Bajaj Allianz General Insurance Co. Ltd. v Abdulla N.M

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 31[ST] DAY OF JANUARY 2023 / 11TH MAGHA, 1944 MACA NO. 2979 OF 2022 ``` ``` AGAINST THE JUDGMENT IN OP(MV) 905/2019 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD APPELLANT/2ND RESPONDENT: ``` ``` BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD GE PLAZA, AIRPORT ROAD, YERWADE, PUNE-411006, REPRESENTED BY ITS SENIOR LEGAL EXECUTIVE, 3RD FLOOR, COASTAL CHAMBERS, RAVIPURAM, KOCHI., PIN - 682026 BY ADVS. GEORGE A.CHERIAN LATHA SUSAN CHERIAN GEORGE CHERIAN (SR.) ``` ## **`RESPONDENT/PETITIONER:`** ``` ABDULLA.N.M AGED 56 YEARS S/O MUHAMMED HAJI, R/AT KOLIADUKKAM HOUSE, PERUMBALA,P.O. , KASARAGOD,, PIN - 671317 BY ADV A.ARUNKUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA.No.2979 /2022** ..2.. ## **JUDGMENT** This appeal has been impelled by Bajaj Allianz General Insurance Co.Ltd, which is, admittedly, the insurer of the offending vehicle which caused the accident involving the respondent. 2. The respondent filed OP(MV)No.905/2019 before the Motor Accidents Claims Tribunal, Kasargod (‘Tribunal’ for short), claiming compensation for the injuries in the accident which occurred on 14.08.2019, seeking a total amount of Rs.9,41,000/-, restricting it to Rs.6,00,000/-; and the Tribunal awarded an amount of Rs.7,57,101/-. 3. The Award of the Tribunal has been assailed by the appellant solely on the ground that the compensation for “Permanent Disability” - awarded at Rs.4,91,832/-, is much higher than what is deserving. 4. I have heard Smt.K.S.Santhi – learned counsel appearing for the appellant and Sri.Arun Kumar – learned counsel appearing for the respondent. 5. Smt.K.S.Santhi, vehemently argued that, even going by the evidence on record, the only document to prove **MACA.No.2979 /2022** **==> picture [20 x 8] intentionally omitted <==** “Permanent Locomotor Disability” of the respondent is Ext.X1, which records 69% of such. She argued that though RW1, namely the Doctor who issued Ext.X1, was examined, he has deposed unequivocally that he relied upon the guidelines of the year 2016, rather than the guidelines of the year 2018. She asserted that, since the accident took place in 2019, it was the latter guidelines which should have been applied; and therefore, that the disabiity found by RW1 - Doctor cannot be construed to be accurate. She thus prayed that her client either be granted liberty to produce the guidelines of the year 2018 before this Court as an additional evidence; or that the matter be remitted to the Tribunal for a fresh consideration of this issue. 6. Sri.Arun Kumar – learned counsel appearing for the respondent, on the other hand, submitted that, as has been recorded by the Tribunal, though RW1 was examined in detail, the appellant never questioned his credibility, or the yardsticks adopted by him in fixing the “Permanent Locomotor Disability” of his client. He argued that, apart from a passing assertion that there are guidelines of the year 2018, same was not produced; nor is even a whisper of a pleading on record, or suggestion made at the Bar, that if such guidelines are **MACA.No.2979 /2022** ..4.. accepted, the Permanent Locomotor Disability would be reduced from what has been recorded in Ext.X1. He submitted that, therefore, the afore arguments of the appellant are purely speculative and conjectural, to say the least; and therefore, that the Tribunal was completely without error in having accepted the said document and to have adopted the whole body disability at 41.4.%. 7. I have examined the pleadings on record, as also the evidence marked by the Tribunal - copies of which have been handed over across the Bar by the learned counsel of the parties, with consent that this appeal can be disposed of on such basis. 8. As I have already said above and as is admitted by Smt.K.S.Santhi, the only point of controversy involved in this appeal is whether RW1 ought to have adopted the guidelines of the year 2016, or the alleged guidelines of the year 2018, for assessing Permanent Locomotor Disability of the respondent. 