Reliance General Insurance Company Limited v. Silsha P.V.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943** **MACA NO. 2657 OF 2021** **AGAINST THE AWARD DATED 05.11.2020 IN OP(MV)NO.94/2014 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR.** **APPELLANT/3RD RESPONDENT:** **RELIANCE GENERAL INSURANCE COMPANY LIMITED, 2ND FLOOR, MASHREQ TRADE CENTER, OPP.MUNICIPAL OFFICE, CALICUT ROAD, PERINTHALMANNA, MALAPPURAM-679330, NOW REPRESENTED BY ITS MANAGER, LEGAL-CLAIMS, REGIONAL OFFICE, VISHNU BUILDING, K.P.VALLON ROAD, KADAVANTHRA P.O., KOCHI-682020.** **BY ADVS.MATHEWS JACOB (SR.) P.JACOB MATHEW** ## **RESPONDENT/PETITIONER:** **SILSHA P.V., AGED 25 YEARS, D/O.VIJAYARAGHAVAN, PUZHAKKAL HOUSE, VETTIKATTIRI P.O., THRISSUR DISTRICT, PIN-679531.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2657/2021 -:2:- _Dated this the 4[th] day of October,2021_ ## **J U D G M E N T** The appellant - insurer - was the third respondent in O.P (MV)No.94/2014 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondent in the appeal was the petitioner before the Tribunal. The appellant has not impleaded the respondents 1 and 2 before the Tribunal as the parties in the appeal. Hence, the parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 _,(in short 'Act')_ claiming compensation on account of the injury that she sustained in an accident on 04.07.2013. It was her case that, on 04.07.2013, while she was crossing the Chalakudy-Angamaly National Highway road at Koratty near JTS junction, with her mother and one 'Nitha Mohan', a car bearing registration No.KL-10/ AD-9 (car), driven by the second respondent M.A.C.A.No.2657/2021 -:3:- in a rash and negligent manner, hit the petitioner, her mother and 'Nitha Mohan'. The petitioner sustained serious injuries. She was treated at the Little Flower Hospital, Angamaly, the Specialist Hospital, Ernakulam and the West Fort Hospital, Thrissur. Her mother succumbed to the injuries on the same night. The car was owned by the first respondent and insured with the third respondent. The petitioner had completed 19 years of age and self employed. She was drawing a monthly income of Rs.5,000/-. Hence, she claimed a compensation of Rs.8,36,500/- from the respondents. 3. The petitioner along with her father and other siblings also filed O.P.(MV) No.95/2014 against the respondents before the same Tribunal, claiming compensation on account of the death of her mother. 4. The respondents 1 and 2 did not contest the proceedings and were set _ex parte_ . 5. The third respondent filed separate written statements in the two claim petitions. The third M.A.C.A.No.2657/2021 -:4:- respondent admitted that the car had a valid insurance policy. However, the third respondent disputed the age, occupation and income of the petitioner. It was also contended that the accident occurred due to the negligence of the petitioner, who crossed the road in a negligent manner. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions produced and marked Exts.A1 to A15 in evidence. The third respondent produced Ext.B1 insurance policy and marked it in evidence. 8. The Tribunal by its common award allowed the captioned claim petition, by permitting the petitioner to realise from the third respondent an amount of Rs.4,45,940/- with interest at the rate of 8% per annum from the date of petition till the date of realisation and proportionate costs. 9. Aggrieved by the impugned award, the M.A.C.A.No.2657/2021 -:5:- appellant/third respondent/insurer is in appeal. 10. Heard; Sri. Mathews Jacob, the learned Senior Counsel appearing for the appellant/third respondent. 11. The principle grounds of challenge in the memorandum of appeal are: - _(i) the Tribunal has failed to consider negligence on the part of the petitioner;_ _(ii) the notional income fixed by the Tribunal at Rs.5,000/- per month is unsustainable in law;_ _and_ _(iii) the disability of the petitioner fixed at 16% is excessive._ ## **Ground No.(i)** 12. Ext.A4 final report filed by the police after investigation substantiates that the accident occurred solely due to the negligence of the second respondent. M.A.C.A.No.2657/2021 -:6:- The respondents have not let in any contra evidence to discredit Ext.A4 chargesheet. Therefore, going by the settled law in _**New India Assurance Co. Ltd. v. Pazhaniammal and Others**_ [2011 (3) KLT 648], I hold that Ext.A4 chargesheet has to be accepted on its face value in order to fix negligence on the part of the second respondent. Hence, Ground No.(i) is found against the appellant. ## **Ground No.(ii)** 13. The petitioner had claimed that she was self employed and earning a monthly income of Rs.5,000/-. The Tribunal accepted the said assertion and fixed the notional income of the petitioner at Rs.5,000/- per month. 14. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(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. M.A.C.A.No.2657/2021 -:7:- 15. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2013, I do not find any reason to upset the fixation of the notional income of the petitioner at Rs.5,000/- per month done by the Tribunal. Hence, I confirm the finding of the Tribunal in this regard and answer Ground No.(ii) against the appellant/ third respondent-insurer. ## **Ground No.(ii)** 16. The petitioner had produced Ext.A7 disability certificate to substantiate her disability. It is certified in Ext.A7 that the petitioner has a whole body disability of 22%. Despite the objection raised by the appellant/third respondent regarding the disability assessed by the doctor in Ext.A7, the Tribunal accepted the said document and fixed the functional disability of the petitioner at 16%. 17. In _**Rajkumar v. Ajayakumar**_ [2011(1) KLT 620(SC)], the Honourable Supreme Court has M.A.C.A.No.2657/2021 -:8:- categorically held that, if the Tribunal is not satisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injured/claimant to a duly constituted Medical Board. 18. In the present case, the Tribunal accepted Ext.A7, _dehors_ the objection of the appellant/third respondent, and assessed the functional disability of the petitioner at 16%. The course adopted by the Tribunal cannot be found fault with. Therefore, I hold that the Tribunal has fixed the functional disability of the petitioner which is reasonable and justiciable. Hence, I answer Ground No.(iii) also against the appellant/third respondent-insurer. 19. On a comprehensive appreciation of the pleadings, materials on record and the elaborate findings rendered by the Tribunal, I do not find any error in the compensation awarded at by the Tribunal. 20. The Honourable Supreme Court in _**New Indian Assurance Company Ltd. v. Kiran Singh &**_ M.A.C.A.No.2657/2021 -:9:- _**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. 21. It is to be borne in mind that the accident occurred in the year 2013 and it is nearly seven years, since the petitioner has 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 arithmetic exactitude. I find that the Tribunal has, after a threadbare analysis of the facts, judicially exercised its powers based on the provision of the Act, the authoritative precedents of the Honourable Supreme Court and arrived 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 M.A.C.A.No.2657/2021 -:10:- be a wastage of judicial time and harassment to the respondent. In the result, 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/04.10.2021 //True copy/ P.A.To Judge