The New India Assurance Company ... vs Vasantha Menon
2021 Latest Caselaw 22804 Ker

                                                         "CR"
          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
             THE HONOURABLE MR. JUSTICE T.R.RAVI
 TUESDAY, THE 23RD DAY OF NOVEMBER 2021/2ND AGRAHAYANA, 1943
                    MACA NO. 438 OF 2013
AGAINST THE AWARD IN OPMV 1476/2011 OF MOTOR ACCIDENT CLAIMS
                     TRIBUNAL, ERNAKULAM
APPELLANT/3RD RESPONDENT:
          THE NEW INDIA ASSURANCE COMPANY LIMITED
          PERUMBAVOOR, NOW REPRESENTED BY ITS MANAGER,
          REGIONAL OFFICE, M.G.ROAD, KOCHI-11.
         BY ADVS.
         SRI.MATHEWS JACOB (SR.)
         SRI.P.JACOB MATHEW

RESPONDENTS/RESPONDENTS:
    1     VASANTHA MENON
          W/O. LATE M.M.MENON @ MADHAVA MENON M.,
          SIVAM HOUSE, C.C.NO. 40/6441,
          TD ROAD, ERNAKULAM-682035.
    2     MINI M.MENON
          D/O. LATE M.M.MENON @ MADHAVA MENON M.,
          SIVAM HOUSE, C.C.NO. 40/6441,
          TD ROAD, ERNAKULAM-682035.
    3     SREEKUMAR M.MENON
          S/O. LATE M.M.MENON @ MADHAVA MENON M.,
          SIVAM HOUSE, C.C.NO. 40/6441, TD ROAD,
          ERNAKULAM-682035.
    4     PRIYA M.MENON
          D/O. LATE M.M.MENON @ MADHAVA MENON M.,
          SIVAM HOUSE, C.C.NO. 40/6441,
          TD ROAD, ERNAKULAM-682035.
         BY ADVS.
         SMT.T.S.MAYA (THIYADIL)
         SMT.K.A.SUNITHA
         SRI.K.RAJEEV THIYADIL
         SRI.V.P.VIJI

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 15.09.2021, ALONG WITH CO.55/2013, THE COURT ON
23.11.2021 DELIVERED THE FOLLOWING:
 M.A.C.A. No.438/2013
& Cross Objn.55/2013
                                   2




               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 15TH DAY OF SEPTEMBER 2021 / 24TH BHADRA, 1943
                           CO NO. 55 OF 2013
AGAINST THE ORDER/JUDGMENT IN MACA 438/2013 OF HIGH COURT OF
                           KERALA, ERNAKULAM
CROSS OBJECTORS/RESPONDENTS 1-4/CLAIMANTS:

    1     VASANTHA MENON @ VASANTHA M.MENON
          W/O.LATE M.M.MENON @ MADHAVA MENON.M, SIVAM HOUSE,
          C.C.NO.40/6441, T.D.ROAD, ERNAKULAM. 682 035.
    2     MINI M.MENON
          D/O.LATE M.M.MENON @ MADHAVA MENON.M, SIVAM HOUSE,
          C.C.NO.40/6441, T.D.ROAD, ERNAKULAM. 682 035.
    3     SREEKUMAR M.MENON
          S/O.LATE M.M.MENON @ MADHAVA MENON.M, SIVAM HOUSE,
          C.C.NO.40/6441, T.D.ROAD, ERNAKULAM. 682 035.
    4     PRIYA M.MENON
          D/O.LATE M.M.MENON @ MADHAVA MENON.M, SIVAM HOUSE,
          C.C.NO.40/6441, T.D.ROAD, ERNAKULAM. 682 035.
           BY ADVS.
           SMT.T.S.MAYA (THIYADIL)
           SMT.K.A.SUNITHA
           SRI.V.P.VIJI

RESPONDENT:
          THE NEW INDIA ASSURANCE CO. LTD.
          PERUMBAVOOR, NOW REPRESENTED BY ITS MANAGER,
          REGIONAL OFFICE, M.G.ROAD,
          KOCHI-11.
               SRI.MATHEWS JACOB (SR.)
               SRI.P.JACOB MATHEW

        THIS     CROSS   OBJECTION/CROSS   APPEAL   HAVING   BEEN
FINALLY HEARD ON 15.09.2021, ALONG WITH MACA.438/2013,
THE COURT ON 23.11.2021 DELIVERED THE FOLLOWING:
 M.A.C.A. No.438/2013
& Cross Objn.55/2013
                                   3



                                                                     "CR"


                             T.R. RAVI, J.
              --------------------------------------------
                       M.A.C.A. No.438 of 2013
                                    &
                    Cross Objection No.55 of 2013
               --------------------------------------------
              Dated this the 23rd day of November, 2021

                              JUDGMENT

The appeal is filed by the 3rd respondent before the Tribunal.

