Ramakrishnan, Santha and Dhanya v. Priyesh K K and Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938** ## **MACA.No. 2854 of 2016 ()** **-------------------------** ## **AGAINST THE AWARD IN OPMV 2020/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 20-06-2016** ## **APPELLANT(S)/PETITIONERS:** **----------------------** ## **1. RAMAKRISHNAN** **S/O.LATE KUTTAPPAN, PARLIYIL HOUSE, P O PARASSERY, VIA , KONGAD II, PALAKKAD DISTRICT.** ## **2. SANTHA** **W/O.RAMAKRISHNAN -DO-** ## **3. DHANYA** **D/O.RAMAKRISHNAN-DO-** ## **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. PRIYESH K K** **S/O.KESAVAN, 5/295, ASARI HOUSE, KOCHANNUR P O, VADAKKEKAD, THRISSUR, PIN-679562.** ## **2. THE ORIENTAL INSURANCE COMPANY LIMITED.** ## **GURUVAYOOR ROAD, KUNNAMKULAM-680503.** **R2 BY ADV. SRI.VPK.PANICKER R BY SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2854 of 2016** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of November, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The legal heirs of a victim of a motor vehicle accident viz., one deceased Santhosh who are dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Thrissur in O.P.(M.V.) No.2020/2007 filed the above appeal seeking its enhancement. He was a mahout and he met with an accident on 24.1.2007 near Puzhakkal. He was a pillion rider in a motorcycle bearing registration No.KL-8/Y-4620. It collied with another motorcycle bearing registration No.KL-46/4518 and Sri. Santhosh who sustained serious injuries, later succumbed to them. Obviously, appreciating the evidence on record consisting only documentary evidence viz. Exts.A1 to A14 on the side of the appellants and Ext.B1 on the side of the respondents, the Tribunal granted a total compensation of Rs.8,90,000/- with interest at the rate of 9% per annum from the date of petition till realisation. M.A.C.A.No.2854 of 2016 2 2. We have heard Sri. P.V. Chandramohan, the learned counsel for the appellants and also Sri.V.P.K. Panicker, the learned counsel appearing for the second respondent. Since the liability to indemnify the insured owner, the first respondent is not in dispute, we do not think it necessary to issue notice to the first respondent and therefore, we dispense with issuance of notice to the first respondent. As the sole question to be decided in this appeal is regarding the entitlement of the appellants to get enhanced compensation, we are of the view that the appeal can be disposed of at the admission stage itself and hence, we are proceeding with the consideration. 3. The main grievance of the appellants is that though the accident occurred on 24.1.2007 and Santhosh died only on 8.2.2007 the Tribunal had not granted any amount as against a claim of Rs.1,25,000/- towards medical and miscellaneous expenses. The learned counsel for the appellants further submitted that the Tribunal also fixed the monthly income of the deceased so meagrely at Rs.4,500/ignoring the relevant factors. It is also submitted that the M.A.C.A.No.2854 of 2016 3 amount of compensation granted under the head pain and suffering is too low taking note of the excruciate pain endured by the deceased for about 16 days. The further contention of the appellants is that though the deceased Santhosh remained as an inpatient for 16 days the Tribunal had not granted any amount towards bystander's expenses as also extra nourishment. 4. The learned counsel appearing for the second respondent submitted that the Tribunal cannot be found fault with in not granting any amount towards medical expenses as the appellants had not produced the original medical bills and thus, failed to establish that he had incurred such expenses. At this juncture the learned counsel for the appellants submitted that the specific case of the appellants is that though they had produced bills before another insurance company only an amount of Rs.70,485/- was reimbursed and then, on being requested for return the original of the bills covering the balance amount they were intimated that the bills were missing. It is further submitted by the learned counsel that in such M.A.C.A.No.2854 of 2016 4 circumstances the appellants were constrained to file an application before the Tribunal to issue a direction to the said insurance company to produce the bills submitted before it by the appellants. Pursuant to an order passed by the Tribunal directing the insurance company to produce the bills an affidavit was filed by the insurance company to the effect that the bills produced by the appellants were not traceable. In fact, such an affidavit was filed by the manager of the said insurance company viz United India Insurance Company, Thrissur branch. According to the learned counsel for the appellants in such circumstances the Tribunal should have accepted and acted upon the affidavit though the original bills were missing and allowed reimbursement of the medical expenses as claimed by the appellants. 