United Indis Insurance Company ... vs Suhara Packayi
2021 Latest Caselaw 18969 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
                  MACA NO. 3031 OF 2014
AGAINST THE AWARD IN OPMV 845/2012 OF III ADDITIONAL MOTOR
           ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/3RD RESPONDENT:

         UNITED INDIA INSURANCE COMPANY LIMITED
         NOW REPRESENTED BY ITS
         ASSISTANT MANAGER,REGIONAL OFFICE,
         "SHARANYA",HOSPITAL ROAD,
         KOCHI-11.
         BY ADVS.
         SRI.MATHEWS JACOB (SR.)
         SRI.P.JACOB MATHEW


RESPONDENT/PETITIONER:

          SUHARA PACKAYI
          W/O.LATE PACKAYI,NEERUNKAL HOUSE,
          RAJAGIRI.P.O,S.KALAMASSERY,
          PIN-683104.
         BY ADVS.
         SRI.ANIL S.RAJ
         SMT.ANILA PETER
         SMT.K.N.RAJANI
         SRI.RADHIKA RAJASEKHARAN P.
         SRI.J.VIVEK GEORGE


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 M.A.C.A.No.3031 of 2014
                                     :-2-:




                                 T.R.RAVI, J.
                    --------------------------------------
                         M.A.C.A.No.3031 of 2014
                -----------------------------------------------
                 Dated this th 10th day of September, 2021

                              JUDGMENT

This appeal is filed by the insurer who was the 3 rd respondent

in OP(MV)No.845/2012 before the Third Additional Motor Accident

Claims Tribunal, Ernakulam. The respondent while standing by the

side of a road was hit by a car causing serious injuries. She

preferred a claim petition before the Tribunal and by award dated

30.07.2014, the Tribunal ordered a compensation of Rs.4,65,948/-

with interest at 9%. The first contention of the appellant/insurer is

that the Tribunal has granted excessive amount under the head

"pain and suffering" by granting Rs.50,000/-. Another contention is

that amount has been granted for future treatment as Rs.20,000/-,

even though the Tribunal had recorded a finding that there was no

evidence available on record regarding the necessity for future

treatment. The third contention is that after granting compensation

under the head 'disability', no further amount could have been M.A.C.A.No.3031 of 2014 :-3-:

granted for compensation for "loss of earning power" going by the

dictum of the Full Bench of this Court in Oriental Insurance

Co.Ltd. v. Hariprasad reported in [2005 (4) KLT 977].

Reference is also made to the decision in T.N.Transport Corpn.

Ltd. v. S.Rajapriya & Ors. reported in [(2005) 6 SCC 236] to

submit that the prevailing rate of interest should have been taken

into account and only interest @ 7.5% ought to have been granted.

2. Heard Sri Mathew Jacob, Senior Advocate, instructed by

Sri Jacob Mathew on behalf of the appellant and Smt. K.N.Rajani on

behalf of the respondent.

3. It can be seen that the respondent had suffered fracture

of the 2nd to 7th ribs on the left side, trimalleolar fracture right with

ankle subluxation, fracture superior and inferior pubic rami, fracture

of olecranon right elbow, 3 part fractures of proximal humerus with

severe communution, acetabulum fracture right anterior column plus

anterior wall, lacerated wound on the right ankle, forehead and right

elbow, punctured wound at the forehead, lacerated wound on the

chin, abrasion on the face and extremities. The monthly income

was fixed at Rs.4,000/- for the reason that the respondent was a M.A.C.A.No.3031 of 2014 :-4-:

house wife. Ext.X1 disability certificate issued by the Medical Board,

General Hospital, Ernakulam was relied on for ascertaining the

permanent disability at 20%. I find that the compensation granted

under the head disability is justified. The contention that loss of

earning power should not have been treated as a separate head of

compensation after having granted compensation under the head

"disability" is justified and the award is liable to be interfered with on

that count.

4. On the contention that excess amount has been granted

towards "pain and suffering", having regard to the nature of injuries

and the fact that the respondent who is a home maker who had to

be hospitalised from 26.1.2012 to 23.2.2012 and the fact that

Rs.2,79,447.85 was spent towards medical expenses alone, I find

that the amount granted by the Tribunal is reasonable and does not

require any interference.

5. Regarding compensation for future treatment which has

been granted by the Tribunal, it is correct that in para.9, the Tribunal

has noted that there is no evidence to show that it is necessary for

continuing treatment. However, the discharge summary would show M.A.C.A.No.3031 of 2014 :-5-:

the requirement for future treatment, after the treatment that was

given to the respondent, which includes fixation of ankle, fixation of

posterior malleolus with 3.5mm LCP synthes with 2 proximal and 2

distal screws, fixation of lateral malleolus with 5 hole recon locking

plate (synthes) with 2 proximal and 2 distal screws and fixation of

medial malleolus with 3.5m LCP (synthes) with 2 proximal and 2

distal screws. In the above circumstances, the grant of Rs.20,000/-

towards future treatment also cannot be said to be not justified.

6. As far as the contention that interest granted is on the

higher side, the judgment relied on by the counsel relates to the

year 2001 and it will not be fair to apply the same yardstick in a

case where the accident took place in 2012. There is no reason to

interfere with the interest awarded by the Tribunal.

7. In the result, the award of the Tribunal is modified by

reducing the same to Rs.10,000/- awarded towards loss of earning

and directing the payment of Rs.4,55,948/- (Rupees Four Lakhs

Fifty Five Thousand Nine Hundred and Forty Eight only).

8. At the time of admission, this Court had granted a stay

on condition that the appellant deposits 50% of the award amount M.A.C.A.No.3031 of 2014 :-6-:

which is permitted to be withdrawn by the claimant. The balance

amount payable as per this modified judgment will be deposited by

the appellant before the Tribunal with interest at 9% per annum

from the date of the petition till the date of realisation, within two

months from the date of receipt of a certified copy of this judgment,

after deducting any amount to which the respondent is liable

towards balance court fee and legal benefit fund.

9. The disbursement of the compensation to the respondent

shall be in accordance with law.

The appeal is disposed of as above.

Sd/--

T.R.RAVI JUDGE dsn