The claimants before the Tribunal have preferred a Cross

Objection. The parties are referred to as per their status before

the Tribunal. The 1st claimant's husband, while walking along the

Chittoor road, Ernakulam, at about 5.40 AM on 16.5.2011, was

hit by an autorikshaw driven in a rash and negligent manner. He

was taken to Specialists Hospital, Ernakulam for treatment. While

undergoing treatment, he succumbed to the injuries on

24.5.2011. The deceased was a novelist. He had retired from the

Southern Naval Headquarters as Office Superintendent Grade I.

The wife and 3 children of the deceased preferred the claim

petition before the Tribunal. The Tribunal awarded a sum of

Rs.6,44,000/- as compensation. The insurer who was the 3 rd

respondent before the Tribunal has filed this appeal contending M.A.C.A. No.438/2013 & Cross Objn.55/2013

that the amount awarded is excessive.

2. Heard the counsel for the appellant and the

respondents.

3. The deceased was aged 76 years at the time of the

accident. He was earning a monthly pension of Rs.11,816/-.

According to the claimants, the deceased was getting Rs.5,000/-

per month from his literary works. Exhibit A22 photographs are

produced to prove that the deceased was a novelist. The counsel

for the Insurer submits that even though the claimants had not

proved that the deceased was earning Rs.5,000/- in addition to

his service pension, the Tribunal presumed that the deceased was

getting some income from his literary works and thus fixed the

total monthly income of the deceased as Rs.15,000/- for the

purpose of calculating the compensation. The Tribunal found that

the children of the deceased were employed and are not

dependants and hence 50% of the monthly income was deducted

towards personal expenses and living expenses of the deceased.

4. Another contention raised by the counsel for the 3 rd

respondent is that the claimants had received a sum of

Rs.85,176/-, under a mediclaim policy taken by one of the

claimants and hence the said amount should be deducted from M.A.C.A. No.438/2013 & Cross Objn.55/2013

the amounts awarded towards medical expenses. The Tribunal

relied on the judgment in National Insurance Co Ltd v.

V.S.Bijumon and others reported in 2011(1) KHC 776 and

held that the claimants are entitled to the entire amount spent by

them as compensation towards the medical expenses without

deducting the amount received under the Mediclaim policy.

5. The claimants have filed a cross objection. The counsel

for the claimants submits that the amount awarded by the

Tribunal is very low. According to the counsel, the amount

received under the mediclaim policy is not liable to be deducted

since the said amount is paid under a contractual liability and the

liability to pay compensation under the Motor Vehicles Act is a

statutory liability. The counsel contends that the Tribunal should

have considered the monthly income of the deceased as

Rs.16,860/-, having regard to the fact that the deceased was

earning income from his literary works, as proved by Exhibits

A22, A27, A25 and A26. It is also contended that the Tribunal

should not have deducted 50% towards personal expenses and

only one fourth should have been reduced going by the decisions

of the Hon'ble Supreme Court. It is pointed out that the amounts

awarded towards funeral expenses and loss of estate should be M.A.C.A. No.438/2013 & Cross Objn.55/2013

increased by Rs.5,000/- each and that the Tribunal has awarded

only Rs.15,000/- towards loss of consortium which ought to have

been Rs.40,000/-. Having considered the contentions raised by

either side, I am of the opinion that the compensation awarded by

the Tribunal has to be modified.

6. The contention of the claimants regarding the amount

awarded towards funeral expenses and loss of estate is justified.

An additional sum of Rs.5,000/- each is to be granted under the

said two heads. So also the claimants are entitled to an additional

sum of Rs.25,000/- under the head loss of consortium. The

contention of the claimants that the Tribunal went wrong in

deducting 50% of the monthly income towards personal expenses

cannot be sustained. A Division Bench of this Court in the decision

in Sujatha.P and others v. M/s. Oriental Insurance Co. Ltd

reported in [2017()5 KHC 568] has considered the issue and

after referring to Sarla Verma v. Delhi Transport Corporation

reported in [(2009) 6 SCC 121] held that, in a case where there

is only one surviving dependent family member, 50% of the

income has to be deducted. The 3rd claimant was examined as

PW1. Even though in the chief affidavit he had stated that all the

children are dependent on the patronage of the deceased, he has M.A.C.A. No.438/2013 & Cross Objn.55/2013

admitted in the cross-examination that he was an Architect living

in Manipal, that the 2nd claimant was a doctor settled in England,

that the 4th claimant was a journalist settled in Chennai working

with Times of India and that the 1 st claimant widow had retired

from the Indian Navy and is earning pension. As such, it cannot

be said that the children were financially dependent on the

deceased. The counsel for the claimants relied on to the decisions

in Smt. Manjuri Bera v. The Oriental Insurance Co Ltd and

another reported in [2007 KHC 3300], National Insurance

Co.Ltd vs Birender and others reported in [(2020) 11 SCC

356], and Rajesh and others v. Rajbir Singh and others

reported in [2013(3) KLT 89] to contend that the deduction of

50% towards personal expenses is not warranted.

