Kerala High Court
Saraswathi vs Nizam Rassak@Nizam on 26 September, 2024
MACA NO. 541 OF 2021 1 2024:KER:73144
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 26TH DAY OF SEPTEMBER 2024 / 4TH ASWINA, 1946
MACA NO. 541 OF 2021
AGAINST THE JUDGMENT DATED 27.01.2020 IN O.P.(M.V.) NO.811
OF 2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA
APPELLANT/PETITIONER :
SARASWATHI
AGED 53 YEARS
AZHAKATHU COLONY, LEKSHAM VEEDU,
CHAVARA SOUTH P.O., THEKKUM BHAGOM,
KARUNAGAPPALLY.
BY ADVS.
GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.P.J.JOE PAUL
SRI.MANU SRINATH
RESPONDENTS/RESPONDENTS:
1 NIZAM RASSAK @ NIZAM
NAVAROJIPURAYIDOM VEEDU, ZACHARIYA WARD,
ALAPPUZHA P.O., ALAPPUZHA - 688 001.
2 RELIANCE GENERAL INSURANCE CO.LTD.
REPRESENTED BY ITS AREA MANAGER,
AREA OFFICE, XL/3599 ELIZABETH ALEXANDER MEMORIAL
BUILDING, SHANMUGHAM ROAD, MARINE DRIVE,
COCHIN - 682 035.
BY ADVS.
BALAMURALI K.P.
Arun Babu
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SHAJI T.M.
RENIL IQUBAL K.
AMBILI. G(K/1242/2000)
SRI. GEORGE A CHERIAN- R2
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 26.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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EASWARAN S., J.
----------------------------
M.A.C.A. No.541 of 2021
-----------------------------------
Dated this the 26th day of September, 2024
JUDGMENT
The legal heir of the deceased Rajamma lodged a claim before
the Motor Accidents Claims Tribunal, Alappuzha claiming compensation
on the death of her mother, who died in a motor accident on
04.7.2015.
2. The facts leading to the filing of O.P.(MV) reads as follows:
On 04.7.2015, while the deceased Rajamma was walking
through the side of the National Highway at Kalarcode, a car bearing
Registration No.KL-04/Z-5567 hit the victim, leaving her to fall down
and sustain serious injuries. Though, she was taken to the Medical
College hospital, Vandanam she succumbed to the injuries. The 1 st
respondent is the driver of the offending vehicle and the 2 nd respondent
is the Insurance Company.
3. Before the tribunal, the insurance company appeared and
contested the claim contending primarily that the deceased was not
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looked after by her daughter and she was left alone. It was only when
the appellant/petitioner came to know about the death of Smt.
Rajamma, the claim was lodged. Specific reliance was made on Ext.A3
inquest report to contend that the dead body of the deceased was
unidentified while the inquest was done and the same was kept in the
mortuary for a period of four days. It was on seeing the publication of
the photographs in the newspapers that the claimant had come
forward for claiming the dead body. The tribunal accepted the
aforesaid contention of the insurance company and declined to grant
sufficient compensation under the head loss of love and affection and
loss of dependency and granted only a nominal amount of Rs.20,000/-.
It is aggrieved by the said award that the appellant has approached
this Court with the present appeal.
4. Heard Sri. P.J. Joe Paul, the learned counsel appearing for
the appellant/petitioner and Sri. George A Cherian, the learned counsel
appearing for the respondent Insurance Company.
5. The learned counsel appearing for the appellant contended
that going by the ration card produced before this Court as additional
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document under Order 41, Rule 27 of the Code of Civil Procedure, it is
clear that her mother was staying with her. The learned counsel further
pointed out that the finding of the tribunal that the claimant is not
entitled to get compensation under the head loss of dependency
cannot be sustained for reasons more than one. According to the
learned counsel, the financial dependency is not the sole criteria for the
tribunal to award compensation under the head loss of dependency.
The dependency of the daughter on her mother may be under various
circumstances, and there cannot be a straight jacket formula for
determining the compensation.
6. On the other hand, the learned counsel appearing on
behalf of the insurance company pointed out that the claim lodged by
the appellant/petitioner does not deserve any consideration as there is
no bonafide on the part of the appellant in claiming compensation
under the head loss of dependency. Based on Ext.A3 inquest report,
the learned counsel pointed out that the body of the deceased was
unidentified at the time of the inquest. It is also pointed out that at
about four days the body remained unattended and it was only when
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the photographs of the deceased were published in the newspapers,
the appellant/claimant came forward for claiming the body of the
deceased, Smt. Rajamma.
7. In reply Sri. Joe Paul, the learned counsel appearing for
the appellant/petitioner contended that there is no material basis for
raising these contentions. No doubt these contentions were raised in
the written statement, however, the insurance company had not
produced any evidence to support their claims. Therefore, it is the
specific case of the learned counsel for the appellant that the tribunal
erred in merely relying on the averments raised in the written
statement and thereby declined the relief claimed under the head loss
of dependency.
