National Insurance Company Ltd vs Suja James
2023 Latest Caselaw 1719 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
  WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944
                        MACA NO. 2466 OF 2016
AGAINST THE DECREE/AWARD IN OP(MV) 258/2013 OF MOTOR ACCIDENT
                        CLAIMS TRIBUNAL PALA
APPELLANT:

             NATIONAL INSURANCE COMPANY LTD
             KANJIRAPALLY NOW REPRESENTED BY ITS MANAGER
             KOCHI REGIONAL OFFICE, OMANA BUILDING,
             M.G ROAD, KOCHI 35.
             BY ADVS.
             SRI.MATHEWS JACOB (SR.)
             SRI.P.JACOB MATHEW
             SMT.PREETHY R. NAIR


RESPONDENTS:

    1        SUJA JAMES
             VADAKKETHARA HOUSE, KIDANGOOR P.O, PIN 686 572
    2        JAICY JAMES
             D/O. JAMES, VADAKKETHARA HOUSE, KIDANGOOR P.O,
             PIN 686 572
    3        JOSE JAMES
             S/O. JAMES, VADAKKETHARA HOUSE, KIDANGOOR P.O,
             PIN 686 572
    4        CHACKO JOSEPH,
             VADAKKETHARA HOUSE, KIDANGOOR P.O, PIN 686 572
    5        NAITHY
             W/O. CHACKO, VADAKKETHARA HOUSE, KIDANGOOR P.O,
             PIN 686 572
             BY ADV SRI.S.PRASANTH
             SMT.STEPHANY SHARON


     THIS    MOTOR   ACCIDENT   CLAIMS    APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 01.02.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 2466 OF 2016               2

                             JUDGMENT

This appeal has been impelled by the National Insurance

Company Ltd., impugning the Award of the Motor Accidents Claims

Tribunal, Pala ('Tribunal' for short) in O.P(MV)No.258 of 2013, on

various grounds.

2. Sri.Mathews Jacob - learned Senior Counsel, instructed by

Sri.P.Jacob Mathew - learned counsel for the appellant, argued that

Tribunal has grossly erred in fixing the liability on his client because

the vehicle which was involved in the accident was, in fact, substituted

by the one driven by respondent No.1, with an unholy intention of

obtaining gratification to the claimants; and hence that his client ought

to have been fully exonerated from such liability.

3. As an adscititious argument, the learned Senior Counsel

submitted that, in any event, the amounts granted in the Award are in

excess because, not more than Rs.15,000/- could have been awarded

by the Tribunal under the heads 'Funeral Expenses' and 'Loss of

Estate'; while under the head 'Loss of Consortium', only of Rs.40,000/-

could have been given, especially when the claimants had asked only

Rs.50,000/-. He argued that, except the wife of the deceased, other

claimants are all major children and the parents of deceased, who are

not entitled to any compensation for 'Loss of Dependency', since they

were not dependent on him. The learned Senior Counsel, therefore,

prayed that this appeal be allowed.

4. Smt.Stephany Sharon - learned counsel appearing for

respondent No.3, argued that the contentions of the appellant are

untenable and without basis, particularly when the documents on

record, especially Ext.A6 - Charge Sheet, clearly show that the

accident occurred on account of the negligence of the rider of the

offending Autorickshaw. She argued that, without the rider and owner

of the vehicle being arrayed as a party in this case, no such argument

could be ever countenanced; and that, in any event, the Award now

settled by the Tribunal is justified and commensurate to the trauma

suffered by her clients.

5. I have considered the afore rival submissions and have also

gone through the documents and evidence on record - copies of which

have been made available across the Bar by the learned counsel for the

parties, with the specific agreement that this Court can rely upon the

same without dispute.

6. Going by the undisputed facts in this case, Late James was

involved in an accident, allegedly on account of the rash and negligent

driving of an Autorickshaw, which was owned by the original 2nd

respondent and driven by the original 1st respondent in O.P(MV)No.258

of 2013 (who will hereinafter be referred to as the "owner" and

"driver" respectively, wherever required). Sri.James succumbed to the

injuries and his wife, children and parents filed O.P(MV)No.258 of

2013 before the Tribunal.

7. A contention was impelled on behalf of the appellant before

the Tribunal, that the offending vehicle was not the Autorickshaw, but

a Jeep; and that it was on account of a collusion between the cousin of

Late James - a certain Sri.Justine, and the "owner" and "driver" of the

Autorickshaw, that the Police had settled Ext.A6 - Charge Sheet. As

seen above, they also say that the amounts granted in favour of the

respondents, under some of the heads, are incorrect.

