Selbi vs The Oriental Insurance Co. Ltd
2021 Latest Caselaw 20430 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
      FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                         MACA NO. 3107 OF 2014
 [AGAINST THE AWARD IN OP(MV)NO. 565/2007 DATED 17.7.2013 ON THE
   FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR]
APPELLANT/PETITIONER:

          SELBI
          W/O SAJU, AGED 29 YEARS,PULLOORKUTTY HOUSE, EDATHURUTH,
          NEDUGAPARA,VENGOOR VILLAGE.

          BY ADV SRI.A.N.SANTHOSH



RESPONDENT/S:

          THE ORIENTAL INSURANCE CO. LTD.
          BRANCH OFFICE, ELENGICAL PLAZA, CHURCH VIEW JUNCTION,
          KOTHAMANGALAM- 686 691

          BY SRI.R.AJITHKUMAR VARMA, SC.




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA No.3107 of 2014                        2

                                JUDGMENT

The appellant is the petitioner in

OP(MV)No.565/2007 on the file of the Motor

Accidents Claims Tribunal, North Paravur. The

said claim petition was filed by the petitioner

seeking compensation for the injuries sustained

by her in a motor accident occurred on

27.4.2007. According to the appellant, she was

aged 22 years and was working as a labourer at

the time of the accident and the monthly income

claimed was Rs.3,000/-. On account of the

accident, she sustained very serious injuries

which prevented her from pursuing her avocation

for a long duration. In such circumstances, she

claimed an amount of Rs.1,00,000/- as

compensation.

2. The 3rd respondent/Insurance Company

alone contested the matter by fling a written

statement wherein they have accepted the

coverage of policy but raised the contention of

violation of policy conditions, by the insured.

The quantum of compensation was also seriously

disputed by them.

3. The evidence in this case consists of

Exts.A1 to A8(b) from the side of the appellant

and no evidence was adduced from the side of

respondents. After the trial, the Tribunal

passed an award allowing an amount of

Rs.70,800/- as compensation which was directed

to be deposited by the 3rd respondent-Insurance

Company along with interest at the rate of 8%

per annum. The contention of the Insurance

Company regarding the violation of policy

conditions was also found against the Insurance

Company. Being dissatisfied with the quantum of

compensation, this appeal is filed.

4. Heard both sides.

5. The learned counsel for the appellant

contends that, the monthly income, even though

claimed by the appellant in the application was

Rs.3,000/-, considering the peculiar facts and

circumstances of the case it has to be taken at

a higher rate. It was pointed out that the

appellant was an ordinary labourer, aged 22

years who was not aware of the legal

intricacies of a claim in this regard. The

learned counsel also placed reliance upon the

decision rendered by the Hon'ble Supreme Court

in Minu Rout v. Satya pradyumna

Mohapatra[2013(10)695] wherein the Hon'ble

Supreme Court was pleased to take the monthly

income more than what was claimed in the claim

petition. The appellant also seeks enhancement

of compensation under the head of pain and

suffering and loss of amenities by particularly

bringing to my attention the serious nature of

injuries, which are extracted by the Tribunal

in paragraph 9 of the award.

6. On the other hand, the learned counsel

for the Insurance Company would argue that, as

far as the claim of income is concerned, it is

a matter within the knowledge of the claimant

and since the amount mentioned as monthly

income in the claim petition is Rs.3,000/-

only, under no circumstances a different

yardstick can be applied. The learned counsel

for the Insurance Company points out that, the

Tribunal has already taken the entire monthly

income as claimed by the appellant and hence

no interference is warranted in such

circumstances.

7. It is true that the monthly income

claimed is just Rs.3,000/-. The purpose of an

application under Section 166 of the Motor

Vehicles Act is to ensure just compensation to

the victim so that the victim is reasonably

compensated for the loss suffered. It is a

welfare legislation and to be interpreted and

implemented to advance the object of the

enactment, i.e welfare of the motor accident

victims. In this case, as rightly pointed out

by the learned counsel for the appellant, the

appellant is an ordinary labourer who is not

aware of the complications and consequences of

legal proceedings under Section 166 of the

Motor Vehicles Act. In most of such cases, the

column for monthly income in the claim petition

would be filled by lawyers, as the parties may

not be in a position to give any proper inputs,

because of lack of awareness. As the appellant

in this case being an ordinary person, and not

a person with regular employment, probability

that she failed to appraise her lawyer properly

as to her income, cannot be ruled out. In such

circumstances, denying her due entitlement

would be not in the interest of justice. In

Minu Rout's case (Supra), the Honourable

Supreme Court, considered the question of

monthly income of driver who died in an

accident. Even though, the monthly income

claimed therein was Rs 5,000/-, the Honourable

Supreme Court observed that, the driver being

a skilled employee, it is a matter which can be

taken judicial notice of, and was pleased to

take the monthly income as Rs 6,000/-.

Observations of the Honourable Supreme Court

are as follows,

"The appellants claimed compensation under the heading of loss of dependency as they were all dependents upon the earnings of the deceased Susil Rout. It is an undisputed fact that Susil Rout was working as a driver of the car which is a skilled job.

