The New India Assurance Company ... vs Gomathy
2022 Latest Caselaw 563 Ker

MACA NO. 150 OF 2022
                                   1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
   FRIDAY, THE 14TH DAY OF JANUARY 2022 / 24TH POUSHA, 1943
                        MACA NO. 150 OF 2022
AGAINST THE JUDGMENT IN OP(MV) 1164/2014 OF THE MOTOR ACCIDENT
                     CLAIMS TRIBUNAL ,THRISSUR
APPELLANT/3RD RESPONDENT:

            THE NEW INDIA ASSURANCE COMPANY LTD.
            METTUPALAYAM, REPRESENTED BY ITS ASSISTANT MANAGER,
            REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.

            BY ADVS.
            GEORGE CHERIAN (SR.)
            ALEXY AUGUSTINE
            GEORGE A.CHERIAN


RESPONDENTS/PETITIONERS

    1       GOMATHY
            AGED 44 YEARS
            W/O.LATE SEKHAR, DOOR NO.27, THATHARA THERUVU P.O.,
            VELLORE, TAMIL NADU, PIN - 632 002.

    2       DIVYA
            AGED 29 YEARS
            D/O.LATE SEKHAR, DOOR NO.27, THATHARA THERUVU P.O.,
            VELLORE, TAMIL NADU, PIN - 632 002.

    3       SARAVANAN
            AGED 21 YEARS
            S/O.LATE SEKHAR, DOOR NO.27, THATHARA THERUVU P.O.,
            VELLORE, TAMIL NADU, PIN - 632 002.


     THIS   MOTOR   ACCIDENT   CLAIMS    APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 14.01.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 150 OF 2022
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                        JUDGMENT

The appellant/insurer was the 3rd respondent in O.P.

(MV) No. 1164 of 2014 on the file of the Motor Accidents

Claims Tribunal, Thrissur. The respondents in the appeal

were the petitioners before the Tribunal. As the appellant

has admitted its liability, the appellant has not impleaded

the respondents 1 and 2 before the Tribunal as parties in

the appeal. Therefore, the parties are, for the sake of

convenience, referred to as per the status before the

Tribunal.

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 Sekhar

(deceased), the husband of the 1st petitioner and father of

the petitioners 2 and 3. It was the case of the petitioners MACA NO. 150 OF 2022

that, on 08.03.2014, while the deceased was driving a lorry

bearing registration No.TN-23AC-6336, along the

Palakkad-Thrissur National Highway, another lorry bearing

registration No.TN 40B 3670 (offending lorry), driven by

the 2nd respondent in a rash and negligent manner, hit the

lorry of the deceased. The deceased sustained fatal

injuries and lost his life instantaneously. The 1st

respondent was the owner and the 3rd respondent was the

insurer of the offending lorry. The deceased was a driver

by profession and was earning a monthly income of

Rs.16,000/-. The petitioners were the dependents of the

deceased. Hence, they claimed a compensation of

Rs.33,66,500/- from the respondents, which claim was

limited to Rs.30,00,000/-.

3. The 2nd respondent did not contest the proceeding

and was set ex parte.

4. The 1st respondent had filed a written statement

contending that the accident occurred due to the MACA NO. 150 OF 2022

negligence of the deceased. The 1st respondent stated

that as the offending lorry was insured with the 3 rd

respondent, it was the 3 rd respondent who has to

indemnify the liability of the 1st respondent arising out of

the accident.

5. The 3rd respondent-insurer had filed a written

statement admitting that the offending lorry had a valid

insurance policy. Nonetheless,the 3rd respondent disputed

the age, income and occupation of the deceased.

6. The petitioners had produced and marked Exts.A1

to A15 in evidence. The respondents did not let in any

evidence.

7. The Tribunal, after analysing the pleadings and

materials on record, particularly taking note of Ext.A12

salary certificate issued by the employer of the deceased,

fixed the monthly salary of the deceased at Rs.16,000/-

and permitted the petitioners to recover from the 3 rd

respondent an amount of Rs.17,24,800/- with interest and MACA NO. 150 OF 2022

cost.

8. Aggrieved by the allowing of the claim petition,

the 3rd respondent-insurer is in appeal.

9. Heard; Sri.George Cherian, the learned Senior

Counsel appearing for the appellant/3rd respondent-

insurer.

