Kerala High Court
Shriram General Insurance Co. Ltd vs Lini on 1 November, 2024
MACA NOs.216 & 3630 OF 2021 1 2024:KER:83779
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
MACA NO. 216 OF 2021
AGAINST THE AWARD DATED 13.2.2020 IN O.P.(M.V.) NO.302 OF
2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA
APPELLANT/2ND RESPONDENT :
SHRIRAM GENERAL INSURANCE CO. LTD
10003-E , 8, RIICO INDUSTRIAL AREA,
SITAPURA JAIPUR, RAJASTAN 302022.
REPRESENTED BY ITS LEGAL OFFICER, SHRIRAM GENERAL
INSURANCE COMPANY LIMITED, ERNAKULAM.
BY ADV JACOB MATHEW P
RESPONDENT/PETITIONER :
LINI
AGED 26 YEARS
W/O. JOHNY, LININ BHAVAN, PONGALLI,
PUTHUKULANGARA, UZHAMALAKAL, NEDMANGADU,
NOW RESIDING AT T.S. BHAVAN, KAVARUKONAM,
MANAKAKA, OTTASEKHARAMANGALAM,
THIRUVANANTHAPURAM 695 125.
BY ADV SRI.R.T.PRADEEP
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 01.11.2024, ALONG WITH MACA NO.3630/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
MACA NOs.216 & 3630 OF 2021 2 2024:KER:83779
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
MACA NO. 3630 OF 2021
AGAINST THE AWARD DATED 13.2.2020 IN O.P.(M.V.) NO.302 OF
2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA
APPELLANT/2ND RESPONDENT :
LINI,
AGED 26 YEARS
W/O.JOHNY, LININ BHAVAN, PONGALLI, PUTHUKULANGARA,
UZHAMALAKAL, NEDUMANGADU,
NOW RESIDING AT
T.S.BHAVAN, KAVARUKONAM, MANAKKALA,
OTTASEKHARAMANGALAM, THIRUVANANTHAPURAM-695 125.
BY ADVS.
R.T.PRADEEP
M.BINDUDAS
K.C.HARISH
RESPONDENT/2ND RESPONDENT:
SHRIRAM GENERAL INSURANCE CO. LTD.,
REPRESENTED BY THE MANAGER, 10003-E, 8,
RIICO INDUSTRIAL AREA, SITAPURA,
JAIPUR, RAJASTAN-302022.
SRI. P. JACOB MATHEW , SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 01.11.2024, ALONG WITH MACA NO.216/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
MACA NOs.216 & 3630 OF 2021 3 2024:KER:83779
EASWARAN S., J.
-------------------------
M.A.C.A Nos.216 & 3630 of 2021
-----------------------------------
Dated this the 1st day of November, 2024
JUDGMENT
Two claim petitions, O.P.(M.V.) Nos.302 of 2015 and 352 of
2015, were tried together by the Motor Accidents Claims Tribunal,
Neyyattinakara arising out of a single accident. The present appeals,
are arising out of the judgment in O.P.(M.V.) Nos.302 of 2015.
M.A.C.A. No. 3630 of 2021 is preferred by the injured/claimant and
M.A.C.A. No.216 of 2021 preferred by the Insurance Company.
2. The brief facts of the case are as follows:
On 11.11.2014 at 8.30 a.m., while Smt. Lini, the
appellant/claimant in O.P.(M.V.) No.302 of 2015, was travelling as a
pillion rider on a motorcycle driven by one Sri. Johny, along the
Aryanad-Nedumangad Public road and when they reached near
Puthukulangara CSI Church, a tipper lorry bearing registration No.
KL-01-AW-4370 knocked down them. As a result of which, both the
rider and pillion rider sustained serious injuries and Sri.Johny
MACA NOs.216 & 3630 OF 2021 4 2024:KER:83779
succumbed to the injuries.
3. Heard Sri. R.T. Pradeep, the learned counsel appearing
for the appellant in M.A.C.A. No.3630 of 2021 and Sri. P. Jacob
Mathew, the learned counsel appearing on behalf of the Insurance
Company.
