Reliance General Insurance ... vs Adila
2021 Latest Caselaw 21874 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                  THE HONOURABLE MR.JUSTICE C.S.DIAS
  WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                        MACA NO. 3021 OF 2021
 AGAINST THE ORDER/JUDGMENT IN OPMV 330/2018 OF MOTOR ACCIDENT
                CLAIMS TRIBUNAL , MANJERI, MALAPPURAM
APPELLANT/S:

          RELIANCE GENERAL INSURANCE COMPANY LIMITED
          2ND FLOOR, CITADAL ARCADE, RC ROAD, OPP. TAGORE
          CENTENARY HALL, KOZHIKODE-673032, NOW REPRESENTED BY
          ITS MANAGER, LEGAL-CLAIMS, REGIONAL OFFICE, VISHNU
          BUILDING, K.P.VALLON ROAD, KADAVANTHRA P.O., KOCHI-
          682020.
          BY ADVS.
          MATHEWS JACOB (SR.)
          P.JACOB MATHEW


RESPONDENT/S:

    1     ADILA,AGED 25 YEARS
          W/O. N.T.SHIHAB, VEERASSERI HOUSE, CHEREEKAD,
          KANNAMANGALAM WEST P.O., TIRURANGADI TALUK, MALAPPURAM
          DISTRICT-676305.
    2     MISHAL LIYANA N.T.,AGED 5 YEARS
          (MINOR), VEERASSERI HOUSE, CHEREEKAD, KANNAMANGALAM
          WEST P.O., TIRURANGADI TALUK, MALAPPURAM DISTRICT-
          676305, REPRESENTED BY HER MOTHER 1ST RESPONDENT.
    3     MARIYUMMA, AGED 53 YEARS
          W/O.BEERAN NELLIKATHODI, PALAMTHODU HOUSE,
          KANNAMANGALAM WEST P.O., TIRURANGADI TALUK, MALAPPURAM
          DISTRICT-676305.

    THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME
UP FOR ADMISSION ON 03.11.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
                              2
MACA No.3021 of 2021

                      C.S.DIAS, J.
          ======================
               MACA No.3021 of 2021
          ======================
      Dated this the 3rd day of November, 2021.

                       JUDGMENT

The appellant was the second respondent in OP(MV)

330/2018 on the file of the Motor Accidents Claims

Tribunal, Manjeri. The respondents 1 and 2 were the

petitioners and the third respondent was the third

respondent before the Tribunal. The appellant has not

impleaded the respondents 1, 4 to 7 before the Tribunal

as parties in the appeal. Therefore, 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 Sec.166 of the Motor Vehicles Act, 1988, claiming

compensation on account of the death of one N.T.Shihab

(deceased), the husband of the first petitioner and father

of the second petitioner. It was their case that, on

MACA No.3021 of 2021

26.8.2017, while the deceased was riding his scooter

bearing registration No.KL-65/F-561 from Karuvankallu

to Parambil Peedika, when he reached the place named

Kadappadi-Ungungal, a tipper lorry bearing registration

No.KL-10/AG 8834 (lorry), driven by the first respondent

in a rash and negligent manner, hit the scooter of the

deceased. The deceased was thrown on the road and he

lost his life instantaneously. The first respondent was

also the owner and the third respondent was the insurer

of the lorry. The respondents 3 to 7 were the mother and

siblings of the deceased. The deceased was a

businessman and was earning a monthly income of

Rs.18,000/-. The deceased was 27 years old. The

petitioners were the dependents of the deceased. Hence,

the petitioners claimed a total compensation of

Rs.39,20,000/- from the respondents 1 and 2.

3. The first respondent did not contest the

proceeding and was set ex parte.

MACA No.3021 of 2021

4. The respondents 2 to 7 entered appearance and

filed written statements.

5. The second respondent had filed a written

statement refuting the allegations in the claim petition.

It was contended that the accident occurred due to the

negligence of the deceased. The second respondent also

disputed the age, income and occupation of the deceased.

Nevertheless, the second respondent admitted that the

lorry had a valid insurance coverage.

6. The respondents 3 to 7 had filed a joint written

statement, inter alia, contending that the marriage

between the first petitioner and the deceased was

dissolved as per the personal law of the parties. Hence,

only the respondents 3 to 7 were the legal

representatives of the deceased.

7. The petitioners marked Exts A1 to A6 in

evidence. The respondents did not let in any evidence.

8. The Tribunal, after analysing the pleadings and

MACA No.3021 of 2021

materials on record, allowed the claim petition, in part,

by permitting the petitioners to realise from the second

respondent an amount of Rs.19,55,000/- with interest at

the rate of 9% per annum from the date of petition till the

date of realisation and proportionate costs.

9. Aggrieved by the award, the second respondent

- insurer is in the appeal.

10. Heard: Sri.Mathews Jacob, the learned Senior

Counsel appearing for the appellant/second

respondent/insurer.

11. The principal grounds of challenge in the

memorandum of appeal are: (i) the Tribunal has failed to

consider that there was contributory negligence on the

part of the deceased, (ii) the compensation awarded by

the Tribunal was excessive, (iii) the Tribunal ought not to

have awarded compensation for loss of love and

affection and pain and sufferings, and (iv) the rate of

interest awarded by the Tribunal is on the higher side.

