Kerala High Court

The Nattional Insurance Co. Ltd vs The Nattional Insurance Co. Ltd on 8 April, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                  THE HONOURABLE MR.JUSTICE C.S.DIAS

    THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                              MACA.No.2410 OF 2012

 AGAINST THE AWARD IN OP(MV) 60/2006 DATED 25-05-2012 OF SPECIAL
  COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR


APPELLANT/3RD RESPONDENT:

THE NATTIONAL INSURANCE CO. LTD THRISSUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G. ROAD, KOCHI

35.

BY ADV. SRI.GEORGE CHERIAN (SR.)

RESPONDENT/CLAIMANT:

MAJEED @ ABDUL MAJEED S/O.HANEEFA, PALLIPARAMBU HOUSE, NEAR POLICE STATION, ALATHUR P.O. PALAKKAD DISTRICT PIN 678541.

R1 BY ADV. SRI T.C SURESH MENON(COVEATOR) R1 BY ADV. SRI T.C SURESH MENONCOVEATOR R1 BY ADV. SRI.P.S.APPU R1 BY ADV. SRI.A.R.NIMOD R1 BY ADV. SRI.T.C.SURESH MENON

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, ALONG WITH CO.47/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA.No.2410/2012 & CO 47/2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.S.DIAS

THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

CO.No.47 OF 2019 IN MACA. 2410/2012

AGAINST THE AWARD IN O.P (MV)60/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR

CROSS OBJECTOR/RESPONDENT:

MAJEED @ ABDUL MAJEED, AGED 39 YEARS, S/O. HANEEFA, RESIDING AT PALLIPARAMBU HOUSE, NEAR POLICE STATION, ALATHUR P.O, PALAKKAD DISTRICT.

BY ADVS.

SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD

RESPONDENT/APPELLANT:

THE NATIONAL INSURANCE COMPANY LIMITED, THRISSUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-682035.

R1 BY ADV. K.S.SANTHI

THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, ALONG WITH MACA.2410/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA.No.2410/2012 & CO 47/2019

COMMON JUDGMENT

The 3rd respondent - the Insurance Company -

in O.P (MV) No.60/2006 on the file of the Motor

Accident Claims Tribunal, Thrissur is the appellant in

MACA No.2410/2012. The claimant before the

Tribunal is the respondent in the appeal. The

respondent/claimant has filed Cross-objection

No.47/2019 against the appellant/Insurance

Company. As the parties are the same and are

aggrieved by the same impugned award, these cases

are being disposed of by this common judgment. The

parties are, for the sake of convenience, referred to

as per their status in the claim petition.

2. The facts, in brief, for the determination of

the appeal, are: on 16.7.2005 while the petitioner

was riding as a pillion rider on a motorcycle

bearing Reg. No.KL8/Q 8670, which was ridden by

the 4th respondent through the Alathur Court Road,

a bus bearing Reg.No.KL08/AC-5010 (offending MACA.No.2410/2012 & CO 47/2019

vehicle) driven by the 2nd respondent while

attempting to overtake the motorcycle, hit on the

rear side of the motorcycle. In the impact, the

petitioner and the rider of the motorcycle fell down

and sustained grievous injuries. The accident

occurred solely due to the rash and negligent

driving of the offending vehicle by the 2 nd

respondent. The 1st respondent was the owner and

the 3rd respondent was the Insurance Company of

the offending vehicle. The petitioner was a cloth

merchant earning a monthly income of Rs.5,000/-.

The respondents 1 to 3 were jointly and severally

liable to pay compensation to the petitioner which

he quantified at Rs.21,11,000/- rounded off to

Rs.20,00,000/-.

3. The respondents 1 and 2 did not contest

the proceedings and were set ex parte.

4. The respondents, 3,4 and 5 filed separate

written statements. The 3rd respondent admitted

that the the offending vehicle had a valid

insurance policy issued by it at the time of MACA.No.2410/2012 & CO 47/2019

accident. However, it was contended that the

accident occurred not due to the negligence on the

part of the 2nd respondent, but due to the

negligence of the 4th respondent. The amounts

claimed under the various heads in the claim

petition were excessive and exorbitant. Hence,

the claim petition may be dismissed.

5. The petitioner was examined as PW2 and

the Doctor who examined the petitioner and issued

Ext.X2 medical report was examined as PW1.

Exts.A1 to A12 were marked through PW2.

Exts.X1 and X2 were marked as Court Exhibits.

The insurance policy was marked Ext.B1.

6. The Tribunal, after analysing the

pleadings and materials on record, by the

impugned award allowed the claim petition, in

part, by ordering that the petitioner was entitled to

realise an amount of Rs.11,98,250/- with interest

at the rate of 8% per annum from the date of

petition till the date of realisation along with

proportionate costs from the 3rd respondent, who MACA.No.2410/2012 & CO 47/2019

was directed to pay the compensation amount.

