Reliance General Insurance Company Limited v Rahul S/o Ravi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 16[TH] DAY OF JULY 2021 / 25TH ASHADHA, 1943 MACA NO. 1624 OF 2018** **AGAINST THE AWARD IN OP(MV)NO.1513/2014 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM APPELLANT/2ND RESPONDENT:** **RELIANCE GENERAL INSURANCE COMPANY LIMITED KOCHI,** **NOW REPRESENTED BY ITS LEGAL-CLAIMS MANAGER, REGIONAL OFFICE, KOCHI-682 020.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER:** **RAHUL S/O.RAVI, NELLADAN HOUSE, CHELAMATTOM VILLAGE, OKKAL KARA-683 550.** **BY ADV SRI.ELSON SIMON** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON 16.07.2021 DELIVERED THE FOLLOWING:** MACA.No.1624 of 2018 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1624 of 2018 - - - - - - - - - - -- - - - - - - - - - - - - Dated this the 16[th] day of July, 2021 ## **JUDGMENT** The appellant – insurance company was the 2[nd] respondent in OP(MV) No. 1513 of 2014 on the file of the Motor Accidents Claims Tribunal, Perumbavur. The respondent in the appeal was the petitioner before the Tribunal. 2. The respondent 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 19.03.2014. It was the case of the respondent that while he was riding pillion on a motorcycle bearing registration No.KL 17/9107 through MC Road, a Car bearing registration No. KL 64 B 4455 driven by the 1[st] respondent in the claim MACA.No.1624 of 2018 _3_ petition in a rash and negligent manner hit on the rear portion of the motorcycle resulting in the respondent falling down and sustaining injuries. He was treated at the Medical Trust Hospital, Erakulam as an in-patient. The respondent was a Businessman and earning a monthly income of Rs.7,500/-. The accident occurred solely on account of the negligence of the driver of the Car, which was insured with the appellant. Therefore, the appellant was liable to pay compensation on account of the negligence of the driver of the Car. 3. The appellant filed a written statement admitting that the Car had a valid insurance coverage. However, it was denied that there was rashness on the part of the driver of the Car. It has further contended that the accident occurred on account of the negligence on the part of the rider of MACA.No.1624 of 2018 _4_ the motorcycle. 5. The rider of the motorcycle also filed OP(MV)No.857 of 2014 claiming compensation from the appellant and the owner of the Car. 6. The Tribunal, consolidated and jointly tried both the original petitions. 7. Two witnesses were examined on the part of the respondent as PWs 1 and 2 and Exts.A1 to A22 were marked in evidence. 8. The Tribunal by a common award allowed the claim petition filed by the respondent, in part, by directing the appellant to pay an amount of Rs.2,49,519/- with interest and costs to the respondent. 7. Aggrieved by the impugned award, the insurance company is in appeal. 8. Heard Sri.Mathews Jacob, the learned Senior MACA.No.1624 of 2018 **==> picture [7 x 9] intentionally omitted <==** Counsel appearing for the appellant and Sri. Elson Simon, the learned Counsel appearing for the respondent. 9. The principal ground of challenge in the appeal is that there was no negligence on the part of the Car as there were two pillion riders on the motorcycle. Hence, the insurance company was not liable to pay the compensation as claimed for in the claim petition or at least, the Tribunal ought to have fixed contributory negligence on the part of the rider of the motorcycle. It is also contended that the compensation awarded by the Tribunal is on the higher side. 10. The Hon'ble Supreme Court in **Mohammed Siddique and another v. National Insurance Company Ltd.** [AIR 2020 SC 520] has held that even if there are two pillion riders on a motorcycle, the MACA.No.1624 of 2018 _6_ same is inconsequential, and the burden of proof is on the insurer to prove that it was on account of two pillion riders that the accident occurred. 11. Undisputedly, in the present case, the respondent have not let in any oral or documentary evidence. Therefore, they have not proved that the accident was caused as there were two pillion riders on the motorcycle. Hence, the said ground of challenge has to necessarily fail. 12. On a perusal of the available materials on record and the impugned award, it can be gathered from Ext.A6 charge-sheet filed by the Perumbavur police in Crime No.1229 of 2014, that the accident occurred solely on account of the negligence of the driver of the Car. The Car was admittedly insured with the appellant. Therefore, it is the driver of the Car who is liable to pay the compensation amount as the MACA.No.1624 of 2018 _7_ Car had a valid insurance coverage. Hence, it is the appellant who is to indemnify the liability of the owner to pay the compensation. 13. The claimed that he was a respondent Businessman by profession and earning a monthly income of Rs.7,500/-. The Tribunal for want of materials, fixed the notional income of the respondent at Rs.6,000/- per month. 14. In the light of the law laid down by the Hon'ble Court in _**v.**_ Supreme _**Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] and the fact that the accident occurred on the year 2014, I hold that the notional income fixed by the Tribunal is reasonable and just. It is on the basis of the notional income fixed by the Tribunal, that the Tribunal has awarded compensation to the appellant. As there was MACA.No.1624 of 2018 _8_ no disability, the Tribunal has only awarded nonpecuniary damages of Rs.1,21,000/- and pecuniary damages of Rs.1,28,519/-, totalling to an amount of Rs.2,49,519/-, as against the claim of the respondent for Rs.5,00,000/-. 15. On an overall re-appreciation of the pleadings and materials on record, I am of the definite opinion that the amount of compensation awarded by the Tribunal is reasonable and just. 16. I do not find any error or illegality in the appreciation of facts by the Tribunal, particularly with regard to the fixation of notional income and the period that the respondent was indisposed. There is no error warranting interference by this Court in exercise of its appellate jurisdiction. 17. The Hon'ble Supreme Court in **New India Assurance Company Ltd. v. Kiran Singh and** MACA.No.1624 of 2018 _9_ **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 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. 18. It is to be borne in mind that the accident has occurred on 19.03.2014. i.e., more than seven years back. the was on Though appeal presented 21.05.2018, the same has been not admitted by this Court till date. The Tribunal has judicially exercised its powers in accordance with the provision in the Motor Vehicles Act, 1988 and the settled proposition of law of the Hon'ble Supreme Court and this Court, which arriving at the conclusion in the impugned MACA.No.1624 of 2018 _10_ 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 an harassment to the respondent 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 16.07.2021**