MACA Nos.158/2020 and 3683/2022 (The New India Assurance Co. Ltd. vs RAHANAS @ SHAHANAS; MUHAMMED SHAMIL; FIDA FATHIMA; ABDULLA; SARA; SAMAD; AKTHAR & The Oriental Insurance Co. Ltd. vs BAVEESH)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` WEDNESDAY, THE 9[TH] DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 ``` ``` MACA NO. 158 OF 2020 ``` ``` AGAINST THE AWARD DATED 23.09.2019 IN OPMV 909/2017 OF MOTOR ``` ## **`ACCIDENTS CLAIMS TRIBUNAL, VATAKARA`** ## **`APPELLANT/3RD RESPONDENT IN OP(MV):`** ``` THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, KOZHIKODE (DT.), KERALA, REPRESENTED BY THE DULY COSTITUTED ATTORNEY, LEKHA VIJAYAN (ASSISTANT MANAGER), REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G. ROAD, KOCHI-682011. ``` ``` BY ADVS. M.JACOB MURICKAN DINESH MATHEW J MURIKAN ``` ## **`RESPONDENTS/PETITIONERS & RESPONDENTS 1 & 2 IN OP(M.V):`** - **`1 RAHANAS @ SHAHANAS, AGED ABOUT 35 YEARS, W/O. LATE ANWAR, CHOYIKANDI MEETHAL HOUSE, MAYYANNUR P.O., VILLIAPPALLY, VATAKARA TALUK, KOZHIKODE DISTRICT-673542.`** - **`2 MUHAMMED SHAMIL (MINOR), AGED ABOUT 14 YEARS, S/O. ANWAR, CHOYIKANDI MEETHAL HOUSE, MAYYANNUR P.O., VILLIAPPALLY, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673542, REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN, RAHANAS @ SHAHANAS, W/O. LATE ANWAR, CHOYIKANDI MEETHAL HOUSE, MAYYANNUR P.O., VILLIAPPALLY, VATAKARA TALUK, KOZHIKODE DISTRICT-673542.`** - **`3 FIDA FATHIMA (MINOR), AGED ABOUT 11 YEARS, D/O. ANWAR, CHOYIKANDI MEETHAL HOUSE, MAYYANNUR P.O., VILLIAPPALLY, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673542, REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN, RAHANAS @ SHAHANAS, W/O. LATE ANWAR, CHOYIKANDI MEETHAL HOUSE, MAYYANNUR P.O., VILLIAPPALLY, VATAKARA TALUK, KOZHIKODE DISTRICT-673542.`** - **`4 ABDULLA, AGED ABOUT 68 YEARS, S/O. AHAMMAD, BEMMINITHAZHA VAYALIL, PUTHUPPANAM P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673105.`** - **`5 SARA, AGED ABOUT 58 YEARS, W/O. ABDULLA, BEMMINITHAZHA VAYALIL, PUTHUPPANAM P.O., VATAKARA TALUK, KOZHIKODE DISTRICT-673105.`** - **`6 SAMAD, AGE NOT KNOWN, S/O. ATAKOYA, 1-381, CHERIYA NALAKATH HOUSE, IRINJAL P.O., KOTTAKKAL, KOYILANDY`** ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 2 ``` ``` TALUK, KOZHIKODE DISTRICT, PIN-670702. 7AKTHAR, AGED ABOUT 34 YEARS, S/O. AHAMMED, KRIPA HOUSE, IRINJAL P.O., KOTTAKKAL, KOYILANDY TALUK, KOZHIKODE DISTRICT-670702. ``` ## **`BY ADV ZUBAIR PULIKKOOL`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.08.2023, ALONG WITH MACA.3072/2022, 3683/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` WEDNESDAY, THE 9[TH] DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 ``` ``` MACA NO. 3683 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 01.07.2022 IN OPMV 485/2019 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA ``` ## **`APPELLANT/2ND RESPONDENT:`** ``` THE ORIENTAL INSURANCE CO. LTD., METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS AUTHORIZED OFFICER ``` ``` BY ADV VPK.PANICKER ``` ## **`RESPONDENT/PETITIONER:`** ``` BAVEESH, S/O DEVI, AGED 34 YEARS, KAVIL HOUSE, KUTTIADI, ADUKKATH, MARUTHONKARA, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN – 673508 ``` ``` BY ADV ZUBAIR PULIKKOOL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.08.2023, ALONG WITH MACA.158/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 4 ``` ## **`JUDGMENT`** ``` The common question of law came up for consideration is whether it is permissible for any aggrieved person, victim or injured person to come up with a claim petition after the expiry of a “reasonable time” and whether they will stand bound by any time schedule after the deletion of sub-section 3 of Section 166 of the Motor Vehicles Act, 1988 (for short, “the Act”). The issue was elaborately considered and discussed by a Constitution Bench of the Apex Court in Purohit and Company (M/s) v. Khatoonbee and Another [2017 (2) KHC 102(SC)]. By taking into consideration all the legal pronouncements on the point by the Apex Court till that time, it was ultimately found that the legal position settled by an earlier Bench of the Apex Court in New India Assurance Co.Ltd. v. Padma (2004 KHC 198= 2003 (7) SCC 713 = AIR 2003 SC 4394) governs the area, if the cause of action or the alleged incident happened subsequent to the deletion of sub- section 3 of Section 166 of the Act. All other decisions ``` ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 5 ``` ``` taken up and considered by the Apex Court is with respect to claim, which occurred prior to the deletion of sub- section 3 of Section 166 of Act. As such, the question of retrospective application of the repealing provision was considered in detail. In that score, the decision rendered inPadma’s case (supra) was also taken into consideration and distinguished as it is the one rendered by the Apex Court on the point regarding a cause of action, which had arisen subsequent to the deletion of sub-section 3 of Section 166 of the Act. What is ``` ``` considered and laid down by the Apex Court in that decision is by holding that there is no limitation for filing any claim petition after the deletion of sub- section 3 of Section 166 of the Act. But it was found that it should