver of the
Tipper lorry filed a written statement denying the
allegation that he was negligent in causing the
accident. According to him, the accident was caused
by the Mini lorry driven by the fifth respondent, who
M.A.C.A.No.1891/2021
ran over the deceased.
7. The sixth respondent(appellant)/the insurer
of the Mini lorry filed a written statement, contending
that the accident was caused on account of the
negligence of the deceased. He fell from the bike in
front of the Mini lorry, which led to the accident.
Therefore, the sixth respondent cannot be held liable
for the accident.
8. The additional seventh respondent filed a
written statement, admitting that he was owner of the
Tipper lorry. However, it was contended that the
Tipper lorry was insured with the third respondent.
9. The petitioners examined PW1 and marked
Exts.A1 to A10 in evidence. The respondents did not
let it any evidence.
10. The Tribunal allowed the claim petition by
permitting the petitioners to realise an amount of
Rs.32,55,200/-. The sixth respondent-insurer of the
Mini lorry was directed to pay the compensation
M.A.C.A.No.1891/2021
amount and recover 50% of the compensation amount
from the third respondent-the insurer of the Tipper
lorry.
11. Aggrieved by the direction to the sixth
respondent to pay the amount and recover half the
amount of the compensation from the third
respondent, and also by the quantum of compensation
awarded by the Tribunal, the sixth respondent-insurer
has approached this Court.
12. Heard; Adv.Sri. John Joseph Vettikad, the
learned counsel appearing for the appellant/sixth
respondent.
13. The principle grounds of challenge in the
Memorandum of appeal are:
(i) the direction of the Tribunal i.e., the
sixth respondent should pay the
compensation amount and recover
50% from the third respondent is
erroneous.
(ii) the quantum of compensation fixed by
M.A.C.A.No.1891/2021
the Tribunal is on the higher side.
14. Ext.A8, final report filed by the Adoor Police
Station in Crime No.478/2016 substantiates that there
was negligence on the part of the respondents 2 and 5,
the drivers of the Tipper lorry and the Mini lorry.
Undisputedly, the appellant/sixth respondent and the
third respondent were the insurers of the said
vehicles. As there was no violation of policy condition,
the said Insurance Companies are liable to indemnify
the owners for the liability that has occurred.
15. In Khenyei v. New India Assurance Co.
Ltd. [2015 (3) KHC 70] the Hon'ble Supreme Court
has held that the claimants are at liberty to sue any or
all of the joint tortfeasors for recovery of
compensation.
16. In the instant case, the petitioners had
impleaded the driver, owner and insurer of both the
Tipper lorry and Mini lorry.
17. The Tribunal following the law in
M.A.C.A.No.1891/2021
Khenyei(supra), has directed the sixth respondent to
pay the compensation amount to the petitioners and
recover 50% of the amount from the third
respondent-the insurer of the Tipper lorry. The said
course adopted by the Tribunal can never be said
erroneous or wrong. Moreover, no prejudice is likely to
be caused to the appellant/sixth respondent because it
can easily recover the amount from the third
respondent which is also a Public Sector Insurance
company instead of the petitioners seeking execution
proceedings against both the companies to realise the
compensation amount. Hence, I hold that there is no
illegality in the above direction passed by the Tribunal.
Hence, I confirm the said direction of the Tribunal.
18. Coming to the next ground of challenge,
whether the quantum of compensation fixed by the
Tribunal is on the higher side.
19. The deceased was aged only 22 years. The
petitioners claimed that the deceased was a welder by
M.A.C.A.No.1891/2021
profession. The petitioners examined PW1, who was
the Proprietor of a welding workshop named 'Thundil
Engineering Works' and proved Ext.A10 salary
certificate. PW1 testified that the deceased was
employed with him as a skilled roof top worker and
used to earn a daily wage of Rs.875/- and the deceased
used to work for eight hours a day and also did
overtime work.
20. The Tribunal, on evaluating the oral
testimony of PW1 and Ext. A10 certificate, arrived at
the conclusion that the testimony of PW1 was worthy
and believable. In such circumstances, the income of
the deceased was fixed at Rs.875/- per day for 24 days
in a month.
21. Accordingly, the Tribunal fixed the notional
income of the deceased at Rs.21,000/-. The fact finding
exercise conducted by the Tribunal is absolutely
justifiable and correct. I do not find any error in the
notional income of the deceased fixed by the Tribunal.
M.A.C.A.No.1891/2021
22. It is trite law that the Tribunals are permitted
to do some guess work and exercise their discretion in
fixing the reasonable and just compensation, for which
there cannot be any straight jacket formula in
arithmetical precision.
23. With respect to the other heads of
compensation, I find that the Tribunal has followed the
ratio of the Hon'le Supreme Court in National
Insurance Company Ltd. v. Pranay Sethi [(2017) 16
SCC 680] and United India Insurance Company
Ltd. v. Satinder Kaur and others [2020(3)KHC
760].
24. The Hon'ble Supreme Court in New India
Assurance Company Ltd. v. Kiran Singh and
others [2004 AIR SC 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 also
observed that such instances are brought to the notice
M.A.C.A.No.1891/2021
of the court, the court would be obliged to dismiss
such appeals with heavy costs apart from the
deprecating such practice.
25. On an overall appreciation of the impugned
award and the materials on record and the elaborate
findings rendered by the Tribunal, I do not find any
error or illegality warranting interference by this
Court in exercise of its appellate jurisdiction. In the
said circumstances, I am of the considered opinion
that the admission of appeal would be only a wastage
of judicial time and harassment to the
petitioners/respondents 1 and 2/claimants.
Following the ratio in Kiran Singh (supra), I hold
that the appeal is devoid of any merits and does not
warrant admission. Therefore, I dismiss the appeal at
threshold.
Sd/-
C.S.DIAS,JUDGE
DST //True copy/
P.A.To Judge
