Kerala High Court

Icici Lombard Gic Ltd vs Ramachandran on 10 September, 2021

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
                           MACA NO. 992 OF 2014
AGAINST THE ORDER/JUDGMENT IN OPMV 279/2008 OF MOTOR ACCIDENT CLAIMS
                         TRIBUNAL, PATHANAMTHITTA
APPELLANT/S:

           ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
           KANNANKERI ESTATE, 3RD FLOOR, SHANMUGHAM ROAD,
           MARINE DRIVE, ERNAKULAM, PIN-670 001.

           BY ADV SRI.R.AJITH KUMAR (128/84)



RESPONDENT/S:

     1     RAMACHANDRAN, AGED 49 YEARS,
           S/O.CHAYICHAN, CHANKINGANAL THODI HOUSE,
           RANDATHANI P.O, MALAPPURAM.676 510.

     2     JAYASREE, AGED 44 YEARS, W/O.RAMACHANDRAN,
           CHANKINGANAL THODI HOUSE, RANDATHANI P.O,
           MALAPPURAM.676 510.

     3     SURESH V.,
           100-1, SOUTH RAILWAY ROAD, KUMARASWAMY PET,
           DHARMAPURI P.O, DHARMAPURI DISTRICT,
           TAMILNADU-609 001.

     4     GOBI R.,
           S/O.RAMAN M., 41/20A, MARULKARAN STREET,
           DHARMAPURI P.O, DHARMAPURI DISTRICT,
           TAMILNADU - 609 001.

           BY ADVS.
           SRI.N.BABU VARGHESE
           SRI.T.K.KOSHY


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON   10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 M.A.C.A.No.992/2014                 2




                            JUDGMENT

This is an appeal filed by the insurance company challenging

the quantum of compensation awarded by the Tribunal in O.P.

(MV).No.279 of 2008. The claim petition was filed by the

respondents 1 and 2 in this appeal seeking compensation for the

death of one Shreejith, who was aged 12 years at the time of

accident. He was the son of the respondents 1 and 2. The total

amount of compensation awarded by the Tribunal was

Rs.6,96,000/-.

2. Heard both the sides. The learned counsel for the

appellant insurance company contends that the amount awarded

by the Tribunal under the head of loss of dependency is

Rs.4,50,000/- and which is on the higher side. In support of the

said contention the learned counsel points out that in the decision

rendered by the Hon'ble Supreme Court in Rajendra Singh v.

National Insurance Company Ltd. [(2020) 7 SCC 256], in

respect of an accident occurred on 25.12.2012, wherein a boy aged

12 years died, the Hon'ble Supreme Court fixed the compensation

for loss of dependency as Rs.2,70,000/-. On the other hand, the

learned counsel for the respondents 1 and 2 placed reliance upon

the judgment of this Court in National Insurance Company Ltd.

v. K.K.Assainar (2019 (4) KLT 39) wherein this Court referred

to a large number of decisions rendered by the Hon'ble Supreme

Court and also by this Court. After elaborate discussion on the

legal principles, a specific formula was prescribed for determining

the compensation in respect of claims for the death of children up

to the age of 15 years. On examining the various aspects of this

case, I am of the view that in the light of the principles broadly

discussed by this Court in Assainar (supra), which was based on

the legal principles laid down by the Hon'ble Supreme Court in

various decisions, the same can be applied in this case. The

crucial aspect to be noticed in this regard is that the guidelines

stipulated by this Court in Assainar (supra) includes assessment

of compensation by taking into account the periodical increase in

the income consequent to inflation and other related aspects.

Therefore, it represents a scientific finding which can be safely

relied on for determining compensation in respect of accidents

occurred at any point of time. The learned counsel for the

insurance company highlighted that the said decision cannot be

made applicable to this case as the said judgment pertains to a

student aged 15 years, whereas in this case there is no material to

arrive at the conclusion that he was a student. However, I am not

inclined to accept the said contention. In the social conditions

prevailing in the State of Kerala, a child aged 12 years would

certainly be a student and it is practically impossible to conclude

otherwise, in the absence of any materials, suggesting such

possibility.

