Royal Sundaram Alliance ... vs Ajay P
2021 Latest Caselaw 23982 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
             THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 13TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943
                    MACA NO. 871 OF 2016
 AGAINST THE AWARD IN OPMV 1046/2012 OF PRL. MOTOR ACCIDENT
                 CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/3RD RESPONDENT:

         ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED
         NOW REPRESENTED BY THEIR ZONAL HEAD,
         SUBRAMANIAM BUILDING, CLUB HOUSE ROAD,
         ANNASALAI, CHENNAI-600 002.
         BY ADVS.
         SRI.MATHEWS JACOB (SR.)
         SRI.P.JACOB MATHEW
         SMT.PREETHY R. NAIR


RESPONDENT/PETITIONER:

         AJAY P
         S/O.PRABHAKARAN NAIR.K, NARAYANA HOUSE,
         VENGERI PO, KOZHIKODE - 673 010.
         BY ADV SRI.V.S.CHANDRASEKHARAN


     THIS MOTOR ACCIDENT CLAIMS       APPEAL HAVING BEEN
FINALLY HEARD ON 30.9.2021, THE       COURT ON 13.12.2021
DELIVERED THE FOLLOWING:
 M.A.C.A.No.871 of 2016
                                       2




                             T.R. RAVI, J.
              --------------------------------------------
                        M.A.C.A.No.871 of 2016
               --------------------------------------------
              Dated this the 13th day of December, 2021

                                 JUDGMENT

The appeal is filed by the Insurance Company, which was the

3rd respondent in O.P.(MV)No.1046/2012 before the Motor Accident

Claims Tribunal, Kozhikode filed by the 1 st respondent herein. On

16.7.2011, the motorcycle in which the 1 st respondent was

travelling was hit by a lorry driven in a rash and negligent manner

resulting in serious injuries to the 1st respondent. The 1st

respondent was initially treated at Appolo BGS Hospital, Mysore till

31.8.2011. He was referred to Baby Memorial Hospital, Kozhikode,

where he underwent treatment till 22.9.2011. He was thereafter

treated at Christian Medical College, Vellore from 22.9.2011 till

15.12.2011 and then at Neuro Surgery Department from

15.12.2011 till 23.12.2011. He was again shifted to Physical

Medicine and Rehabilitation where he was treated as an inpatient

between 23.12.2011 and 16.2.2012. The 1st respondent was

working as Engineer Associate at Nestle India Ltd. At Nanjangud

and was earning a salary of Rs.21,409/- at the time of the

accident. As a result of the accident, he became completely M.A.C.A.No.871 of 2016

disabled and was depending on his aged parents even for his daily

pursuits. In the claim petition filed by the 1st respondent, the

Tribunal granted a compensation of Rs.1,72,28,800/-. The

Insurance Company has filed this appeal contending that the

compensation awarded by the Tribunal is highly excessive.

2. Heard the learned counsel for the appellant and the

learned counsel for the respondent.

3. The first contention raised by the counsel for the

appellant is that the Tribunal went wrong in treating the disability

of the 1st respondent as 90% as against the assessment made by

the Medical Board in Ext.C1 certificate as 74% disability. The

second contention is that the claim petition was filed on

15.05.2012 and hence the Tribunal ought not to have granted

compensation for loss of earnings for five years, since the 1 st

respondent will be entitled to compensation with effect from the

date of the claim petition, which is within 10 months. It is hence

submitted that loss of earnings ought to have been awarded only

for 10 months. The counsel for the 1st respondent pointed out that

regarding the disability two Doctors were examined before the

Tribunal as PW2 and PW3. The Tribunal has considered the issue

in detail and has found that the 1 st respondent has been crippled M.A.C.A.No.871 of 2016

for life due to severe cranial injuries apart from fracture of the

limbs, which was the reason why a functional disability of 90% was

adopted. It is further submitted that even going by the disability

certificate Ext.C1, it can be seen that 74% was assessed after

combining neurologic and hearing disabilities. The neurosurgery

evaluation shows he has 90% disability. In the light of the nature

of the injuries sustained by the 1 st respondent and the fact that he

has become crippled for life without being able to do any work, I

find that it is actually a case of 100% disability and hence I do not

find any reason to interfere with the finding of the Tribunal that

there was 90% disability, at the instance of the Insurance

Company.

4. Regarding the contention that the Tribunal went wrong

in granting compensation for loss of earnings for 5 years, the

appellant is fully justified. The compensation granted under the

head permanent disability would cover the loss of earning for the

period subsequent to the filing of the claim petition also. The

amount to which the 1st respondent will be entitled towards loss of

earning will hence be Rs.2,14,090/- (21409x10). The Tribunal has

hence awarded a sum of Rs.10,70,450/- (1284540-214090) in

excess under the said head. The said amount has to be reduced M.A.C.A.No.871 of 2016

from the total compensation awarded.

5. In the result, the appeal is allowed in part. The

compensation awarded by the Tribunal is modified as

Rs.1,61,58,350/- (Rupees One Crore Sixty One Lakhs Fifty

Eight Thousand Three Hundred and Fifty only). The appellant

shall deposit the balance amount of the compensation as modified

by this Court, before the Tribunal, within two months from the date

of receipt of a certified copy of this judgment. The disbursement

of the compensation to the 1st respondent shall be in accordance

with law.

Sd/-

T.R. RAVI JUDGE

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