8. I have considered the rival submissions raised across the
Bar.
9. The facts as stated above would lead to a very fluid
situation. On the one hand, the appellant claimed compensation under
the head loss of dependency. On the other hand, the insurance
company denied the claim for loss of dependency, primarily pointing
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out two aspects. 1) There is no financial dependency between the
appellant and her mother and 2) The claim raised by the appellant is
not bonafide because of the fact that even after the death of the
deceased, the body was lying unidentified for merely four days and it
was thereafter that the claimant came forward to accept the dead body
of the deceased and that too on seeing the photographs in the news
papers.
10. It is secured law that for claiming compensation under
the head loss of dependency, the claimant need not prove the financial
dependency. The dependency on a mother would be more than that of
a financial dependency. This Court, in Radhakrishan N. v.
Ajithkumar N.S. [2024 (6) KHC 160], by following the Division Bench
judgment of this Court in Thomas George P. (Dr.) and another v.
O.Santha and others [2016 (4) KHC 237], has held that for claiming
compensation for the death of a mother, the legal heirs need not prove
their financial dependency. If that be so, the claim preferred by the
appellant was perfectly maintainable before the tribunal.
11. Coming to the precarious issue regarding the contention
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raised by the insurance company, this Court will have to balance the
rival contentions raised by the parties. On the one hand, the appellant
contends that she is entitled to get compensation. The argument of the
learned counsel for the appellant/claimant is that her mother had gone
on a pilgrimage and is not conversant with the operation of a mobile
phone. It is also submitted that under normal circumstances, when her
mother goes on pilgrimage, she used to return after four or five days
and that is the reason why there was no suspicion on the side of the
appellant when her mother did not return after a particular date.
12. It is true that as and when a contention regarding neglect
of the claimant to look after her mother was raised by the insurance
company, the burden was on their shoulders to prove their contention.
It is pertinent to note that the appellant did not mount in the box. But,
however, having said so, this Court cannot ignore the fact that the
insurance company, apart from the averments made in the written
statement, did not produce any material evidence to substantiate their
contentions.
13. Viewed in the above perspective, this Court cannot
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sustain the finding of the learned tribunal in paragraph No.13 of the
award that the appellant/claimant did not come forward immediately
on the death of the deceased Smt.Rajamma to claim the dead body
and it was only after four days that the dead body was claimed. It is
noticed the said finding has been rendered by the tribunal without any
material basis or even an iota of evidence placed before the tribunal.
Therefore, this Court will have to necessarily interfere with the findings
rendered by the tribunal in awarding compensation.
14. As a result of the above discussion, the appellant is
entitled to succeed. The award of the tribunal in O.P.(MV) No.811 of
2015 dated 27.01.2020 is interfered with to the aforesaid extent. The
notional income of the deceased, Smt.Rajamma, though a homemaker,
is fixed in terms of the principles laid down by the Hon'ble Supreme
Court in Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Company Limited [(2011) 13 SCC 236] at Rs.10,000/-.
Thus, the appellant is entitled to get an amount of Rs.3,00,000/-
(Rs.10000x12x5/2) under the head loss of love and affection and loss
of dependency. The tribunal has already awarded an amount of
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Rs.20,000/- towards the loss of dependency. Accordingly, the
appellant is entitled to get the balance Rs.2,80,000/- (Rupees Two
Lakh Eighty Thousand only) towards compensation under the head of
loss of dependency. The aforesaid amount shall carry interest at the
rate of 9% from 10.09.2015 from the date of realisation with
proportionate cost. The insurance company shall deposit the amount
within a period of one month from the date of receipt of a copy of this
judgment. The appellant/petitioner shall furnish the details of the bank
account to the insurance company for transfer of the amount. The
appeal is ordered accordingly.
15. Though, in the award impugned in this appeal, the right of
recovery of the amount from the owner has been granted, the learned
counsel appearing for the insurance company pointed out that this
Court, by order dated 11.10.2021, had directed 1st respondent to
produce the original of the driving license or produce the certificate
from the Regional Transport Officer stating that the license is in the
custody of the RTO, Alappuzha. In compliance of the said direction,
Annexure R1(a), the original extract of driving license is produced
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along with the counter affidavit of the 1st respondent. Since the driver
had a valid license at the time of accident, the findings of the tribunal
with regard to pay and recovery cannot be sustained.
16. Although no appeal has been preferred by the owner of
the offending vehicle, this Court can invoke the powers under Order 41
Rule 33 of the Code of Civil Procedure 1908. Hence, this Court deems it
appropriate to modify the award by deleting the clause that enables
the insurance company to pay and recover the amount from the
owner. Before parting with this case, this Court would certainly
appreciate the fairness shown by Sri. George M. Cherian, the learned
counsel appearing on behalf of the insurance company, appraising the
court correctly on facts as well as on law.
Registry is directed to return the original of the ration card
after retaining a copy thereof in this appeal.
Sd/-
EASWARAN S.,
JUDGE
NS