5. From the aforesaid contentions it is evident that the original bills were not at all produced before the Tribunal. That apart, it is evident that the very case of the appellants is that such bills were produced before the Thrissur branch of United India Insurance Company. M.A.C.A.No.2854 of 2016 5 However, the appellants did not obtain the full amount covered by such bills. Evidently, on the application of the appellants the Tribunal had issued a direction to the said insurance company to produce the originals of such bills and the affidavit filed by them before the Tribunal would reveal that such bills were not traceable. When it is evident that certain amount was reimbursed to the appellants and the bills allegedly produced before the said insurance company were not traceable, we are of the considered view that the Tribunal cannot be said to have committed an error in not accepting and acting upon the duplicate bills and the affidavit and not granting any amount towards reimbursement of the medical expenses. It is to be noted that in the circumstances expatiated above it cannot be said that the appellants had not obtained reimbursement of medical expenses in fact, they obtained certain amount which is evident from the very pleadings of the appellants. In such circumstances to order reimbursement of the medical expenses as claimed by the appellants they ought to have produced the original bills covering the balance M.A.C.A.No.2854 of 2016 6 amount remaining to be reimbursed so as to enable the Tribunal to scrutinise them to decide on their admissibility. The contention of the appellants that the Tribunal ought to have accepted and acted upon duplicate bills and the affidavit of the Manager of United India Insurance Company cannot be countenanced. In short, in the said circumstances, we do not find any reason to hold that the Tribunal had committed an irregularity or illegality in that regard which warrants an appellate interference. 6. As regards the fixation of the monthly income it is to be noted that the Tribunal fixed the monthly income as Rs.4,500/-. Paragraph 11 of the impugned judgment itself would reveal that in the claim petition the appellants averred that the deceased was a mahout and he was earning Rs.4,500/-. Taking note of the fact that the accident occurred in the year 2007 the Tribunal accepted the said version of the appellants and fixed the monthly income of the deceased as Rs.4,500/-. In such circumstances the appellants cannot legally have any grievance with respect to the fixation of the monthly income of the deceased and what M.A.C.A.No.2854 of 2016 7 was fixed by the Tribunal is nothing but the amount claimed as monthly income of the deceased by the appellants themselves. Over and above the said amount the Tribunal added 50% of the income following the decision of the Hon'ble Apex Court in **Rajesh v. Rajbir Singh** [ **2013 (3) KLT 89 (SC)]** reckoning the future prospects. There is no case for the appellants that the multiplier was wrongly applied by the Tribunal and in fact it was rightly identified with reference to the age of the deceased. Admittedly the deceased was a bachelor. In such circumstances 50% of the income was deducted by the Tribunal towards personal expenses of the deceased and it cannot be said to be illegal in the light of the decision of the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** . Going by the said decision in such circumstances 50% of the income has to be deducted towards personal expenses of the deceased which he would have incurred had he been alive. After a careful consideration of the schedule of compensation we are of the view that the appellants are entitled to get enhanced compensation under the head pain M.A.C.A.No.2854 of 2016 8 and suffering. As noticed hereinbefore though the accident occurred on 24.1.2007 the deceased Santhosh succumbed to the injuries only on 8.2.2007 i.e after about 16 days and the appellants claimed only an amount of Rs.30,000/towards compensation for pain and suffering and it cannot be said to be exorbitant. In fact, it is only a reasonable claim. The Tribunal granted only an amount of Rs.20,000/-. In such circumstances, we are inclined to grant Rs.10,000/more under that head. Though the deceased had been an inpatient for a period of 16 days the Tribunal had not granted any amount towards 'extra nourishment' and also bystander's expenses. The accident occurred in the year 2007. In such circumstances we are of the view that bystander's expenses at the rate of Rs.200/- per day and extra nourishment at the rate of Rs.100/- per day can be granted. Accordingly Rs.3,200/- is granted towards bystander's expenses and Rs.1,600/- is granted towards extra nourishment. In view of the assessment and reassessment made as above the appellants are entitled to get an amount of Rs.14,800/- (Rupees fourteen thousand M.A.C.A.No.2854 of 2016 9 eight hundred only). The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The second respondent insurer is directed to deposit the said amount along with interest within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/