MACA No.3021 of 2021

Ground No.(i)

12. Annexure A2 charge-sheet filed by the Police

substantiates that the accident occurred due to the

negligence of the first respondent, who was driver cum

owner of the offending lorry. The appellant/second

respondent admitted that the lorry had a valid insurance

coverage and had not proved that the first respondent

had violated the insurance policy conditions. The

respondents did not let in any evidence to discredit Ext

A2 charge-sheet as laid down by this Court in New India

Assurance Co. Ltd v. Pazhaniammal - [(2011)

(3)KLT 648]. Therefore, I hold that the finding of the

Tribunal that the accident occurred due to the negligence

of the first respondent is correct and in accordance with

law. Hence, I answer ground No.(i) against the appellant

by confirming the finding of the Tribunal fixing

negligence on the first respondent. As the

appellant/second respondent was the insurer, the second

MACA No.3021 of 2021

respondent is to indemnify the liability of the first

respondent arising out of the accident.

Ground Nos (ii) and (iii)

13. The petitioners had contended that the

deceased was a businessman and he was aged 27 years

at the time of his death. Although they asserted that the

deceased was earning a monthly income of Rs.18,000/-,

for want of material, the Tribunal following the ratio in

Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Limited [(2011) 13

SCC 236] and Syed Sadiq and others v. Divisional

Manager, United India Insurance Co.Ltd. - [(2014) 2

SCC 735] has fixed the monthly notional income of the

deceased at Rs.9,000/-. After fixing the notional income

of the deceased at Rs.9,000/- per month, the Tribunal has

awarded the petitioners future prospects at 40% and

deducted one-third of the compensation for loss of

dependency towards the personal living expenses of the

MACA No.3021 of 2021

deceased. The Tribunal has rightly adopted the

multiplier at '17' and then fixed the compensation for loss

of dependency at Rs.17,13,600/-

14. On an appreciation of the pleadings and

materials on record, I find that the Tribunal has rightly

awarded the compensation for loss of dependency as per

the ratio of the Hon'ble Supreme Court in Sarla Verma

v. Delhi Transport Corporation [2010 (2) KLT 802

(SC)].

15. The Tribunal has also awarded conventional

heads of compensation as laid down by the Hon'ble

Supreme Court in National Insurance Co.Ltd v Pranay

Sethi [(2017) 16 SCC 680].

16. The other area of dispute is that the Tribunal

after awarding compensation under the conventional

heads has awarded Rs.75,000/- towards loss of love and

affection and Rs.10,000/- awarded towards pain and

sufferings.

MACA No.3021 of 2021

17. In New India Assurance Co., Ltd vs.

Vineesh.J [ 2018 (3) SCC 619], the Hon'ble Supreme

Court has held that the Appellate Court can permit

variation of plus or minus 4 to 5 percent.

18. In the instant case, the maximum amount that

can be said to be excessive is Rs.75,000/-, that was

awarded under the head loss of love and affection. In

view of the law in Vineesh.J (supra) and the said amount

falls with the 5% permissible variation limits, for which

reason this appeal does not need to be admitted and then

be finally decided after hearing all parties. By the time

the appeal is finally disposed of and the appellant would

end up paying more amount that the disputed sum as

interest to the petitioners. Thus, I confirm the quantum

of compensation awarded by the Tribunal and answer

ground Nos (ii) and (iii) against the appellant.

MACA No.3021 of 2021

Ground No.(iv)

19. The Tribunal has awarded interest at the rate of

9% per annum, which the appellant contends is on the

higher side.

20. In Kishan Gopal and another v. Lala and

others - [(2014) 1 SCC 244] and in Anjani Singh and

others vs. Salauddin and others [ (2014) 15 SCC

582], the Hon'ble Supreme Court following the ratio in

MCD v. Uphaar Tragedy Victims Association [(2011)

14 SCC 481] has fixed interest at the rate of 9% per

annum on compensation amount paid under the Motor

Vehicles Act. Therefore, I do not find any error in the

Tribunal fixing the rate of interest at 9% per annum on

the compensation amount. Thus, I answer ground No.(iv)

also against the appellant.

21. On an overall appreciation of the pleadings and

materials on record, and the elaborate findings rendered

by the Tribunal, I do not find any error in the

MACA No.3021 of 2021

compensation awarded by the Tribunal.

22. The Honourable Supreme Court in New India

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.

23. It is to be borne in mind that the accident

occurred as early as on 26.8.2017. It is more than four

years since the petitioners have been knocking at the

doors of the Court seeking for compensation on account

of the death of their breadwinner. It is settled law that

the Tribunals are permitted to do some guess work and

also exercise their discretion in awarding reasonable and

just compensation, for which there cannot be any strait

jacket formula based on mathematical exactitude. I find

that the Tribunal has, after a threadbare analysis of the

facts and the law, judicially exercised its powers based on

MACA No.3021 of 2021

the provisions in the Motor Vehicles Act, 1988 and the

authoritative precedents of the Honourable Supreme

Court while arriving at the impugned conclusion. I do not

find any justifiable ground in the memorandum of appeal

warranting admission of the appeal, which will only be a

wastage of judicial time and a harassment to the

respondents.

24. Following the ratio in Kiran Sing (supra) and in

exercise of the powers of this Court under Order 41 Rule

11 of the Code of Civil Procedure, I decline to admit the

appeal as it is devoid of any merit.

Resultantly, I dismiss the appeal at the threshold.

Sd/-

 sks/3.11.2021                         C.S.DIAS, JUDGE