TATA AIG General Insurance Co. Ltd. vs Vijayan

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 MACA NO. 2039 OF 2023 ``` ``` AGAINST THE AWARD DATED 25.03.2023 IN O.P(M.V)NO.1192 OF 2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VATAKARA ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` THE TATA AIG GENERAL INSURANCE CO. LTD. 1ST FLOOR, CITY MALL, OPP OF YMCA, KANNUR ROAD, KOZHIKODE, PIN – 673001 REPRESENTED BY ITS CHIEF MANAGER., BY ADVS.SRI.GEORGE A.CHERIAN SMT.LATHA SUSAN CHERIAN ``` ## **`RESPONDENT/PETITIONER:`** ``` VIJAYAN, S/O CHATHUKUTTI, AGED 51 YEARS, OORALIKKUNNATH HOUSE, O11URP.O., KUNNATHARA, ULLIYERI, KOYILANDY, KOZHIKODE DIST., PIN - 673620 BY ADV. SRI.SALAHUDDEEN AVM ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 01.03.2024, ALONG WITH CO.6/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2039 of 2023 & C.O.No.06 of 2024 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 CO NO. 6 OF 2024 ``` ``` AGAINST THE AWARD DATED 25.03.2023 IN O.P(M.V)NO.1192 OF 2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VATAKARA ``` ## **`CROSS OBJECTOR/RESPONDENT/PETITIONER:`** ``` VIJAYAN, AGED 52 YEARS S/O.CHATHUKUTTI, OORALIKKUNNATH HOUSE, OLLUR, P.O. KUNNATHARA, ULLIYERI, KOYILANDY, KOZHIKODE., PIN - 673620 BY ADVS.SRI.AVM.SALAHUDDEEN SMT.M.P.SEETHA ``` ## **`RESPONDENT/APPELLANT/3RD RESPONDENT:`** ``` THE TATA AIG GENERAL INSURANCE CO. LTD. 1ST FLOOR, CITY MALL, OPP. YMCA, KANNUR ROAD, KOZHIKODE, REPRESENTED BY ITS CHIEF MANAGER., PIN - 673001 ``` ``` THIS CROSS OBJECTION HAVING COME UP FOR HEARING ON 01.03.2024, ALONG WITH MACA.2039/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2039 of 2023 & C.O.No.06 of 2024 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 01[st] day of March, 2024** The appeal on hand and the Cross Objection are originated from an award passed by Motor Accidents Claims Tribunal, Vatakara (for short ‘the Tribunal’) on 25.03.2023 in O.P(M.V) No.1192/2019. 2. According to the appellant, the compensation stood awarded by the Tribunal is excessive and according to the cross objectors, it is on the lower side. Therefore, reduction of compensation is sought by the appellant/insurer and enhancement of the same is sought by the cross objector/petitioner. 3. Before adverting to the contentions raised by the appellant as well as the cross objector, this Court is inclined to have a look at the facts of the case. A road traffic accident was occurred at 8 a.m on 20.07.2019. The cross objector was pillion riding on a ``` M.A.C.A.No.2039 of 2023 & C.O.No.06 of 2024 ``` ``` 4 ``` motorcycle bearing Registration No.KL-56-U-602 from Ulloor to Kavalad and when it dashed against a bicycle due to rash and negligent driving by the rider of the motorcycle, the cross objector sustained serious injuries. He was rushed to Taluk Hospital, Koyilandy and therefrom was referred to Government Medical College Hospital, Kozhikode. He was treated there as inpatient till 28.07.2019. A sum of ₹40,00,000/- was claimed as compensation. The owner, the rider and the insurer of the motorcycle bearing Registration No.KL-56-U-602 were arrayed respectively as respondents 1 to 3 in the above Original Petition. 4. The respondents were served with notice. 1[st] and 2[nd] respondents did not turn up to contest the Original Petition and therefore were declared as _ex parte_ . 3[rd] respondent has filed written statement admitting insurance coverage for the motorcycle bearing Registration No.KL-56-U-602 as on date of the motor ``` M.A.C.A.No.2039 of 2023 & C.O.No.06 of 2024 ``` ``` 5 ``` accident. Negligence on the part of the rider of the motorcycle was denied. The sum claimed as compensation is also disputed for its exorbitant nature. Claims raised by the petitioner regarding his age, occupation and monthly income were also disputed. 5. Exts.A1 to A10 and C1 were marked on the side of the petitioner. The 3[rd] respondent did not adduce any evidence. On appreciation of the evidence, the Tribunal found that the motor accident in question was occurred due to the rash and negligent riding of the motorcycle bearing Registration No.KL-56-U-602 by its rider who was arrayed as the 2[nd] respondent in the Original Petition. The Tribunal found that on account of the injuries sustained by the cross objector in the motor accident, he is entitled to get compensation. It arrived at a sum of ₹14,08,700/- as the compensation payable and directed the 3[rd] respondent to deposit the same with interest at the rate of 9% per annum from the date of filing of the Original Petition till ``` M.A.C.A.No.2039 of 2023 & C.O.No.06 of 2024 ``` ``` 6 ``` the date of payment. Proportionate costs was also awarded. 6. It is contended by the learned counsel for the appellant that the monthly income fixed by the Tribunal is excess. According to her, the victim of the motor accident has claimed in the Original Petition that he was a construction worker and was getting ₹20,000/- monthly. He has not adduced oral or documentary evidence to establish his occupation and monthly income at the relevant time of the motor accident. Therefore, the Tribunal opted to fix the monthly income as ₹12,500/- on a notional basis. The learned counsel for the appellant seeks for taking a lesser sum than ₹12,500/-. 