8. However, when one examines the evidence on record, it is

indubitable that, soon after the accident, Ext.A1 - FIR was registered,

based on Ext.A2 First Information Statement. No doubt, the informant

did not know the vehicle involved and therefore, what is recorded

therein was that it is an "unidentified" one.

9. However, RW2 - who is the investigating officer of the Police

Department, deposed that since the vehicle was untraceable after the

accident, it took some time for the Police to complete investigation;

and that the offending vehicle was thereafter traced and its owner and

driver implicated in the offence, nearly four months later. His

deposition, which remains unchallenged, is to the specific effect that

Ext.A6 - Charge Sheet contains the details of the offending vehicle, as

also that of the "driver" and "owner"; and that the accident occurred

on account of the negligence of the driver. He has also explained that

the investigation took time and that it is, therefore, that the names of

the "owner" and "driver" and the identity of the vehicle were

incorporated nearly four months later.

10. The evidence of RW3 remains unimpeached even in cross-

examination; and I do not, therefore, see how the appellant can now

still allege that the offending vehicle was not the Autorickshaw, but

another one. There is absolutely no evidence led by them in

substantiation of their plea, except that they rely on Exts.A1 and A2 -

which are the FIR and First Information Statement respectively,

registered and recorded soon after the accident occurred, in which

certainly, the informant did not have the details of the identity of the

vehicle. This, by itself, cannot discredit the evidence of RW3, who is a

Police Officer and whose credibility has not even been attempted to be

assailed by the appellant during examination.

11. That said, this Court is now enjoined to consider whether the

Award settled by the Tribunal is in order.

12. In this regard, I find some force in the submission of the

learned Senior Counsel that, under the heads 'Funeral Expenses' and

'Loss of Estate', not more than Rs.15,000/- each could have been

awarded, going by the judgment of the Hon'ble Supreme Court in

National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT

662].

13. Further, as regards the income of the deceased, the learned

Senior Counsel argues that since the accident happened in the year

2012 and since the victim was 53 years at that time, only 10% "Future

Prospects" could have been granted, contrary to 15% which has now

been reckoned.

14. Here, again, I find favour with the submissions of the learned

Senior Counsel because only 10% could have been offered as "Future

Prospects" going by the judgment in Pranay Sethi (Supra); but when

it comes to fixing of notional income, I do not think that the Tribunal

has erred. This is because, as per the standardization adopted by the

Hon'ble Supreme Court in Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC

236], the notional income of a person, which is unascertainable in the

year 2012, is Rs.8,500/-; while what has been adopted by the Tribunal

is only Rs.8,000/-. Therefore, adding 10% "Future Prospects" to this,

which is admitted, the income reckonable for the deceased would have

been Rs.9,350/-, instead of Rs.9,200/- as has been now adopted by the

Tribunal.

15. Obviously, therefore, the Award under the head 'Loss of

Dependancy' does not require to be touched upon because, even

assuming that the percentage for "Future Prospects" adopted is wrong,

the claimants would be entitled to have the income of the victim fixed

to a larger figure, as I have already explained above.

16. Before I close, I must also deal with another argument of the

learned Senior Counsel that, 'Loss of Consortium' could have been

awarded only to the wife of the deceased and not to his children

because, they were all major and not depended upon him. His

argument is also that, in such regard, only Rs.40,000/- could have been

awarded, instead of Rs.1 Lakh as has been now done by the Tribunal.

17. I am afraid that I cannot find favour with the afore contention

at all because, the question of dependency is one of the facts, which

the appellant ought to have pleaded and proved specifically. Merely

because the children of the deceased were major, it would not mean

that they were not depended upon him; and unless it was properly

proved, the Tribunal certainly could have granted each of them

Rs.40,000/-, even going by Pranay Sethi (Supra). However, what has

been granted by the Tribunal is only Rs.1 Lakh; and therefore, I do not

think that this Court requires to modify it in any manner whatsoever.

The contentions of the appellant in this regard are, therefore, repelled.

In the afore circumstances, I allow this appeal in part, with the

following directions:

(a) The amount granted under the head 'Funeral Expenses' is

reduced to Rs.15,000/-, from Rs.25,000/- as now ordered by the

Tribunal.

(b) The amount under the head 'Loss of Estate' is reduced to

Rs.15,000/-, from Rs.25,000/- as has been now awarded by the

Tribunal.

In all other respects, the impugned Award of the Tribunal will

remain unaltered.

Needless to say, any amount already deposited before the

Tribunal will be eligible to be received by the claimants/respondents in

this appeal.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/1.2