Kerala High Court
United India Insuance Co Ltd vs Rahimon on 21 May, 2024
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
MACA NO. 2579 OF 2022
AGAINST THE AWARD DATED 09.05.2022 IN O.P(M.V) NO.1799 OF
2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VIII,
ERNAKULAM / ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-IV,
ERNAKULAM
APPELLANT/3RD RESPONDENT:
UNITED INDIA INSUANCE CO LTD
(SR MANAGER) VYTTILA BRANCH, ERNAKULAM
REP BY THE ASST. MANAER, REGIONAL OFFICE, KOCHI,
PIN - 682011
BY ADV RAJAN P.KALIYATH
RESPONDENTS/PETITIONERS 2 TO 4:
1 RAHIMON K.V, AGED 48 YEARS,
S/O.LATE VALSALAN, KATTITHARA HOUSE, MARADU P.O.,
ERNAKULAM, PIN - 682304
2 BABY VALSALAN, AGED 69 YEARS,
W/O.LATE VALSALAN K.K., KATTITHARA HOUSE,
MARADU P.O., ERNAKULAM, PIN - 682304
3 REKHA K, AGED 46 YEARS,
D/O.LATE VALSALAN K. K. KATTITHARA HOUSE,
MARADU P.O., ERNAKULAM, PIN - 682304
BY ADV. SRI.DILISH K JOHN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 14.02.2024, THE COURT ON 21.05.2024
DELIVERED THE FOLLOWING:
M.A.C.A. No. 2579 of 2022
-:2:-
MARY JOSEPH, J.
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M.A.C.A. No. 2579 of 2022
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Dated this the 21st day of May, 2024
JUDGMENT
The appeal on hand is originated from an award passed by
Additional Motor Accidents Claims Tribunal-IV, Ernakulam (for
short 'the Tribunal') on 09.05.2022 in O.P(M.V) No.1799/2018.
The appellant is the insurer of the offending vehicle involved in
the motor accident.
2. For the sake of convenience, the parties to this appeal
will hereinafter be referred to as petitioners 2 to 4 and
respondent No.3 in accordance with their status in the Original
Petition.
3. Challenging the quantum of compensation stood
awarded by the Tribunal and the liability fixed on them to pay
compensation in favour of petitioners 2 to 4, the 3 rd respondent
has approached this Court in the appeal on hand. `13,94,949/-
was awarded as the total compensation payable. Interest at the
rate of 9% per annum was also ordered for the sum.
Proportionate costs was also ordered. The Original Petition was
filed by the victim himself seeking compensation for the injuries
sustained by him in the motor accident. He died during the
pendency of the Original Petition and therefore, his legal
representatives got themselves impleaded as additional
petitioners 2 to 4 in the Original Petition by order passed by the
Tribunal in I.A.No.01/2020, but the Original Petition was not
amended as if compensation was sought for death of the victim.
4. The brief facts of the case narrated in the Original
Petition are as follows:
On 02.05.2018 at 8.10 a.m, a Toyota Car bearing
Registration No.KL-07CF-6438 dashed on the rear side of a
bicycle, ridden by Mr.Valsalan in front of Maradu Mangayil High
School situated on Maradu High School road, and thereby he
sustained serious injuries. He was rushed to P.S Mission Hospital,
Maradu. The motor accident was alleged as occurred due to the
rash and negligent driving of the Toyota car by its driver, who
was arrayed as the 2nd respondent in the Original Petition.
Claiming a sum of `50,00,000/- as compensation from the owner,
the driver and the insurer of the Toyota car jointly and severally,
the Original Petition was filed.
5. The learned counsel for the 3rd respondent urged for
arriving at a finding on contributory negligence of the deceased,
contending that he was riding the bicycle in a rash and negligent
manner. It was also contended that the Tribunal erred in not
converting the Original Petition to a death claim instead of a
claim seeking compensation for the injuries sustained by the
deceased. Challenge was also raised on the quantum of
compensation stood awarded by the Tribunal towards loss of
earning, pain and suffering, loss of amenities and permanent
disability contending those as excessive. Compensation stood
awarded was sought to be interfered with for the reasons.
6. On a perusal of the impugned award, it is seen that
the Tribunal had relied on the FIR and the final report, marked
respectively in evidence as Exts.A1 and A4, to arrive at a finding
that the motor accident was occurred solely due to the rash and
negligent driving of the car by its driver. It has been held by a
Division Bench of this Court in The New India Assurance Co.
Ltd. v. Pazhaniammal [2011(3) KLT 648] that when a final
report is marked in evidence, that would form prima facie
evidence of negligence and it can be ignored only when it was
established as the outcome of collusion among the petitioner and
the investigating officer. In the case on hand such evidence is not
forthcoming and this Court is inclined to maintain the fixation of
the liability on the driver of the Toyota car and consequently on
the insurer to indemnify the insured.
7. Mr.Valsalan, the injured in the motor accident had filed
the Original Petition. He died on 13.12.2018, during the
pendency of the Original Petition. Thereafter, his legal
representatives were brought on record. The postmortem
certificate of the deceased has not been produced before the
Tribunal. Therefore, there is nothing on record to establish that
Mr.Valsalan died due to the injuries sustained by him in the motor
accident. Therefore, as on date of filing of the Original Petition
seeking compensation, the victim of the motor accident was alive
and the Original Petition was filed by him seeking compensation
for the personal injuries sustained. The Original Petition was not
amended as a claim for compensation for the death of the victim.
Medical evidence was also not adduced in the case on hand to
establish that death was resulted from the injuries sustained in
the motor accident.
8. The Tribunal had taken `11,500/- as the monthly
income of the deceased, who claimed to be an agriculturalist on a
notional basis. The year in which the motor accident occurred
being 2018, `11,500/- is a reasonable sum and is maintained.
The Tribunal ought not to have calculated a period of 10 months
for the purpose of calculation of compensation for loss of earning.
Following the motor accident, the victim has survived only for 7
months. Therefore, this Court finds it reasonable to award
compensation towards loss of earning by taking only 7 months.
Thus the compensation payable under that head is reduced to
`80,500/- (`11,500/- x 7).
9. Compensation for permanent disability was calculated
by the Tribunal by adopting the multiplier as '5'. The learned
counsel for the 3rd respondent has relied on Cholamandalam
General Insurance Company Limited v. Shailaja [2021 (3)
KLT 371] to contend that the multiplier adopted by the Tribunal is
inappropriate. In the case cited, a person died due to some other
reasons not connected to the motor accident and a claim petition
was filed seeking compensation for personal injuries sustained,
it was held that the Tribunal cannot mechanically adopt the
multiplier for the age group as held in Sarala Verma v. Delhi
Transport Corporation [2010 (2) KLT 802(SC)] for assessing
disability compensation. It was held that the Tribunal can take
the actual years for which the injured survived after the date of
the motor accident while adopting the multiplier. In the above
case, the victim was aged 38 years at the relevant time of the
motor accident and he died after 7 years for reasons
unconnected to the motor accident and the Tribunal adopted a
multiplier applicable to the age at the time of his death and
therefore, it was held so. In the case on hand the victim was
aged 68 years at the time of the motor accident and therefore
the Tribunal is justified in adopting '5' as the multiplier applicable
to that age.
10. The Tribunal had calculated compensation for
permanent disability by considering 50% as his disability. True
that the deceased was not examined by a Medical Board and his
permanent disability got assessed. But it is revealed from Ext.A3
discharge summary that he had undergone below elbow
amputation of his right hand as a consequence of the injuries
sustained by him in the motor accident. It was in such a context
that the Tribunal had taken judicial notice of his disability and
adopted 50%. It appears reasonable and is maintained.
11. This Court finds it appropriate to replace `2,50,000/-
and `1,50,000/- stood awarded by the Tribunal as compensation
towards pain and sufferings and loss of amenities by `75,000/-
and `1,50,000/- respectively. Compensation stood awarded by
the Tribunal towards bystander expenses and extra nourishment
being excessive are modified to `21,000/- and `10,500/-
respectively. Compensation stood awarded by the Tribunal
towards transportation expenses, damages to clothing and
medical expenses are maintained. Rate of interest fixed by the
Tribunal being exorbitant is modified to 8%.
12. In the calculation of compensation afresh with factors
modifed as above, petitioners 2 to 4 are entitled to get
`11,70,949/- (Rupees eleven lakh seventy thousand nine
hundred and forty nine only) (`80,500/- + `3,45,000/- +
`1,50,000/- + `75,000/- + `21,000/- + `10,500/- + `7,000/- +
`2,000/- + `4,79,949/-) instead of `13,94,949/- stood awarded
by the Tribunal. 3rd respondent shall deposit `11,70,949/-
alongwith interest at the rate of 8% per annum from the date of
filing of the Original Petition till the date of realisation and
proportionate costs, within a period of two months from the date
of receipt of a certified copy of this judgment, 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 accordingly.
Sd/-
MARY JOSEPH,
JUDGE.
NAB