be within a reasonable time and test was also applied (without referring the word ‘test’) so as to find out whether it is within reasonable time or not, for which it is laid down that if the claim is “genuine, live and surviving” at the time, when the application was preferred, it can be presumed that it is within time. ``` ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 6 ``` ``` Paragraph 13 of the said judgment is extracted below for reference: ``` ``` 13. We are satisfied, that the submission advanced at the hands of the learned counselfortheappellantmerits acceptance. The judgments on which the High Court had relied, and on which the respondents have emphasised, in our considered view, are not an impediment, to the acceptance of the submission canvassed on behalf of the appellant. We say so, because in Dhannalal’s case (supra) the question of inordinate delay in approaching the Motor Accident Claims Tribunal, was not considered. In the second judgment in C.Padma’s case (supra), it was considered. And in the C.Padma’s case, the first conclusion drawn in paragraph 12 was “….if otherwise the claim is found genuine….” We are of the considered view, that a claim raised before the Motor Accident Claims Tribunal, can be considered to be genuine, so long as it is a live and surviving claim. We are satisfied in accepting the declared position of law, expressed in the judgments relied upon by the learned counsel for the appellant. It is not as if, it can be open to all and sundry, to approach a Motor Accident Claims Tribunal, to raise a claim for compensation, at any juncture, after the accident had taken place. The individual concerned, must approach the Tribunal within a reasonable time.” ``` ``` 2.In fact, the concept of delay or period of limitation wasactually taken away by the deletion of sub-section 3 of Section 166 of the Act. The subsequent ``` ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 7 ``` ``` amendment by Act 32 of 2019 is not applicable in the present case. Hence, the question of limitation, if any available and test of reasonability should be assessed in relation to the provision as it stood prior to the incorporation of sub-section(3) by the amendment of the year 2019. When there is no question of delay, there is no occasion for condoning the delay or getting it condoned. At the same time, as discussed earlier the claim should be within a reasonable time and that can be adjudicated by applying the test whether the claim remains “live and effective” as on the date of claim, after the deletion of sub-section (3) to Section 166 of the Act. Necessarily, the party will stand governed by the provision after its amendment, after the deletion of sub-section 3, wherein the court has to apply the test of “genuine, live and survive” which stands for capability of adjudication by “evidence” and its availability. Any kind of destruction/missing of material evidence by efflux of time, which would make it impossible for the Tribunal to adjudicate the claim with the required ``` ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 8 ``` ``` fairness would make the claim ineffective and cannot be brought under the broad spectrum of 'live and survive'. The very same legal position was also followed by another Bench of this Court in National Insurance Co. Ltd. v. Jojo T.G. [2019 KHC 682]by referring to the decision rendered by the Apex Court in Purohit's case (supra) by applying the principle of 'stale claim'. ``` ``` 3. In MACA No.158 of 2020, the delay comes to more or less nine years. The evidence tendered consists of FIR, Postmortem examination report and Family Membership certificate. ``` ``` 4. It was submitted by the learned counsel for the Insurance Company that this case cannot be considered as genuine and live as copy of final report was not submitted either by the petitioner or by any of the respondents. But, the production of FIR will reveal the registration of crime with the corresponding number, date of registration and offence alleged. Necessarily, the party is at liberty to obtain a certified copy of the final report submitted. The mere fact that copy of final ``` ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 9 ``` ``` report was not produced in evidence, does not by itself mean that the said document is not available for getting a certified copy. On the other hand, if it is established that the documents relating to the alleged accident including the final report and the evidence necessary for the determination became not traceable and not available due to efflux of time to the extent of making it impossible to determine the compensation with its required fairness, it would bring the matter within the mischief of inordinate and unreasonable delay and outside the sweep of “genuine, live and survive”. Necessarily, such belated application for compensation cannot be entertained as it is beyond the period of reasonability. ``` ``` 5. On coming to the quantum of compensation awarded in MACA No.158 of 2020, the only dispute is with respect to the amount granted by way of love and affection (consortium) to the wife. The notional income was correctly adopted by the Tribunal, but the consortium allowed along with compensation for