7. It is pertinent to note that the petitioner failed to adduce evidence to establish his occupation and monthly income. The Tribunal was constrained in the context to fix ₹12,500/- on a notional basis. ₹12,000/appears to this Court a sum proportionate to be fixed in ## **`M.A.C.A.No.2039 of 2023 & C.O.No.06 of 2024`** ``` 7 ``` the year 2019 when the motor accident was occurred, on the basis of **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited** [ (2011) 13 SCC 236]. 8. It is evidenced from the medical documents marked in evidence that the petitioner sustained multiple facial bone fractures coupled with subdural heamatoma . Petitioner had undergone frontal craniotomy and excision. He was treated as inpatient for 18 days at Medical College Hospital, Kozhikode. He was residing at Koyilandy and the treatment was availed from Medical College Hospital, Koyilandy. He was treated for two spells in the hospital. It is found from the impugned award that the Tribunal has awarded excess compensation under various heads. Petitioner seeks to maintain the quantum of compensation stood awarded by the Tribunal under various heads except the head permanent disability. He seeks for modification of the compensation for disability by way of enhancement ## **`M.A.C.A.No.2039 of 2023 & C.O.No.06 of 2024`** ``` 8 ``` whereas the appellant seeks for reduction of the compensation stood awarded by the Tribunal under the head permanent disability, extra nourishment, pain and sufferings and discomforts and inconveniences. The income fixed by the Tribunal and the interest awarded by it are also under challenge by the appellant. This Court finds the compensation stood awarded by the Tribunal towards extra nourishment, pain and suffering and inconveniences, excessive. 9. This Court has noticed from the impugned award that loss of earning has been awarded by the Tribunal for eight months. When monthly income is modified to ₹12,000/-, ₹96,000/- (₹12,000/- x 8) is payable. Thus there will be a reduction of ₹4,000/- (₹1,00,000/- - ₹96,000/-) from the compensation stood awarded by the Tribunal under that head. 10. Petitioner was residing at Koyilandy and had undergone treatment at Medical College Hospital, ``` M.A.C.A.No.2039 of 2023 & C.O.No.06 of 2024 ``` ``` 9 ``` Kozhikode. Treatment was availed for two spells and is inclusive of 9 days as inpatient and outpatient on several occasions. ₹18,000/- stood awarded as compensation towards transportation expenses undoubtedly is on the higher side and this Court is inclined to re-fix it as ₹10,000/-. As compensation towards extra nourishment ₹50,000/- was found awarded against a claim of ₹1,00,000/-. This undoubtedly being a higher sum, this Court is inclined to re-fix it as ₹10,000/-. As compensation towards bystander expenses, ₹8,000/- was awarded by the Tribunal and it being reasonable is maintained. As compensation towards pain and sufferings and discomforts and inconveniences ₹1,50,000/- and ₹1,00,000/respectively were awarded. Petitioner sustained multiple facial bone fractures as well as head injury and therefore, this Court is inclined to reduce those to ₹75,000/- each under those heads. ``` M.A.C.A.No.2039 of 2023 & C.O.No.06 of 2024 ``` ``` 10 ``` 11. The monthly income is re-fixed by this Court as ₹12,000/-. 25% is required to be added to the refixed monthly income, in consideration of loss of future prospects. Therefore, ₹15,000/- (₹12,000/- + 25% of ₹12,000/-) is arrived at. The prayer of the petitioner to take a higher percentage of disability is discarded being devoid of any basis. The percentage of disability considered by the Tribunal is maintained. When compensation for disability is calculated afresh with the modified monthly income and other factors maintained, ₹9,36,000/- (₹15,000/- x 12 x 13 x 40/100) is arrived at. 12. When compensation payable is recalculated in the light of the modifications made by this Court, petitioner will get ₹12,17,700/- (Rupees twelve lakhs seventeen thousand and seven hundred only) (₹96,000/+ ₹10,000/- + ₹2,000/- + ₹10,000/- + ₹5,700/- + ₹8,000/- + ₹75,000/- + ₹75,000/- + ₹9,36,000/-) as compensation in the place of ₹14,08,700/-, stood awarded ``` M.A.C.A.No.2039 of 2023 & C.O.No.06 of 2024 ``` ``` 11 ``` by the Tribunal. 9% was fixed by the Tribunal as the interest rate. The motor accident being occurred in the year 2019, this Court finds it appropriate to re-fix the rate as 8%. ₹12,17,700/- arrived at now as the modified compensation will carry interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation, excluding 162 days of delay occurred in filing the Cross Objection. The insurer shall deposit the modified compensation with interest fixed as above within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the compensation in favour of the petitioner shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A is allowed in part and the Cross Objection is dismissed. Sd/- **MARY JOSEPH** **JUDGE** NAB