Appellants have stated in the claim petition and in the evidence of PW-1 that the deceased was earning Rs.5,000/- per month.The oral evidence of PW-1 is not accepted by the Tribunal, solely for the reason that the appellants did not produce

documentary evidence to prove the monthly salary of the deceased as Rs.5,000/- per month as claimed by them. However, it had taken monthly income of the deceased at Rs.3,000/-, for the purpose of determining the multiplicand. Out of Rs.3,000/- p.m., 1/3rd amount was deducted towards personal expenses of the deceased and arrived at Rs.3,84,000/- towards loss of dependency. Out of that compensation, 50% was deducted towards contributory negligence on the part of the deceased and Rs.1,92,000/- was awarded under the above heading. The compensation awarded by the Tribunal is approved by the High Court, which is not only erroneous in law but also suffers from error in law.T hough the claim of the appellants is Rs.5000/- as monthly salary of the deceased for the purpose of determining the loss of dependency, the actual entitlement of the salary of the deceased should have been taken at Rs.6000/- per month by the Tribunal forwarding just and reasonable compensation, which is the statutory duty of the Tribunal and the

Appellate Court."

In this case the said principle can be applied

for the following reason. The injuries as

extracted in paragraph 9 of the award indicate

serious injuries which would have caused

serious difficulties for the appellant in her

employment. This is particularly because, she

was an ordinary labourer who requires to have

physical fitness for carrying out her duties

effectively. It is true that, there is no

material that she was a skilled employee, yet I

am inclined to take judicial notice of her

probable income at higher rates than claimed,

to secure the ends of justice. In this regard,

it is to be noted that in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance

Company Ltd. [(2011)13 SCC 236] Hon'ble Supreme

Court was pleased to take the monthly income of

a coolie as Rs.4,500/- in respect of an

accident occurred in the year, 2004. In Syed

Sadiq v. Divisional Manager, United India

Insurance Company Limited [(2014)2 SCC 735],

the Hon'ble Supreme Court was pleased to take

the monthly income of a vegetable vendor as

Rs.6,500/- in respect of an accident occurred

in the year, 2008. When we consider the

aforesaid yardstick in the factual back ground

of this case, the amount of Rs.3,000/- cannot

be treated as a reasonable figure as the

accident occurred in the year 2007. Thus, in

view of the peculiar factual situation, I am

inclined to fix the monthly income at a higher

rate than claimed by the appellant. In the

facts and circumstances of this case, I am of

the view that, an amount of Rs.6,000/- would

meet the ends of justice as far as the

appellant is concerned and it is fixed as such.

The impact of enhancement of the monthly income

would be only in respect of compensation under

the head of loss of earnings because, no

documents are produced by the appellant to show

any permanent disablement. The Tribunal has

awarded an amount of Rs.12,000/- for loss of

earnings which was calculated at the rate of

Rs.3,000/- for a period of four months.

Considering the nature of injuries and its

impact, I am of the view that, the period of

four months adopted by the Tribunal requires

re-consideration. At any rate, she would have

prevented from attending her work for a period

of six months. In such circumstances, I am

inclined to grant compensation for loss of

earnings at the rate of 6,000/- for a period of

six months. The amount receivable by the

appellant under this head is Rs.36,000/-

(Rs.6,000x6). The Tribunal has already awarded

an amount of Rs.12,000/- under this head. The

balance amount receivable by the appellant

comes to Rs.24,000/-.

8. Under the head of pain and suffering,

the Tribunal awarded an amount of Rs.20,000/-

and an amount of Rs.15,000/- was awarded for

loss of amenities. The learned counsel for the

Insurance Company points out that, the claim

under these heads made by the appellant are

Rs.25,000/- and Rs.20,000/- respectively.

According to the learned Counsel, taking into

account the circumstances existed in this case,

reasonable amounts were already granted by the

Tribunal under these heads and, therefore, no

interference is warranted. However, it is

evident from the records that, she suffered

very serious injuries. In such circumstances,

the amount of Rs.20,000/- granted under the

head of pain and suffering requires re-

consideration. Considering the peculiar factual

situation in this case which I have already

dealt with in the above paragraphs, I am of the

view that,a further sum of Rs.10,000/- would be

a reasonable figure. With regard to the

compensation for loss of amenities also, the

very same reasoning is applicable. Even though

an amount of Rs.20,000/- was claimed under this

head in the claim petition, considering the

peculiar factual situations of this case, I am

of the view that, an amount of Rs.15,000/- more

can be granted.

Thus, the total additional amount of

compensation receivable by the appellant would

come to Rs.49,000/- (Rupees Forty nine thousand

only)[Rs.24000+10000+15000]. The 3rd respondent

Insurance Company is directed to deposit the

said amount along with interest at the rate of

8% from the date of petition within a period

three months from the date of receipt of copy

of this judgment. It is made clear that the

said amount will not carry interest for 386

days as the delay in filing the appeal has been

condoned on such terms vide order dated

3.4.2019 in C.M.Appl.No.3557 of 2014.

The appeal is disposed of as above.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

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