7. Aggrieved by the impugned award, the 3 rd

respondent/Insurance Company has filed the appeal.

Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioner has preferred

the cross-objection.

8. Heard Smt.K.S.Santhi, the learned counsel

appearing for the appellant/Insurance Company and

Sri.A.R.Nimod, the learned counsel appearing for the

respondent/claimant.

9. The question that arises for consideration

in this appeal and cross-objection is whether the

amount of compensation awarded by the Tribunal is

just and reasonable.

10. A Constitution Bench of the Hon'ble

Supreme Court in National Insurance Company

Ltd. v. Pranay Sethi [(2017) 16 SCC 680], has

held that Section 168 of the Motor Vehicles Act,

1988, deals with the concept of 'just compensation'

and the same has to be determined on the foundation

of fairness, reasonableness and equitability on MACA.No.2410/2012 & CO 47/2019

acceptable legal standards. The conception of 'just

compensation' has to be viewed through the prism of

fairness, reasonableness and non-violation of the

principle of equitability.

11. It is proved by Ext.A5 final report filed by

the Police that the accident occurred solely due to

the negligence on the part of the 2 nd respondent, who

drove the offending vehicle in a rash and negligent

manner. Exts.A7 and A8 discharge summaries

substantiate that the petitioner was treated as an

inpatient for a period of 81 days. The petitioner was

examined by a Special Medical Board pursuant to

the order of the Tribunal. The Medical Board after

examination of the petitioner and the relevant

documents noted that the petitioner had suffered the

following injuries.

1. Avulsion of penis

2. Avulsion of scrotum

3. Deglowing of lower abdominal wall

4. Femoral artery left exposed MACA.No.2410/2012 & CO 47/2019

12. In light of Ext.A5 final report and that the

appellant/Insurance Company does not dispute that

the offending vehicle was insured by it, there is no

doubt in my mind that the appellant/3rd respondent is

liable to indemnify the owner of the offending

vehicle. Therefore, it is the appellant who is liable to

pay the compensation.

13. The Tribunal, based on Ext.X2 certificate

assessed the disability of the petitioner at 40%.

However, when this appeal came up for

consideration, this Court by order dated 3.12.2019

ordered the petitioner's whole body and functional

disability to be assessed by a competent Medical

Board. Pursuant to the order, the Superintendent of

the Medical College Hospital, Thrissur constituted a

Medical Board, who by the Disability Assessment

Board Certificate dated 18.12.2019 has assessed

the whole body disability of the petitioner. The said

certificate is accepted on record and marked in

evidence as Ext.X3.

14. As per Ext.X3, the Medical Board has MACA.No.2410/2012 & CO 47/2019

assessed the petitioner's total whole body permanent

disability, using the combination formula, at 89%. In

view of the said certification pursuant to the

direction of this Court, Ext.X3 supersedes and

overrides Ext.X2.

15. The petitioner had filed I.A 2/2019 to accept

the treatment certificate issued by Dr.Jyothish.K.,

Associate Professor of Orthopaedics, Government

Medical College Hospital, Thrissur dated 24.1.2019.

The said certificate was issued prior to Ext.X3.

Moreover, the said Doctor has not certified the whole

body/functional disability of the petitioner. In such

circumstances, I am of the opinion that the said

certificate has no relevance, particularly because the

competent Medical Board by Ext.X3, pursuant to the

orders of this Court, has certified the whole body

disability of the petitioner. Therefore, I had dismissed

I.A No.2/2019. Accordingly, I fix the petitioner's

whole body permanent disability as per Ext.X3 at

89%.

MACA.No.2410/2012 & CO 47/2019

16. The main area of dispute is with regard to

the compensation awarded under the heads 'loss of

earning power' at Rs.1,50,000/- and 'loss of

expectation of life' at Rs.1,20,000/-.

17. The learned counsel appearing for the

appellant argued that a Full Bench of this Court in

Oriental Insurance Company Ltd. v. Hariprasad

[2005 (4) KLT 977] has held that once compensation

on account of permanent disability is awarded, no

compensation under the head 'loss of earning

capacity, can be awarded. Therefore, the

compensation of Rs.1,50,000/- under the head

'compensation for loss of earning power' and

Rs.1,20,000/- under the head 'loss of expectation of

life' is erroneous.

18. Per contra, the learned counsel appearing

for the respondent/cross objector/claimant relied on

the decision of this Court in Minor Basid v. Sanu

[2018 (2) KLT 453] to drive home his contention

that subsequent to the decision of the Full Bench in

Hariprasad (supra), the Division Bench in Minor MACA.No.2410/2012 & CO 47/2019

Basid (supra), after referring to a plethora of

decisions of the Hon'ble Supreme Court, has gone on

to hold that the compensation can be awarded under

multiple heads, provided the same is reasonable and

just compensation.