4. On behalf of the claimants, Exts.A1 to A21 were marked.
Before the tribunal, Smt. Lini, the claimant in O.P.(M.V) No.302 of
2015, contended that due to the accident, she suffered serious
injuries and was assessed with a disability at 40%. The tribunal, on
evaluating the evidence on record found that the Doctor who issued
Ext.A13 certificate of disability has not been examined and fixed the
disability at 30%. By fixing the notional income at Rs.8,000/- the
tribunal awarded compensation of Rs.9,51,000/- with 8% interest per
annum from 10.4.2015 till realisation with cost.
5. Sri. R.T. Pradeep the learned counsel appearing for the
appellant in M.A.C.A. No.3630 of 2021 contended that, going by the
principles laid down by the Honourable Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Company Ltd. [(2011) 13 SCC 236], the tribunal ought
MACA NOs.216 & 3630 OF 2021 5 2024:KER:83779
to have taken a monthly income of Rs.9,500/- which has not been
done.
6. Sri. P. Jacob Mathew, the learned Standing Counsel
appearing for the insurance company submitted that the notional
income fixed by the tribunal is highly disproportionate to the claim.
The fixation of the percentage of disability at 30% was done without
examining the Doctor who issued Ext.A13 and the same is highly
improper and thus the compensation awarded is on a higher side.
7. I have considered the rival submissions raised across the
bar.
8. As rightly contended by Sri. R.T. Pradeep, the learned
counsel appearing for the appellant/claimant, there is no absolute rule
that the claimant should always examine the Doctor who issued the
disability certificate. If the tribunal had any difference of opinion with
regard to the percentage of disability, it ought to have referred the
claimant for examination before the Medical Board. In the absence of
any such recourse adopted by the tribunal, this Court has no
hesitation to hold that the procedure followed by the tribunal is in
violation of Rule 387 of the Motor Vehicles Rules 1989. It is pertinent
MACA NOs.216 & 3630 OF 2021 6 2024:KER:83779
to mention that despite this infirmity, the tribunal on its own,
considering the nature of injury, fixed the disability at 30%. This
Court, after closely scrutinizing the nature of injuries suffered by the
claimant, feel that the percentage of disability fixed by the tribunal is
wholly inappropriate or erroneous. It is now settled law that the
tribunal without referring the claimant to further examination by the
Medical Board, cannot unilaterally reduced the percentage of
disability. In Aabaid Khan v. Dinesh and Others [2024 (6) SCC
8149] the Honourable Supreme Court had deprecated the practice of
the MACTs unilaterally reducing or fixing the percentage of disability
without assigning any cogent reasons. As stated above, the tribunal
has not assigned any reasons. However, the question would be
whether at this point of time, this Court should refer the claimant for
further examination. Considering the fact that the accident took place
in the year 2014, after a lapse of 10 years, this Court is not inclined
to refer the claimant/appellant in M.A.C.A. No.3630 of 2021 for
examination before the Medical Board. In the above circumstances,
this Court has no hesitation to hold that the tribunal ought not to
have reduced the percentage of disability from 40% to 30% and
MACA NOs.216 & 3630 OF 2021 7 2024:KER:83779
hence, the same also require interference.
9. In so far as the notional income is concerned, it is to be
noted that even going by the principles laid down by the Apex Court
in Ramachandrappa (Supra) the claimant is entitled to have the
notional income fixed at Rs.9,500/-.
10. In the result, the MACA No.216 of 2021 preferred by the
insurance company stands dismissed. The appellant in M.A.C.A.
No.3630 of 2021 is entitled to get enhanced compensation as follows:
Heads Amount Amount awarded by Enhanced
Awarded by this Court (in Rs.) compensation
Tribunal (in Rs)
Loss of earnings 64,000 76,000 12,000/-
[9500x8]
Permanent disability 5,18,400 8,20,800
(9500x12x18x40/100) 3,02,400
Total enhanced compensation 3,14,400
11. Accordingly, the appellant is entitled to get an enhanced
compensation of Rs.3,14,400/- (Rupees Three Lakh Fourteen
Thousand Four Hundred only) with 8% interest per annum from the
date of petition till realization with proportionate cost. The appellant
shall furnish the details of the bank account to the insurance company
MACA NOs.216 & 3630 OF 2021 8 2024:KER:83779
for transfer of the amount. The insurance company shall deposit the
amount within a period of one month from the date of receipt of a
copy of this judgment.
Appeal ordered accordingly.
Sd/-
EASWARAN S.,
JUDGE
NS
