National Insuranmce Company Ltd vs Mohammed Ubaidulla.V
2022 Latest Caselaw 12 Ker

MACA NO. 583 OF 2011
                                 1

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
    MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
                       MACA NO. 583 OF 2011
 AGAINST THE ORDER/JUDGMENT IN OPMV 457/2008 OF MOTOR ACCIDENT
                       CLAIMS TRIBUNAL TIRUR
APPELLANT/S:

          NATIONAL INSURANMCE COMPANY LTD.
          3RD FLOOR, EAST FORT COMPLEX, FORT MAIDAN, (PO),
          PALAKKAD - 678 013 REPRESENTED BY ITS MANAGER,,
          REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.

          BY ADV SRI.LAL GEORGE



RESPONDENT/S:

    1     MOHAMMED UBAIDULLA.V.AGED 35 YEARS
          S/O.VETTIYADAN MOHAMMED HAJI, THUMBAYIL HOUSE,,
          KOLAPPURAM NORTH, P.O.A.R.NAGAR, MALAPPURAM, DIST -
          676505.

    2     ASKAR N NEYYATHOOR HOUSE
          (PO) PUNNATHALA, (VIA) VALANCHERI,, TIRUR TALUK,
          MALAPPURAM DIST - 676552.

    3     M.R.RAJARAMAN SO.M.RAMASWAMY
          XI/149B, VASNA RESIDENTIAL APARTMENTS,, KARAKKAD
          ROAD (PO) GURUVAYOOR - 680101,, THRISSUR DIST.

    4     THIRUPPATHI A SO.ARUNCHALAM
          PAPPAIYAPURAM VILLAGE, PERAIYUR TALUK,, MADURAI DIST
          - 626703.

    5     M.ARUNACHALAM SO.MARIYAPPA NADAR
          12/4 N.N.ROAD, VIRUDHU NAGAR,, DIST TAMIL NADU - 626
          001.
 MACA NO. 583 OF 2011
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    6       THE NEW INDIA ASSURANCE CO.LTD.
            30, SAMI ANNAN PILLAYAR KOIL STREET,, VIRUDHU NAGAR
            DIST, TAMIL NADU - 626 001.

            BY ADVS.
            SRI.A.KRISHNAN
            SRI.VPK.PANICKER




     THIS   MOTOR   ACCIDENT   CLAIMS   APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 583 OF 2011
                                  3

                         JUDGMENT

The appellant - insurer was the 3 rd respondent in OP(MV)

No.457/2008 on the file of the Motor Accidents Claims

Tribunal, Tirur. The respondents in the appeal were the

petitioner and respondents 1, 2, 4, 5 and 6 before the Tribunal.

The parties are, for the sake of convenience, referred to as per

the status before the Tribunal.

2. The petitioner had filed the claim petition under Section

166 of the Motor Vehicles Act, 1988, claiming compensation on

account of the injuries that he sustained in an accident on

12.03.2008. It was his case that, while he was traveling in a bus

bearing registration No.KL-9K-9345 (bus) from Calicut to

Kolappuram, the bus attempted to overtake a lorry bearing

registration No.TN 67 C- 6477 (lorry), but, due to the rash and

negligent driving of the 1st respondent - driver of the bus, the

bus hit the lorry and the accident occurred. The 2 nd respondent

was the owner and the 3rd respondent was the insurer of the

bus. The respondents 4 to 6 were the driver, owner and insurer

of the lorry, respectively. The petitioner was treated at the MACA NO. 583 OF 2011

Medical College Hospital and the Baby Memorial Hospital,

Calicut. The petitioner sustained a fracture of the humerus

head region, crush avulsion of the right upper limb and

traumatic amputation of the right upper limb. The petitioner

became permanently disabled. The petitioner was aged 35

years at the time of the accident. He was a driver by profession

and was earning a monthly income of Rs.7,500/-. Hence, the

petitioner claimed a compensation of Rs.38,08,000/- from the

respondent, which claim was limited to Rs.25,00,000/-.

3. The respondents 1, 2, 4 and 5 did not contest the

proceeding and were set ex-parte.

4. The 3rd respondent had filed a written statement

admitting that the bus had a valid insurance coverage.

However, it was contended that the accident occurred due to

the negligence of the petitioner, who put his hand out of the

bus while traveling. The 3rd respondent also disputed the age,

income and occupation of the petitioner.

5. The 6th respondent had filed a written statement

admitting that the lorry had a valid insurance coverage. The 6 th

respondent contended that the accident occurred due to the MACA NO. 583 OF 2011

negligence of the 1st respondent. Hence, the 6th respondent

prayed to be exonerated of its liability.

6. The petitioner examined himself as PW1 and marked

Exts.A1 to A15 in evidence. The disability certificate issued by

the Taluk Headquarters Hospital, Tirur was marked as Ext.C1.

