Jitto V. Jeneesh v. Yoonus and The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943** **MACA NO. 3769 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OPMV 752/2017 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANT/S:** JITTO V. JENEESH AGED 21 YEARS S/O.JENEESH, VALUCHIRA HOUSE, KOOVAKANDAM BHAGOM, VELLIAMATTOM VILLAGE, POOMALA KARA NOW RESIDING AT KUZHIPPARAMBIL HOUSE, THAVALAKUZHI BHAGOM, KARIMKUNNAM KARA, KARIMKUNNAM VILLAGE, IDUKKI DIST. - 685 586. BY ADVS. A.R.NIMOD M.A.AUGUSTINE ## **RESPONDENT/S:** 1 YOONUS AGED 46 YEARS S/O.HASSAN, MATTAKKATTU HOUSE, NADACKAL P.O., ERATTUPETTA VILLAGE - 686 121. 2 THE NEW INDIA ASSURANCE CO.LTD. 2ND FLOOR, POLACHIRACKAL CHAMBERS, OPPOSITE COLLECTORATE, KOTTAYAM, KUMILY RD., KOTTAYAM, KERALA - 686 002 REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM. ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 04.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.3769 of 2021 ## **C.S.DIAS, J.** ## **====================== MACA No.3769 of 2021** ## **====================== Dated this the 4[th] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.752/2017 on the file of the Motor Accident Claims Tribunal, Thodupuzha. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 3.8.2017. It was his case that, on the above said date, while he was riding pillion on a motor cycle through the Thekkumbhagam kara at Keerikode, the motor cycle was hit by a car bearing registration No.KL-35A/2868, which was owned and driven by the first respondent and insured with the second respondent. Hence, the appellant claimed a compensation of 3 MACA No.3769 of 2021 Rs.30,00,000/- from the respondents. 3. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the second respondent an amount of Rs.17,41,755/- with interest and proportionate costs. Nevertheless, the Tribunal directed only an amount of Rs.10,00,000/- to be released to the appellant and the remaining compensation to be deposited in fixed deposit in the name of the appellant under the Motor Accident Claims Annuity Deposit Scheme ( in short 'MACADS') for a period of twenty years in a Nationalised Bank. 4. Aggrieved by the direction in the impugned award that the balance compensation amount of Rs.7,41,755/- with interest and cost (in short 'balance amount') has to be deposited under the MACADS for twenty years, the petitioner is in appeal. 5. Heard; Sri.A.R Nimod, the learned counsel 4 MACA No.3769 of 2021 appearing for the appellant/petitioner and Sri.Lal K. Joseph, the learned counsel appearing for the second respondent/insurer. 6. The sole point that arises for consideration in the appeal is whether the direction in the impugned award, that the balance amount be deposited for twenty years in the MACADS is justifiable or not. 7. The learned counsel appearing for the appellant drew the attention of this Court to the decision of the Hon'ble Supreme Court in **A.V Padma and others vs. R.Venugopal and others [2012 ACJ 698]** wherein the Hon'ble Supreme Court in paragraphs 4 and 5 held as follows: 4. In the case of Susamma Thomas, 1994 ACJ 1(SC), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptibility to exploitation". Even as per the guidelines issued by this Court, long-term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lump sum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal 5 MACA No.3769 of 2021 shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi-literate claimants, the Tribunal should ordinarily invest the amount of compensation in long-term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long-term fixed deposit. The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos. (i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit. 5. Thus, sufficient discretion has been given to the Claims Tribunal not to insist on investment of the compensation amount in long-term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long-term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semiliterate and literate persons. **It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The** 6 MACA No.3769 of 2021 **guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money. The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases where there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long- term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long-term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.** The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long-term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice. (emphasis given) 8. In the instant case, it is seen that the appellant has incurred an amount of Rs.7,31,950/- for his medical treatment, as per Ext A12 medical bills. The appellant is 7 MACA No.3769 of 2021 pursuing his graduation and is now aged 21 years. Therefore, he is a literate person. Even though the Tribunal has awarded an amount of Rs.17,41,755/- with interest and cost, the Tribunal has only ordered an amount of Rs.10,00,000/- to be released to the appellant. It is the balance amount that is directed to be deposited for a period of twenty years under the MACADS, which according to me is onerous, unnecessary and unwarranted, particularly in view of the ratio decidendi in **A.V Padma** (supra). 9. Taking into account the fact that the appellant is aged 21 years, that he is a literate person and has incurred nearly Rs.8,00,000/- for his medical expenses, I am of the firm view that the impugned direction in the award, that the balance amount has to be deposited for a period of twenty years, has to be modified. Therefore, following the ratio in **A.V Padma** (supra), I direct that 50% of the balance amount with proportionate interest 8 MACA No.3769 of 2021 and cost be forthwith released to the appellant, in accordance with law and the balance 50% be deposited in a Scheduled Bank in the name of the appellant for a further period of 24 months from today. However, the interest accruing on the balance 50% shall be directed to be credited to the appellant's savings bank account on quarterly basis. In the facts and circumstances of the case, the parties shall bear their respective costs. Sd/- sks/4.1.2022 **C.S.DIAS, JUDGE**