Liberty General Insurance Co. Ltd. v. Asokan K.N. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943** **MACA NO. 2446 OF 2021** **AGAINST THE AWARD DATED 16.04.2021 IN OP(MV) NO.918/2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA, ERNAKULAM** ## **APPELLANT/3RD RESPONDENT:** **LIBERTY GENERAL INSURANCE CO. LTD., DOOR NO.39/4166-A, 2ND FLOOR, SHEMA BUILDING, M.G.ROAD, RAVIPURAM, REPRESENTED BY ITS BRANCH MANAGER, PIN -682 016, NOW REPRESENTED BY ITS LEGAL MANAGER, ANMOL PALANI, NO.88, GN CHETTY ROAD, CHENNAI - 600 017. BY ADVS.SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SRI.ALEXY AUGUSTINE SMT.LATHA SUSAN CHERIAN SRI.GEORGE A.CHERIAN** ## **RESPONDENTS/ PETITIONERS:** **1 ASOKAN K.N., AGED 54 YEARS, KIZHAKKEKUDY HOUSE, VADASSERY KARA, KOTTAPPADY P.O., KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK, ERNAULAM DISTRICT, PIN - 686 692. 2 KUNJUMOL, AGED 50 YEARS, W/O.ASOKAN K.N., KIZHAKKEKUDY HOUSE, VADASSERY KARA, KOTTAPPADY P.O., KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN - 686 692.** M.A.C.A.No.2446/2021 -:2:- **3 ATHIRA ASOKAN, AGED 22 YEARS, D/O.ASOKAN K.N., KIZHAKKEKUDY HOUSE, VADASSERY KARA, KOTTAPPADY P.O., KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN - 686 692.** **4 AWATHY ASOKAN, AGED 19 YEARS, D/O.ASOKAN K.N., KIZHAKKEKUDY HOUSE, VADASSERY KARA, KOTTAPPADY P.O., KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN - 686 692.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2446/2021 -:3:- _Dated this the 10[th] day of September,2021_ ## **J U D G M E N T** The appellant - insurer - was the third respondent in O.P (MV)No.918/2018 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. The respondents in the appeal were the petitioners before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 _,(in short 'Act')_ claiming compensation on account of the death of 'Akhil Asokan'(deceased), the son of the petitioners 1 and 2 and the brother of respondents 3 and 4. It was the case of the petitioners that, on 22.07.2018, while the deceased was riding as a pillion rider on a motorcycle bearing registration No. KL-44/B-7277(motorcycle) through the Chirappady M.A.C.A.No.2446/2021 -:4:- -Parachalippay road, the rider of the motorcycle – the first respondent before the Tribunal – lost control of the motorcycle and the deceased fell on the road and sustained serious injuries. He was treated at the M.B.M.M. Hospital, Kothamangalam and thereafter, at the Rajagiri Hospital, Aluva. The deceased lost his life on 23.07.2018. The accident occurred solely due to the negligence of the first respondent. The second respondent was the owner and the third respondent was the insurer of the motorcycle. The deceased was 21 years of age and was a welder cum tress worker by profession. He was earning a monthly income of Rs.15,000/-. The petitioners were the dependants of the deceased. Hence, they claimed a compensation of Rs.47,32,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set _ex parte_ . 4. The third respondent filed a written M.A.C.A.No.2446/2021 -:5:- statement admitting that the motorcycle had a valid insurance coverage. However, the third respondent denied the fact that there was negligence on the part of the first respondent. It was also contended that the compensation claimed by the petitioners was highly excessive. 5. The petitioners examined a witness as PW1 and marked Exts.A1 to A12 in evidence. The third respondent produced the copy of the insurance policy and marked it as Ext.B1 in evidence. 6. The Tribunal allowed the claim petition in part, by directing the third respondent/insurer to pay an amount of Rs.25,38,035/- to the petitioners in the ratio of 40:40:10:10. 7. Aggrieved by the said award, the appellant/third respondent/insurer is in appeal. 8. Heard; Sri. George Cheriyan, the learned Senior Counsel appearing for the appellant/third M.A.C.A.No.2446/2021 -:6:- respondent. 9. The principle grounds of challenge in the Memorandum of appeal are: - _(i) that the notional income of the deceased fixed by the Tribunal is on the higher side;_ _and_ - _(ii) that the medical expenses awarded by the Tribunal is excessive._ ## **Ground No.(i)** 10. The petitioners had averred in the claim petition that the deceased was a welder cum tress worker and was earning a monthly income of Rs.15,000/-. The petitioners examined PW1 to substantiate their contentions. The Tribunal, accepted the uncontroverted oral testimony of PW1 and fixed the monthly income of the deceased at Rs.15,000/-. 11. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ M.A.C.A.No.2446/2021 -:7:- [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 12. In _**Pushkar Mehra v. Brij Mohan Kushwala and others**_ [(2015)12 SCC 688], the Hon'ble Supreme Court has fixed the notional income of a skilled labourer in the year 2010, at Rs.7,020/- per month. 13. Following the above benchmark and taking into account that the deceased was a skilled labourer, who was only aged 21 years at the time of the accident and the accident which happened in the year 2018, I am of the considered opinion that the income of the deceased fixed at Rs.15,000/- per month is reasonable and justifiable. I do not find any reason to disagree or differ with the finding of the Tribunal. ## **Ground No.(ii)** 14. The next ground of challenge is that the M.A.C.A.No.2446/2021 -:8:- medical expenses that was directed to be reimbursed was on the higher side. 15. The petitioners had produced Exts.A11 and A12 inpatient bill summary and medical bills to prove the amount that was expended on the deceased in order to save his life. It is taking into account Exts.A11 and A12, that the Tribunal fixed the medical expenses at Rs.1,30,035/-. 16. The petitioners have proved the actual expenses that was incurred by them in order to save the life of the deceased. I do not find any error or illegality in the amount awarded towards medical expenses. 17. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 18. On a overall appreciation of the pleadings, materials on record and the elaborate findings M.A.C.A.No.2446/2021 -:9:- rendered by the Tribunal, I find that the Tribunal has arrived at the conclusion after a threadbare analysis of the facts and materials on record. I do not find any error in the compensation awarded at by the Tribunal. 19. The Honourable Supreme Court in _**New Indian Assurance Company Ltd. v. Kiran Singh & Others**_ [2004 AIR SCW 4212] has depreciated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. 20. It is to be borne in mind that the accident occurred as early as on 22.07.2018. It is more than three years since the petitioners have been knocking at the doors of the courts seeking compensation. It is trite, that the Tribunals are permitted to do some guess work and also exercise its discretion in awarding reasonable and just compensation, for which there cannot be any straight jacket formula based on M.A.C.A.No.2446/2021 -:10:- arithmetic exactitude. I find that the Tribunal has judicially exercised its powers based on the provision of the Act, and the authoritative precedents of the Honourable Supreme Court while arriving at the conclusion in the impugned award. I do not find any justifiable grounds in the memorandum of appeal warranting admission of the appeal, which would only be a wastage of judicial time and harassment to the respondents. Following the ratio in _**Kiran Singh**_ (supra), I hold that the appeal is devoid of any merits and does not warrant admission. Resultantly, I dismiss the appeal at the threshold. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge