Kerala High Court
United India Insurance Co. Ltd vs P.Vetrivel on 30 July, 2021
M.A.C.A.No.322/2016 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
MACA NO. 322 OF 2016
AGAINST THE ORDER/JUDGMENT IN OPMV 1002/2012 III ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL-ERNAKULAM
APPELLANT/S:
UNITED INDIA INSURANCE CO.LTD.,
REPRESENTED BY THE DEPUTY MANAGER,
UNITED INDIA INSURANCE COMPANY LIMITED,
REGIONAL OFFICE AT ERNAKULAM, SARANYA,
HOSPITAL ROAD, KOCHI-11.
BY ADV SRI.S.ARUN RAJ
RESPONDENT/S:
VETRIVEL,
S/O.PALANISWAMY, NICHAMPALAYA VILLAGE,
NEAR MARIAMMAN KOVIL, KETTCHERIYUR P.O.,
GOPI TALUK, ERODE DISTRICT, TAMIL NADU.
BY ADV SRI.K.V.RAJAN (CAVEATOR)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 30.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.322/2016 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
CO NO. 45 OF 2016
AGAINST THE ORDER/JUDGMENT IN MACA 322/2016 OF HIGH COURT OF
KERALA, ERNAKULAM
PETITIONER/S:
VETRIVEL, AGED 41 YEARS, S/O.PALANISWAMY,
NICHAMPALAYA VILLAGE,
NEAR MARIAMMAN KOVIL, KETTCHERIYUR P.O.,
GOPI TALUK, ERODE DISTRICT, TAMIL NADU.
BY ADV SRI.K.V.RAJAN
RESPONDENT/S:
UNITED INDIA INSURANCE CO.LTD.,
REPRESENTED BY THE DEPUTY MANAGER,
UNITED INDIA INSURANCE COMPANY LIMITED,
REGIONAL OFFICE AT ERNAKULAM, SARANYA,
HOSPITAL ROAD, KOCHI-11.
BY ADV SRI.A.R.GEORGE
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 30.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
M.A.C.A.No.322/2016 3
JUDGMENT
This appeal is filed by the insurance company, who is the 3 rd
respondent in O.P.(MV).No.1002/2012 on the file of the III
Additional Motor Accidents Claims Tribunal, Ernakulam. The
claim petition was filed by the 1 st respondent herein seeking
compensation for the injuries sustained to him in a motor accident
occurred on 08.09.2011. According to him, he was working as a
cleaner in a lorry and was aged 38 years at the time of accident.
Income claimed was Rs.7,000/-. The amount claimed by him as
compensation was Rs.24,00,000/-.
2. The insurance company alone contested the matter. In
the written statement filed by them, they admitted the coverage of
policy for the vehicle involved, but they disputed the liability on
various grounds. In the trial, Exts.A1 to A12 were marked from
the side of the 1st respondent/petitioner. The disability certificate
issued from the Superintendent, Government Medical College
Hospital, Kottayam was marked as Ext.X1.
3. After the trial, the Tribunal passed an award allowing a
total compensation of Rs.23,09,500/- and the insurance company
was directed to deposit the said amount along with interest at the
rate of 9% per annum from the date of petition. Being aggrieved
by the quantum of compensation, this appeal is filed by the
insurance company. The 1st respondent filed cross objection No.45
of 2016 seeking enhancement of compensation.
4. Heard the learned counsel for the appellant and the
learned counsel for the respondent.
5. The contention of the learned counsel for the appellant
is that, the amount awarded by the Tribunal is extremely higher,
particularly under the head of loss of earning power. He points out
that, even after awarding a substantial amount of Rs.11,34,000/-
under the head of compensation for disability and a further amount
of Rs.4,00,000/- for loss of earning capacity is seen granted.
Similarly, he also points out that, without any material or even no
discussion in the award an amount of Rs.5,00,000/- is granted
under the head of compensation for future treatment. It is his
further case that, even if it is found that respondent is entitled for
any amount under this head, it should not have carried interest
from the date of the petition.
6. On the other hand, the learned counsel for the respondent
contended that the amount awarded by the Tribunal requires
enhancement, particularly under the head of permanent disability.
According to him, he was aged 38 at the time of accident and he
sustained permanent disablement of 90%. The quality of his daily
life itself is seriously affected and he requires assistance of a third
person even for following the basic routine of life. The Tribunal
has not taken into consideration, future prospects in the matter of
income of the petitioner, while calculating the compensation for
disability. He further points out that the bystander expenses
awarded by the Tribunal is only Rs.30,000/- and this amount also
requires to be increased.
7. After considering the entire materials available on record,
I find some force in the contention raised by the respondent as to
the addition to be made towards future prospectus. The
respondent was aged 38 years and was working as a cleaner in a
lorry at the time of the accident. It is evident that the disability
had deprived him from pursuing the said avocation completely. In
such circumstances, as the injury and consequential disability
being very serious in nature, while computing the compensation
for permanent disability, necessarily some additions towards future
prospects have to be made. As per the principles laid down in
National Insurance Company Ltd. v. Pranay Sethi [(2017) 16
SCC 680], in respect of persons below 40 years, an addition of
40% can be made when computing the compensation. In this case,
as the age of the respondent is 38 years, addition of 40% can be
made. Another dispute is regarding the multiplier applicable. The
learned counsel for the appellants points out that, the multiplier
adopted by the Tribunal is 16, whereas going by the decision in
Sarla Verma & Ors. v. Delhi Transport Corporation
[(2009) 6 SCC 121] it should have been 15. I am of the view
that the said contention is in tune with the settled principles of
law and hence it is to be accepted. In such circumstances, while
re-computing the compensation by taking the revised monthly
income with future prospects and also applying the multiplier of
15, the amount payable under the head of compensation for
disability would come to Rs.15,87,600/- [(7000+40%) x 12 x 15 x
90/100].
8. Another contention is relating to compensation for future
treatment. It is true that the amount awarded under this head is
without any materials and the award is completely silent as to the
grounds on which such finding was arrived at. However, at the
same time, there is some force in the contention of the 3 rd
respondent that the amount awarded under the head of bystander
expenses is only Rs.30,000/-. As the respondent being a person
who sustained 90% disability and is bed ridden, he may require
the assistance of a third person even for fulfilling his basic needs
of his regular life through out. Therefore, the amount awarded
under the head of bystander expenses is on lower side. However, I
am not inclined to grant any addition in that head because, as I
have already observed that, about an amount of Rs.5,00,000/- has
been awarded towards future prospects without any supporting
reasons and any materials, which is on higher side. I am of the
view that, the amount of Rs.5,00,000/- as mentioned above would
take care of the expenses which the petitioner may incur towards
bystander expenses. In such circumstances, both the amounts
awarded under bystander expenses as well as compensation for
future treatment are not interfered with and the amount awarded
by the Tribunal under the head of future prospects is treated as
amount intended to cover the and future bystander expenses also.
9. At this juncture, the learned counsel for the insurance
company points out that, the claim of the respondent under the
head of future treatment is only Rs.1,00,000/- and under bystander
expenses, it was only Rs.50,000/-. and the Tribunal has already
awarded substantial amount, more than the amount claimed for.
However, I am of the view that, there is no restriction in granting
more amounts than claimed for and it is a well settled legal
principle. So the aforesaid contention is not legally sustainable.
10. The next aspect is relating to compensation for loss of
earning power. A substantial amount has already been granted
under the head of disability and while computing the same, the
future prospects in the income was also taken into consideration.
Actual loss of earnings was also compensated and an amount of
Rs.1,00,000/- has been granted towards loss of amenities. In such
circumstances, further amount under the head of compensation
for loss of earning power, is not proper and hence, Rs.4,00,000/-
awarded for loss of earning power, awarded by the Tribunal is set
aside. All the amounts awarded under the other heads are retained
as such.
11. Another contention of the learned counsel for the
appellant is that the amount awarded under the head of future
treatment cannot attract interest from the date of petition as the
same is intended to cover the expenses which may incur by him in
future. The said contention is legally sustainable and this Court is
of the view that the interest for the said amount has to be limited
from the date of award only and it is ordered accordingly. In this
regard, it is to be noted that, I have already found that, the amount
of Rs.5,00,000/- by the Tribunal under the head of future
treatment expenses has to be treated as the compensation under
two heads such as future treatment and future bystander
expenses. As both the said compensations are in respect of
expenses which will be incurring in future (with reference to the
date of incident and date of petition), granting interest for the said
amount from the date of the petition is not proper.
12. In the above circumstances, the award passed by the
Tribunal is modified by fixing the total compensation as
Rs.25,62,295/- (Rupees twenty five lakhs sixty two thousand two
hundred and ninety five). Out of the said amount, Rs.20,62,295/-
(Rupees twenty lakhs sixty two thousand tw hundred and ninety
five only) shall carry interest at the rate of 9% per annum, till
realization. Remaining amount of Rs.5,00,000/- (Rupees five lakhs)
shall carry interest at the rate of 9% from the date of award only,
till realization. The insurance company shall deposit the said
amounts along with proportionate costs within a period of three
months from the date of receipt of copy of this judgment.
Appeal is disposed of accordingly.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
DG/2.8.21