7. In Manjuri Bera (supra), the Hon'ble Supreme Court

was considering whether a married daughter can be treated as a

dependent of the deceased. The above decision did not consider

the question regarding the amount to be deducted towards

personal expenses of the deceased. What was held was that even

if there is no loss of dependency, the claimant if he or she is a

legal representative will be entitled to compensation, the

quantum of which shall not be less than the liability flowing from M.A.C.A. No.438/2013 & Cross Objn.55/2013

Section 140 of the Act. Section 140 dealt with no-fault liability

and is no longer in the statute book after the amendment in

2019. In Birender (supra), the Apex Court considered whether

major sons of deceased who are married and gainfully employed

or earning, can claim compensation. The Court held that the claim

will be maintainable under Section 166, but the quantum of

compensation would depend on the extent of the dependency on

the deceased parent. On facts, the Court found that the claimants

were working as agricultural labourers on contract basis and were

largely dependent on their mother, a Government servant, and in

fact were staying with her. On a finding that the major sons were

dependents, the Court directed deduction of one third of the

income of the deceased towards her personal and living expenses.

The said decision will not apply on the facts of the case on hand.

Paragraph 22 of the judgment in Rajesh (supra), was relied on

to submit that 1/4th was deducted from the income towards

personal expenses of the deceased. However, the said decision

was rendered in a case where the widow and three minor children

were the claimants and the question was whether the amount to

be deducted towards personal expenses should be 1/3 rd or 1/4th.

The said decision also will not apply to the present case. M.A.C.A. No.438/2013 & Cross Objn.55/2013

8. Regarding the contention of the claimants that the

monthly income of the deceased ought to have been treated as

Rs.16,816/- instead of Rs.15,000/-, as against the claim of the

insurer that the amount should have been Rs.11,816/- and not

Rs.15,000/-, it is admitted that the deceased was receiving a sum

of Rs.11,816/- towards monthly pension. The evidence on record

(Exts.A22, A25, A26 and A27) establishes the claim that the

deceased was a novelist, that he had receipts apart from the

pension amount. PW1 has also given specific evidence regarding

the above fact. The statement that the deceased was earning

Rs.5,000/- apart from his pension has not even been challenged

in the cross examination. I hence do not find any reason not to

accept the above claim. The compensation under the head loss of

dependancy has to be modified. The claimants will be entitled to a

sum of Rs.5,04,480/-(16816x12x5x1/2). After deducting the sum

of Rs.4,50,000/- awarded by the Tribunal, the claimants will be

entitled to a sum of Rs.54,480/- under the above head.

9. Coming to the question whether amount received

under the mediclaim policy should be deducted, the Tribunal had

relied on the decision in V.S.Bijumon (supra). The counsel for

the Insurer points out that the said decision has been overruled M.A.C.A. No.438/2013 & Cross Objn.55/2013

by a Division Bench of this Court in the decision in National

Insurance Company Ltd. v. Akber Badsha reported in

[2015(4) KLT 442]. The counsel for the claimants have relied

on the decisions of the Apex Court in Helen v. Maharashtra

State Road Transport Corporation reported in [1998 KHC

568] and United India Insurance Co. v. Patricia Jean

Mahajan reported in [2002 KHC 986] and the judgments of

the Calcutta High Court and the Bombay High Court in New

India Assurance Co.Ltd. v. Bimal Kumar Shah and another

reported in [2019 KHC 3384] and Royal Sundaram Alliance

Insurance Co.Ltd v. Ajit Chandrakant Rakvi and another

reported in and [2020 KHC 2926] respectively. Similar

contentions taken relying on Helen (supra) and Patricia

(supra), were considered by the Division Bench in Akber

Badsha, and rejected. This Court in Akber Badsha (supra)

found that the Apex Court in Helen (supra) while considering a

claim under a life policy, had held that amounts received or

receivable, not only on account of the accidental death but which

would have been paid to the claimant even otherwise, cannot be

construed as "pecuniary advantage" liable for deduction. The said

principle was further explained in Patricia (supra), wherein the M.A.C.A. No.438/2013 & Cross Objn.55/2013