9. Pertinently, it is admitted without reservation that the alleged guidelines of the year 2018 had neither been produced before the Tribunal, nor attempted to be marked in evidence; further compounded by the fact that there was no **MACA.No.2979 /2022** ..5.. whisper in the pleading, or a suggestion even during crossexamination of RW1, that had it been adopted, the Permanent Locomotor Disability as assesed by him would have been reduced from the figure shown in Ext.X1. When one examines Ext.X1, the doctor who issued it, namely RW1, has mentioned the reasons which guided him to find the permenant disability of the respondent as done by him, recording therein that the range of movement of the injured limb of respondent is restricted to 20.40% out of 90% and that his stability compound is 55%, with an additional weightage of 6%. He has also recorded in the said document that, the right knee joint of the respondent causes pain and therefore, that a 6% permanent disabilty, with an additional weightage, was justified. 10. Even though none of the afore entries in Ext.X1 are challenged by the appellant, they take the stand that RW1 ought to have adopted the alleged guidelines of the year 2018, and not that of the year 2016, as done by him. 11. Obviously, the contentions of the appellant can only be taken to be speculative, as rightly argued by Sri.Arun Kumar, since when they try to build a case that the guidelines of the year 2018 alone are applicable, then certainly, they **MACA.No.2979 /2022** ..6.. ought to have proved it through cojent and reliable evidence. 12. I notice from the impugned Award that a sum of Rs.7,57,101/- has been ordered, but that the appellant has deposited only Rs.25,000/-, which is the mandatory one; without having complied with the orders of this Court dated 25.10.2022, to deposit a sum comprising total 50% of the Award. Indubitably, the appellant cannot be granted any latitude, unless they comply with the directions of this Court, which they have not done as of now. 13. That being said, solely to ensure that the respondent does not have an undeserved compensation, I am of the view that the matter must be remitted to the Tribunal, to enable the appellant to lead additional evidence, if any, to establish that the guidelines of the year 2018, if there are any such, ought to have been adopted in Ext.X1. However, this can be allowed only if they remit atleast 80% of the Award, so that the respondent can then receive it, on the satisfation of the Tribunal and then prosecute the OP(MV) to the limited extent as I presently propose. Resultantly, I allow this apeal in part and remit the matter to the MACT, Kasargod, to the limited extent of deciding whether any other guidelines, than that of the year 2016, **MACA.No.2979 /2022** ..7.. ought to have been adopted in Ext.X1 by RW1; for which purpose, the appellant will also be given opportunity to adduce additional evidence and mark additional documents. In all other respects, the Award woud stand unaltered. However, the afore liberty will be available to the appellant only if they deposit 80% of the Award amount before the Tribunal, within a period of one month from today, with liberty being fully reserved to the respondent to receive the same, as per the satisfaction of the Tribunal. I record that this has been acceded to by the respondent also. ## **DEVAN RAMACHANDRAN, JUDGE** ## ACR ## **SPOKEN TO ON 02.02.2023** I had delivered judgment in this matter on 31.01.2023. However, a request was made by the learned counsel for the respondent – Sri.Arun Kumar that the Tribunal be directed also to consider the question of the correctness of the income reckoned in favour of his client. He relied upon ## _**Ramachandrappa v. Manager, Royal Sundaram Alliance**_ **MACA.No.2979 /2022** **==> picture [20 x 8] intentionally omitted <==** _**Insurance Company Ltd. [(2011) 13 SCC 236]**_ to argue that his client was entitled to be awarded notional income as Rs.12,000/-, the accident being of the year 2019; but that the Tribunal has taken only Rs.9,000/-. 2. Smt.K.S.Santhi – learned counsel for the appellant submitted that she does not stand in the way of this issue also being remanded to the Tribunal; but prayed that her client be allowed full liberty to defend it appositely. Resultantly, in addition to the directions in the judgment dated 31.01.2023, I order that when the Tribunal reconsiders the matter the aspect of quantum of notional income fixed in favour of the respondent herein/claimant will also be considered and answered. ## `Sd/-` **`DEVAN RAMACHANDRAN JUDGE`** ``` MC ```