19. In the present case, the petitioner had

claimed that he was a cloth merchant and earning a

monthly income of Rs.5,000/-. The said assertion was

accepted by the Tribunal.

20. In the instant case, in view of the

subsequent declaration of law by the Hon'ble

Supreme Court in Syed Sadiq and others v.

Divisional Manager, United India Insurance

Co.Ltd [(2014) 2 SCC 735] to the most recent

decision in Pappu Deo Yadav v. Naresh Kumar

and Others [AIR 2020 SC 4424], wherein, the

Hon'ble Supreme Court has held that in the case

of permanent disability, future prospects has also

to be awarded, I am of the considered opinion

that the compensation awarded under the heads MACA.No.2410/2012 & CO 47/2019

'loss of earning power' and 'loss of expectation of

life' has got watered down and the above heads of

compensation are inclusive and covered under the

head 'loss due to disability with future prospects'.

Therefore, I hold that the amount awarded by the

Tribunal under the heads'loss of earning power

and loss of expectation of life' have to be set aside.

Accordingly, I set aside the award of

compensation under the said heads ' loss of

earning power and loss of expectation of life'.

Loss due to disability with future prospects

21. The Hon'ble Supreme Court in Pranay

Sethi (supra), Pappu Deo Yadav v. Naresh Kumar

and others (supra) and a whole line of precedents

has gone on to hold that the victims in accidents are

also entitled for future prospects.

22. Considering that the petitioner was 25

years of age at the time of accident, he is entitled to

future prospects at the rate of 40%. Therefore, taking

the income of the petitioner at Rs.5,000/- and MACA.No.2410/2012 & CO 47/2019

following the above parameters, I am of the

considered opinion that the petitioner is entitled for

compensation under the head 'loss due to disability

with future prospects at Rs.13,45,682/- instead of

Rs.4,08,000/- awarded by the Tribunal.

Pain and suffering

23. It is established by Exts.A7 and A8

discharge summaries and Exts.X2 and X3 medical

board certificates that the petitioner had sustained

very serious injuries as mentioned above. He was

treated as an inpatient for a period of 81 days. It is

stated that he is still undergoing treatment and has

various medical complications. Even though the

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

towards pain and sufferings, the Tribunal awarded

only Rs.90,000/-. In view of the peculiar facts and

circumstances of the case, I am of the considered

opinion that the petitioner is entitled for

compensation under the head 'pain and sufferings' at

Rs.1,00,000/-.

MACA.No.2410/2012 & CO 47/2019

Other heads of claim

24. With respect to the other heads of claim,

namely, loss of earning, Transportation expenses,

Bystander expenses, Extra nourishment, Medical

expenses, Loss of amenities, Future treatment and

Loss of marriage prospects, I find that the Tribunal

has awarded reasonable and just compensation.

25. On an overall re-appreciation of the

pleadings, materials on record and the law laid down

by the Hon'ble Supreme Court in the afore-cited

precedents, I am of the firm opinion that the

respondent/cross objector/ petitioner is entitled for

enhancement of compensation as modified and re-

calculated above, and given in the table below for

easy reference.

 MACA.No.2410/2012 & CO 47/2019






      SI.            Head of claim                 Amount awarded by    Amounts
      No                                             the Tribunal (in   modified
                                                         rupees)        and
                                                                        recalculated
                                                                        by       this
                                                                        Court
      1     Loss of earning                             60,000          60,000
      2     Transportation expenses                     25,000          25,000
      3     Bystander expenses                          12,150          12,150
      4     Extra nourishment                           25,000          25,000
      5     Medical expenses                            83,091          83,091
      6     Pain and suffering                          90,000          1,00,000
      7     Loss of amenities                           50,000          50,000
      8     Future treatment                            25,000          25,000
     9.     Loss of marriage prospects                 1,50,000         1,50,000
     10.    Loss of earning power                      1,50,000         Nil
     11.    Loss of expectation of life                1,20,000         Nil
     12.    Loss of disability with       future       4,08,000         13,45,680
            prospects
                                          Total        11,98,241        18,75,921

In the result, the appeal and cross objection are

disposed of by enhancing the compensation by a

further amount of Rs.6,77,680/- with interest at the

rate of 8% per annum on the enhanced compensation

from the date of petition till the date of realisation,

after excluding the delay of 2201 days in filing the

appeal and as ordered by this Court on 18.3.2020 in MACA.No.2410/2012 & CO 47/2019

C.M.A No.1/2019 in Cross Objection 47/2019, and

proportionate costs. The appellant/3rd respondent

shall deposit the enhanced compensation awarded in

the cross objection before the Tribunal with interest

and proportionate costs as ordered above, within a