Apex Court held that deductions are admissible of such amounts

that the claimant receives as benefit, as a consequence of the

injuries sustained, which he would not have been otherwise

entitled to. In the case on hand, the claim under mediclaim policy

was received, for meeting the expenses at the Hospital, incurred

solely owing to the accident and the same could not have been

claimed otherwise. In Bimal Kumar Shah (supra), a Division

Bench of the Calcutta High Court considered the above judgments

of the Apex Court and the Division Bench judgment of this Court

in Akber Badsha (supra) and took a view that the amounts

received under Mediclaim policy is not deductible. The Calcutta

High Court has drawn a distinction between the claims under an

insurance policy and one under the Motor Vehicles Act as

contractrual and statutory, respectively. The Court has held that

the statutory liability cannot be reduced by amounts received

under a contractual liability, to which the claimant becomes

entitled on the basis of payment of premium. Even though the

Court had referred to the judgment in Akber Badsha (supra), in

my humble opinion, the reasoning in the judgment has not been

considered. All that is stated is that all the judgments cited in

support of deduction are rendered on the basis of a possible M.A.C.A. No.438/2013 & Cross Objn.55/2013

interpretation of the judgment in Helen Rebello (supra), but

without considering the principles which control the entire ratio -

that the liability of the insurer of the offending vehicle to pay

compensation is statutory whereas the liability to pay a sum to

the insured victim on payment of a premium paid from his own

earnings is a contractual liability. With great respect, I am not

able to accept the proposition contained in Bimal Kumar Shah

(supra) and am in respectful agreement with the reasoning

adopted in Akber Badsha (supra). The Calcutta High Court has

also not considered the essential difference between a claim

under a mediclaim policy and one under the Life Insurance policy

and the fact that in the case of the former, it relates to a

pecuniary loss.

10. I am of the opinion that the differentiation sought to be

brought out by the Division Bench of the Calcutta High Court by

treating the motor accident claim as a "statutory liability" and the

mediclaim as a "contractual liability" is not justified and according

to me there can be no such categorisation. The compensation

under a motor accident is one based on negligent driving giving

rise to a tortious liability. The Motor Vehicles Act has codified to a

certain extent the manner in which a claim has to be preferred M.A.C.A. No.438/2013 & Cross Objn.55/2013

and the procedure to be followed in considering the claim. The

Tribunal ascertains the quantum of compensation to be paid and

also determines the persons who are liable to pay the

compensation. So far as the liability of the Insurer is concerned, it

depends on the motor vehicle policy which has been pressed into

service. In a case where there is no valid insurance policy, the

Insurer cannot be held liable. That is to say, the Tribunal does not

find the Insurer liable on the basis of any statutory provision, but

on the basis of the Insurance policy which covers the offending

vehicle. There is a statutory obligation under Chapter XI of the

Motor Vehicles Act,1988 that all motor vehicles should have a

certificate of insurance, which should be in accordance with the

requirements stated in Section 147 of the Act. Section 156 of the

Act states about the effect of a certificate of insurance and

Section 157 provides for transfer of Certificate of Insurance. The

above provisions will clearly indicate that the liability of the

Insurer is based on the Indemnity contract. To say that the

liability of the insurer is a statutory liability hence, in my opinion

not entirely correct.

11. The judgment of the Bombay High Court in Ajit

Chandrakant Rakvi (supra) is rendered following the judgment M.A.C.A. No.438/2013 & Cross Objn.55/2013

of the Calcutta High Court and the considerations in the previous

paragraphs regarding the Calcutta High Court apply to the

judgment of the Bombay High Court and are not being reiterated.

In the light of the above, the amount of Rs.85,176/- received by

the claimants on account of the mediclaim policy is liable to be

deducted from the amount awarded under the head Medical

expenses.

12. In the result, the appeal is partly allowed and the

amount of Rs.85,176/- received by the claimants towards

mediclaim is deducted from the total compensation. So also, the

cross objection is partly allowed and a sum of Rs.89,480/- is

awarded as additional compensation. After deducting the amount

of mediclaim, the claimants are awarded an additional

compensation of Rs.4,304/- (Rupees Four Thousand Three

Hundred and Four only) with interest at the rate of 9% per

annum from the date of filing of the claim petition (16.09.2011)

till the date of realisation, with proportionate costs. The 3 rd

respondent insurer shall deposit the additional compensation

granted in this appeal along with the interest and proportionate

costs, before the Tribunal within two months from the date of

receipt of a certified copy of this judgment, after deducting any M.A.C.A. No.438/2013 & Cross Objn.55/2013

amount to which the claimants are liable towards balance court

fee and legal benefit fund. The disbursement of the compensation

to the claimants shall be in accordance with law.

Sd/-

T.R. RAVI JUDGE

dsn