3. With regard to the reliance on the judgment in

Rajendra Singh (supra), it can be seen from the observations

contained therein that, there is nothing to indicate as to whether

the financial and social background of the claimants therein were

similar to that of this case. In that case, the Tribunal fixed the

total compensation as Rs.2,95,000/- i.e Rs.2,70,000/- towards loss

of dependency and Rs.25,000/- towards funeral expenses. The

appeal filed by the claimant seeking enhancement of compensation

was dismissed by the High Court and challenging the same, they

approached the Honourable Supreme Court. There was also a

challenge against the finding of contributory negligence at the rate

of 50%. With regard to the quantum of compensation, the basic

challenge before the Honorable Supreme Court was on the ground

of additional compensation for future prospects of the deceased

child. The Honourable Supreme Court found that, in the case of

children, future prospects need not be considered while assessing

the compensation. The deduction of 50% towards contributory

negligence was also set aside. Thus, it is evident that, there was no

question before the Honourable Supreme Court, as to the amount

to be awarded under the head of compensation for loss of

dependency in respect of the death of the child, based on notional

income. In this case, the claim of the respondent is not based on

future prospects and hence the decision in Rajendra Singh,

cannot be made applicable to the facts of this case.

4. In such circumstances, I am of the view that the

calculation as per the guidelines laid down in Assainar (supra) can

be accepted. While computing the compensation in the manner as

mentioned in Assainar (supra) the amount of compensation under

the head of loss of dependency would come to Rs.4,70,000/-

(47000 x 15 x 2/3). (As per the table prepared by the learned judge

in the said judgment, in respect of the accident occurred in the

year 2007-2008 the annual income to be taken is Rs 47,000/-. In

this case the accident occurred on 20.12.2007 and hence it falls in

the financial year 2007-2008). The award under the head of loss of

dependency by the Tribunal is Rs.4,50,000/-. Therefore, the

compensation awarded by the Tribunal is lesser by Rs.20,000/-.

Even though no appeal is filed by the respondents seeking

enhancement, I am inclined to grant the said additional amount in

this appeal to the respondents, as the provisions relating to

compensation in Motor Vehicles Act, being a welfare legislation,

the rights of the victims have to be protected by ensuring "just

compensation" to them. Moreover, I am interfering with the

quantum of compensation in respect of some other heads in favour

of the appellant. The above finding is fortified by the decision of a

Division Bench of Madras High Court in Royal Sunderam

Alliance Insurance Company Ltd v. Sharmila and others

(2018 ACJ 2720), wherein, it was observed as follows:

"9. Though the appeal has been preferred by insurance company, by re - appreciating the evidence on record and applying the law, as on date, this court has enhanced the compensation from Rs. 46,60,000 to Rs. 60,60,000,even in the absence of appeal / cross - appeal by the claimants, only in an endeavour to award just and reasonable compensation. This court has power and jurisdiction to do so by invoking O.41, R.33, Civil Procedure Code and S.151, Civil Procedure Code and Art.227 of the Constitution of India, which has also been recognized by the Hon'ble Apex Court in Nagappa v. Gurudayal Singh, 2003 ACJ 12 (SC)."

5. The learned counsel for the insurance company points

out that Rs.25,000/- awarded by the Tribunal under the head of

funeral expenses is excessive by Rs.10,000/-. However, I am of the

view that no interference is warranted in the said amount. This is

in view of the fact that the amount awarded by the Tribunal under

the head of loss of estate is only Rs.5,000/- and therefore, lesser by

Rs.10,000/-.

6. Another contention of the learned counsel for the

appellant is regarding the amount of Rs.2,00,000/- granted by the

Tribunal under the head of loss of love and affection. In this

regard, the learned counsel placed reliance upon the decisions

rendered by the Hon'ble Supreme Court in United India