10. The principal grounds of challenge in the

memorandum of appeal are: (i) the fixation of income of

the deceased at Rs.16,000/- per month is wrong; (ii) the

multiplicand adopted by the Tribunal is excessive; and (iii)

the compensation allowed towards loss of dependency is

on the higher side.

Ground No.(i)

11. The specific case of the petitioners in the claim

petition was that the deceased was a professional driver

working in Siva Sakthi Transport, Tamil Nadu. In order to

substantiate their pleadings, they produced Ext.A12 salary

certificate. The Tribunal accepted the said salary MACA NO. 150 OF 2022

certificate and fixed the salary of the deceased at

Rs.16,000/- as stated in Ext.A12. The respondents have

not let in any contra evidence to discredit Ext.A12 or to

controvert the pleadings in the claim petition.

12. The learned counsel appearing for the appellant

argued that the Hon'ble Supreme in Chandra @

Chnada @ Chandraram v. Mukesh Kumar [ 2021 SCC

Online 850] has fixed the notional monthly income of a

driver who lost his life in an accident in the year 2016 at

Rs.8,000/- Therefore, the fixation of the monthly income

of the deceased at Rs.16,000/- is excessive.

13. In Chandra (supra), the Hon'ble Supreme Court

had fixed the notional income of the deceased driver at

Rs.8,000/- per month, only for the reason that the

petitioners therein had not produced any material to

substantiate the income of the deceased.

14. In the case at hand, the petitioners have

produced Ext.A12 salary certificate issued by the employer MACA NO. 150 OF 2022

of the deceased and also Ext.A9 driving licence of the

deceased to prove that he was a heavy vehicle driver. .

15. Liksewise, in Minu Rout & Anr v. Satya

Pradyumna Mohapatra & Others [(2013) 10 SCC 695],

the Hon'ble Supreme Court has fixed the notional monthly

income of a driver who lost his life in an accident in the

year 2004 at Rs.6,000/-.

16. Taking into account Ext.A12 salary certificate

read by Ext.A9 driving licence and the fact that the

accident occurred in the year 2014, I do not find any error

in the Tribunal fixing the salary of the deceased at

Rs.16,000/- as certified in Ext.A12. Hence, I answer

Ground No.(i) against the appellant.

Ground No.(ii)

17. In view of the finding on Ground No.(i), I hold

that the multiplicand fixed by the Tribunal, following the

principles in Sarala Verma v Delhi Transport

Corporation [2010(2) KLT 802 (SC)] and National MACA NO. 150 OF 2022

Insurance Company Ltd. v. Pranay Sethi [(2017) 16

SCC 680] to be just and reasonable. Thus, I answer

Ground No.(ii) also against the appellant.

Ground No.(iii)

18. The deceased was aged 49 years at the time of

the accident/death. The Tribunal has, following the ratio

in Sarala Verma and Pranay Sethi (supra), fixed the

multiplier at '11', deducted one- third of the compensation

towards the personal living expenses of the deceased and

added 10% towards future prospects, and accordingly

awarded an amount of Rs.15,48,800/- for loss of

dependency. I do not fiind any error or illegality in the

compensation awarded by the Tribunal for loss due to

dependency.

19. On a consideration of the pleadings and materials

on record and the elaborate findings rendered by the

Tribunal, following the principles in Sarala Verma and

Pranay Sethi (supra), I hold that there is no error or MACA NO. 150 OF 2022

wong in the impugned award passed by the Tribunal.

20. It is to be borne in mind that, the accident

occurred in the year 2014. It is more than seven years

years since the petitioners have been knocking at the

doors of the courts seeking compensation. It is trite, 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 straight

jacket formula based on arithmetical exactitude. I find that

the Tribunal has, after a threadbare analysis of the facts,

judicially exercised its powers based on the provisions of

the Act and the authoritative precedents of the Honourable

Supreme Court, while arriving at the conclusion in the

impugned award. I am convinced that there are no

justifiable reasons in the memorandum of appeal

warranting admission of the appeal, which would only be a

wastage of judicial time and harassment to the

respondents who hail from Tamil Nadu.

MACA NO. 150 OF 2022

21. 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.

In the result, following the ratio in Kiran Sing &

Ors. (supra) and exercising the powers of this Court under

Order LXI Rule 11 of the Code of Civil Procedure, I hold

that the appeal is devoid of any merit and does not warrant

to be admitted. Resultantly, I dismiss the appeal at the

threshold.

ma/14.01.2022                    Sd/- JUSTICE C.S.DIAS

                       /True copy/