Reliance General Insurance Company Limited v. Asha, Gowrikutty, Vinod, Mahesh

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** # **FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943** **MACA NO. 1884 OF 2021** # **AGAINST THE AWARD IN OP(MV)NO. 288/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA, ALAPPUZHA** **APPELLANT/3RD RESPONDENT:** **RELIANCE GENERAL INSURANCE COMPANY LIMITED BRANCH OFFICE, KABEER PLAZA, NEAR BOAR JETTY, ALAPPUZHA DISTRICT REP. BY ITS LEGAL CLAIMS MANAGER, RELIANCE GENERAL INSURANCE CO.LTD., ERNAKULAM** **BY ADVS. R.AJITH KUMAR (128/84) TAPAS VARMA A.** ## **RESPONDENT/S:** 1 **ASHA, AGED 32 YEARS, W/O.DECEASED KALESH V.C., VETTACKATTUVELI HOUSE, CHERTHALA P.O., CHERTHALA MUNICIPAL WARD NO.32, ALAPPUZHA 688 524** 2 **GOWRIKUTTY, AGED 38 YEARS, W/O.LATE K.C.CHANDRAN, VETTACKATTUVELI HOUSE, CHERTHALA P.O., CHERTHALA MUNICIPAL WARD NO.32, ALAPPUZHA 688 524** 3 **VINOD, AGED 51 YEARS, S/O.LATE K.C.CHANDRAN, VETTACKATTUVELI HOUSE, CHERTHALA P.O., CHERTHALA MUNICIPAL WARD NO.32, ALAPPUZHA 688 524** MACA.No.1884 of 2021 _2_ 4 **MAHESH, AGED 42 YEARS, W/O.LATE K.C.CHANDRAN, VETTACKATTUVELI HOUSE, CHERTHALA P.O., CHERTHALA MUNICIPAL WARD NO.32, ALAPPUZHA 688 524** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1884 of 2021 _3_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1884 of 2021 - - - - - - - - - - -- - - - - - - - - - - - - Dated this the 23[rd] day of July, 2021 ## **JUDGMENT** The appellant – insurance company was the 3rd respondent in OP(MV) No.288 of 2015 on the file of the Motor Accidents Claims Tribunal, Alapuzha. The respondents in the appeal were the petitioners 1 to 4 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, claiming compensation on account of the death of Kalesh (deceased) on 30.12.2014. The petitioners had averred in the claim petition that on 30.12.2014 while the deceased was travelling on his motorcycle MACA.No.1884 of 2021 _4_ bearing registration No.KL 7/AR 4028 along Alappuzha – Cherthala public road, when the deceased reached 11[th] mile, a mini Bus bearing registration No.KL 32/1005 (offending vehicle) driven by the 2[nd] respondent hit the motorcycle of the deceased. The deceased sustained serious injuries and was taken to the KVM Hospital, Cherthala, and was thereafter shifted to the Lakshore Hospital, Kochi, for better treatment. However, on the following day the deceased succumbed to the injuries. The accident occurred solely on account of the negligence of the 2[nd] respondent. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the petitioners claimed compensation from the respondents, which they quantified at Rs.40,00,000/- MACA.No.1884 of 2021 _5_ 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent filed a written statement contending that the accident occurred on account of the negligence of the deceased. The 3[rd] respondent also disputed the income, age and occupation of the deceased and contended that compensation claimed was exorbitant. 5. The petitioners produced and marked Exts.A1 to A18 in evidence. The 3[rd] respondent produced and marked Ext.B1 - copy of the wound certificate - in evidence. 6. The Tribunal, by the impugned award, allowed the claim petition, in part, by directing the 3[rd] respondent to pay the petitioners an amount of Rs.21,74,200/- with interest and proportionate costs. 7. Aggrieved by the impugned award, the 3[rd] MACA.No.1884 of 2021 _6_ respondent - insurance company is in appeal. 8. Heard Sri.R.Ajith Kumar Varma, the learned Counsel appearing for the appellant/ 3[rd] respondnet. 9. The principal ground of challenge in the memorandum of appeal is that the notional income of the deceased fixed by the Tribunal at Rs.11,000/- per month is on the higher side. 10. Ext.A7 charge-sheet filed by the police after investigation proves that the accident occurred on account of the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the offending vehicle. 11. The petitioners had contended that the deceased was a Driver and sand blaster by profession. They produced Ext.A9 occupation certificate to prove that the deceased was a sand MACA.No.1884 of 2021 _7_ blaster. 12. The Tribunal following the ratio of this Court in **Soman v. Jinesh James and others** [ILR 2020(3) Kerala 1003], wherein, this Court has fixed the notional income of a Coolie Worker in the year 2010 at Rs.7,500/-, fixed the notional income of the deceased at Rs.11,000/- per month. 13. It is the above fixation of the notional income that the appellant is aggrieved of. 14. The Hon'ble Supreme Court has in a catena of precedents fixed the notional income of persons carrying on different avocations. In **Pushkar Mehra v. Brij Mohan Kushwaha and others** [2015(12) SCC 688] the Hon'ble Supreme Court has fixed the notional income of a skilled labourer/technical supervisor in the year 2010 at Rs.7,020/- per month. 15. Taking into account the fact that the MACA.No.1884 of 2021 _8_ deceased was a sand blaster by profession as proved by Ext.A9 and considering the fact that the Tribunal fixed only an amount of Rs.11,000/- per month as the notional income, that comes to Rs.440/- per day, if the deceased had worked for 25 days, I am of the definite opinion that the notional income fixed by the Tribunal is reasonable and just and can never be said to be on the higher side particularly, when the respondents have not let in any contra evidence, other than the bare assertions in the written statement refuting the income of the deceased. It is trite that mere pleading is not proof. Certainly a skilled worker would have earned Rs.450/- per day in the year 2014 in Kerala State. 16. With respect to the other heads of compensation, I find that the Tribunal has followed the parameters laid down by the Hon'ble Supreme MACA.No.1884 of 2021 _9_ Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] 17. On a re-appreciation of the impugned award and the materials on record, I find that the Tribunal has in a thread bare manner analysed the pleadings and materials on record and arrived at the compensation figure. It is settled law that the Tribunals are permitted to do some guess work and also exercise its discretion to fix reasonable and just compensation, for which there cannot be any straight jacket formula based on the mathematical exactitude. I find that the Tribunal has judicially exercised its powers under the provisions of the Motor Vehicles Act, 1988 and the authoritative precedents of the Hon'ble Supreme Court to arrive at the conclusion in the impugned award. 18. The Hon'ble Supreme Court in **New India** MACA.No.1884 of 2021 _10_ **Assurance Company Ltd. v. Kiran Singh and others** [2004 AIR SC 4212] has deprecated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. It is also observed that if such instances are brought to the notice of the court, the court would be obliged to dismiss such appeals with heavy costs apart from the deprecating such practice. 19. In the instant case, after evaluating the impugned award and the materials on record and considering the law laid down in the afore-cited decisions, I am of the definite opinion that there is absolutely no ground made out in the memorandum of appeal warranting admission of the appeal, which would only be a wastage of judicial time and an harassment to the respondents 1 to 4. MACA.No.1884 of 2021 _11_ Following the ratio in **Kiran Singh** (supra), I hold that the appeal is devoid of any merits and does not warrant admission. Therefore, I dismiss the appeal at threshold. **Sd/- C.S.DIAS,JUDGE** **dlk 23.07.2021**