loss of love and affection found to be not in accordance with the legal ``` ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 10 ``` ``` position settled. An amount of Rs.1,00,000/- was allowed by way of love and affection to the wife of the deceased, besides an amount of Rs.40,000/- on account of consortium. It is not at all permissible to grant amounts under both heads, which will have one and the same effect. As such, she is entitled to only Rs.40,000/- instead of Rs.1,40,000/-. No dispute is raised pertaining to other matters. As such, MACA No.158 of 2020 will stand allowed in part, by modifying the award of the Tribunal by deleting the amount of Rs.1,00,000/- (Rupees One Lakh only), which was granted on account of love and affection. ``` ``` 6.In M.A.C.A.No.3683 of 2022, the Tribunal has committed some serious mistakes. Firstly, what is sustained by the petitioner is the amputation of distal two phalanx of three fingers – ring finger, middle finger and little finger of right arm. But it was mistakenly taken as amputation of right palm. Further, the Tribunal ought not have accepted the disability certificate issued under the provisions of Right of Persons with ``` ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 11 ``` ``` Disabilities Act, 2016. The Tribunal ought not have accepted an enhanced disability on the ground that the petitioner is a driver by profession without any evidence to show his profession. No driving licence or any document worth the name was produced to show the profession of the victim. The disability as per McBride Scale would vary from 5% to 6% and hence, adoption of 20% of disability cannot be justified. The percentage of disability as per the disability certificate is only 11%. Hence, there is no justification for the Tribunal to enhance the same to 20%, that too, without any basis. The compensation for continuing or permanent disability by applying 11% would come to Rs.1,54,440/-. ``` ``` 7.The petitioner had undergone treatment only for 12 days and as such, the amount of Rs.25,000/- awarded on account of extra nourishment without taking into consideration the period of treatment and the injury alleged to have been sustained cannot be sustained. It is not clear on what basis such a huge amount was allowed on account of extra nourishment. Hence, an amount of ``` ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 12 ``` ``` Rs.4800/- (400 x 12) can be allowed by modifying the amount granted, which comes to Rs.25,000/-. There is no justification for the Tribunal for awarding an amount of Rs.4,800/- towards bystander's expenses as against Rs.1,800/- (12 x 150), which can be allowed under that head. Hence, the same will stand modified accordingly. Further, there is no justification for the Tribunal for allowing an amount of Rs.1,00,000/- towards pain and suffering simply because of the reason that the petitioner has sustained amputation of three fingers upto the level of distal phalanx. The amount granted is so exorbitant and unconscionable. At this juncture, the learned counsel for the insurance company made a concession that an amount of Rs.50,000/- can be granted under that head. Hence, the amount awarded under the head of pain and suffering is modified to Rs.50,000/-. It seems so strange enough and unconscionable that an amount of Rs.2,00,000/- was granted on account of loss of marriage prospects. There is no case of any disfiguration either to face or any visible part of the ``` ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 13 ``` ``` body except the amputation of three fingers upto the level of distal phalanx. Another amount of Rs.75,000/- was also granted for loss of amenities, that too, without any basis and against all the settled principles governing the area and as such, the amount will stand modified to Rs.50,000/- on account of loss of marriage prospects and loss of amenities jointly. The claim was preferred after the lapse of more than ten years and ten months, in which exorbitant amount was granted by the Tribunal, that too, overlooking all the settled principles. The amount that can be awarded under various heads is as follows. ``` |`Sl.`<br>`No`|`Head of Claim`|`Amount Awarded`| |---|---|---| |`1`|`Loss of earnings`|`39000`| |`2`|`Transport hospital`|`13000`| |`3`|`Damage to clothing and`<br>`article`|`1500`| |`4`|`Extra nourishment`|`4800`| |`5`|`Medical expenses`|`3000`| |`6`|`Bystander's expenses`|`1800`| ``` MACA Nos.158/2020 and 3683/2022 ``` ``` 14 ``` |||| |---|---|---| |`7`|`Pain and suffering`|`50000`| |`8`|`Compensation for`<br>`continuing or permanent`<br>`disability`|`1,54,440`<br>`(6500x12x18x11%)`| |`9`|`Loss of marriage`<br>`prospects & compensation`<br>`for loss of enjoyment`<br>`and amenities`|`50000`| ||**`Total`**|**`Rs.317540/-`**| ``` 8.The appellant/petitioner is not entitled to interest for the period of delay occasioned. Hence, the award passed by the Tribunal will stand modified by awarding an amount of Rs.3,17,540/- (Rupees Three Lakhs Seventeen Thousand Five Hundred and Forty only) with interest @ 9% per annum from the date of petition till the date of payment. ``` ``` Both the appeals will stand allowed in part accordingly. ``` ``` Sd/- P.SOMARAJAN JUDGE ``` ``` msp ```