JUDGMENT

Dated this the 31st day of July, 2024 This appeal and the cross objection arise from the Award dated 16.09.2017 in O.P.(M.V.) No.640 of 2012 on the files of the Additional Motor Accidents Claims Tribunal, Mavelikara. While the appeal is filed by the 3rd respondent Insurance Company challenging the Award, the cross objection has been filed by the petitioners in the O.P.(M.V.) seeking enhancement.

Facts in Brief:

2. Gopalan, aged 43 years, a fish vendor by avocation, while riding a motorcycle bearing No. KL-04/T-8714, from his home to the fish market, met with an accident in front of Hero Power City Showroom, north of MSM College, Kayamkulam on 27.03.2012, at 6.00 a.m. A pick up van bearing Reg.No.KL-29/C-7401 coming from the opposite direction had collided with the motorcycle causing Gopalan to fall onto the road and sustain serious injuries. He was rushed to the Govt. Hospital Kayamkulam, but succumbed to the injuries on the way. The wife, son and daughter of deceased Gopalan filed the above O.P.(M.V.) alleging that the accident happened due to the rash and negligent driving of the pick up van which was owned by the 2nd respondent and driven by the 1st respondent in the O.P.(M.V). The appellant herein, the insurer of the pick up van, was arrayed as the 3rd respondent in the O.P.(M.V.).

Proceedings before the Tribunal:

3. The driver and owner, viz., the 1st and 2nd respondents in the O.P. (M.V.) remained exparte. The appellant Insurance Company filed a written statement admitting the insurance policy as valid and subsisting during the relevant time. Appellant, however, contended that the accident occurred due to the negligence of deceased Gopalan. It was also contended that since the driver of the vehicle had no valid driving licence to drive the pick up van at the time of the accident, the Insurance Company is not liable to indemnify the owner. Appellant also challenged the amount of compensation sought under various heads and sought dismissal of the O.P.(M.V). Tribunal framed four issues and the parties went to trial. Neither side examined any witnesses. On behalf of respondents 1, 2 and 3, Exts.A1 to A10 were marked. Ext.B1 was marked by the respondents.

Award of the Tribunal:

4. The Tribunal, vide Award dated 16.09.2017 held that the appellant is liable to pay to respondents 1, 2 and 3 a total compensation of Rs.11,06,856/- with interest @ 7.5% per annum from the date of petition with proportionate cost. While the appellant challenged the sustainability of the said Award, respondents 1, 2 and 3 have filed the above cross objection seeking enhancement of compensation granted therein.

5. Heard Sri.Mathews Jacob, learned Senior Advocate instructed by Sri.P.Jacob Mathew appearing on behalf of the appellant – Insurance Company and Sri.P.J.Joe Paul, the learned counsel appearing on behalf of the cross objectioners (viz., respondents 1, 2 and 3 in the M.A.C.A).

Appellant's contentions in brief:

● Tribunal overlooked the contention of contributory negligence on the part of the deceased Gopalan. It ought to have fixed some contributory negligence on him.

● While the original claim was only Rs.9,00,000/-, Tribunal had awarded Rs.11,06,856/- with interest @ 7.5%. The compensation awarded is not just and reasonable.

● Tribunal erred in taking 30% future prospects to the notional income of the deceased. It ought to have been only 25% based on the decision in National Insurance Company Ltd.

v. Pranay Sethi [(2017) 16 SCC 680].

● Tribunal erred in granting Rs.25,000/- each under the heads of pain and suffering as well as towards funeral expenses.

This contravenes the dictum in Pranay Sethi (supra).

● Tribunal erred in awarding an amount of Rs.25,000/- under the head of pain and suffering as compensation under the said head can be granted only in the case of injury and not in cases of death (United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur and others [2020 SCC OnLine SC

410].

● Tribunal erred in awarding Rs.50,000/- for loss of es