The respondents did not let in any evidence.

7. The Tribunal, after appreciating the pleadings and

materials on record, allowed the claim petition in part, by

permitting the petitioner to realise from the 3 rd respondent an

amount of Rs.16,30,000/- with interest @ 7.5% per annum

from the date of petition till the date of realisation with cost of

Rs.20,000/-.

8. Aggrieved by the allowing of the claim petition, the 3 rd

respondent - insurer is in appeal.

9. Heard; Sri. Lal George, the learned counsel appearing

for the appellant - 3rd respondent, Sri. A. Krishnan, the learned

counsel appearing for the 1st respondent - petitioner and Sri.

VPK. Panicker, the learned counsel appearing for the 6 th

respondent - insurer of the lorry.

10. The point that arises for consideration in the appeal is MACA NO. 583 OF 2011

whether the compensation awarded by the Tribunal is

reasonable and just ?

11. The learned counsel appearing for the

appellant/insurer confined his argument to the point that the

amount awarded by the Tribunal towards future treatment for

the purchase of the artificial upper limp (prosthetic arm), on

the basis of Ext.A12 quotation, is erroneous because Ext.A12 is

only a quotation and, therefore, the Tribunal ought not to have

awarded any amount towards future treatment, without there

being adequate proof of purchase of the artificial limb. He also

contended that the direction in the impugned award that the

petitioner is entitled for interest on the above said amount is

wrong and may be set aside.

12. Ext.A9 final report filed by the Police proves that the

accident occurred due to the negligence of the 1st respondent.

Admittedly, the 2nd respondent was the owner and the 3 rd

respondent (appellant) was the insurer of the bus. The 3 rd

respondent has not discredited Ext.A9 final report or proved

that the 2nd respondent had violated the insurance policy

conditions. Therefore it is the appellant - 3 rd respondent insurer MACA NO. 583 OF 2011

who is liable to pay the compensation amount.

13. Ext.C1 disability certificate establishes that the

petitioner's right upper limb at the shoulder level had to be

disarticulated due to the accident. The Medical Board has

found that the appellant has 85% permanent disability. The

Tribunal fixed his functional disability at 100%. For the

reconstruction of the upper limb with an artificial one, the

appellant produced Ext.A12 certificate issued by the Health

Care Company specializing in prosthetic rehabilitation. The

company had quoted an amount of Rs.4,95,600/- for supply of

the myo-electric shoulder disarticulation prosthesis. The

company assured to supply the artificial limb on condition that

the petitioner pays 50% amount in advance and the balance

against delivery. The Tribunal accepted Ext.A12 and awarded

the petitioner an amount of Rs.4,95,600/- for the purchase of

the artificial limb. It is aggrieved by the awarding of the said

amount that the insurer has filed the appeal.

14. It is to be borne in mind that the petitioner had filed

the claim petition seeking compensation on account of the

injuries sustained in the accident and for future treatment. MACA NO. 583 OF 2011

Taking into account Ext.A12, the Tribunal awarded the

petitioner an amount of Rs.4,95,600/- for future treatment. It is

evident from Ext.A12, that the said artificial limb would be

supplied only on payment of 50% of the cost of the artificial

limb.

15. Indisputably, the petitioner was indisposed and

incapacitated. He does not have means to purchase the

artificial limb without getting the compensation amount. It is

to be remembered that the Motor Vehicles Act, 1988 permits

award of expenses for future treatment. The implanting of

prosthesis is an integral part of future treatment. Therefore, I

do not find any error in the Tribunal awarding the amount as

certified in Ext.A12 to the petitioner. It is only after purchase,

the petitioner can produce the invoice. More over, prosthesis

has to be replaced every 3 to 4 years. Therefore, I do not find

any error in the Tribunal awarding an amount of Rs.4,95,600/-

towards future treatment of the petitioner. Nevertheless, the

petitioner is not entitled for interest on the amount for future

treatment. I do not find any error or illegality committed by the

Tribunal in awarding the amount of Rs.16,30,000/- with interest MACA NO. 583 OF 2011

and cost to the petitioner as compensation, which includes

future treatment. However, I make it clear that the amount of

Rs.4,95,600/- awarded towards future treatment shall not carry

interest.

In the result, the appeal is dismissed, but making it clear

that the petitioner would be entitled to interest only for an

amount of Rs.11,34,400/- @ 7.5% per annum from the date of

petition till the date of realisation. If the appellant has already

complied with the interim order dated 01.06.2011 by

depositing 60% of the compensation amount awarded by the

Tribunal, the same shall be given credit to while calculating the

interest. The parties shall bear their respective costs.

Sd/-

C.S.DIAS, JUDGE

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