Kerala High Court

Royal Sundaram General Insurance ... vs Sudheesh Chandran V on 7 October, 2022

      IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
         THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
  FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                    MACA NO. 405 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 29.6.2018 IN OPMV 866/2015
 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD
APPELLANT/R3:

         ROYAL SUNDARAM GENERAL INSURANCE COMPANY LIMITED,
         COIMBATORE NOW REPRESENTED BY THEIR ZONAL HEAD,
         SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI,
         CHENNAI-600002.
         BY ADV P.JACOB MATHEW


RESPONDENT/PETITIONER:

         SUDHEESH CHANDRAN V.,
         S/O VASUDEVAN, HILL VIEW NAGAR, KANJIKKODE P.O.,
         PALAKKAD-678621.

         BY ADVS.
         SRI.NAGARAJ NARAYANAN
         SRI.SAIJO HASSAN
         SRI.BENOJ C AUGUSTIN
         SRI.PRATHAP PILLAI
         SRI.RAFEEK. V.K.
         SRI.U.M.HASSAN
         SMT.P.PARVATHY
         SMT.SURYA P SHAJI


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07.10.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA 405/2019

                               2



                    C.JAYACHANDRAN, J.
          ------------------------------------
                   MACA No.405 of 2019
          -------------------------------------
         Dated this the 7th day of October, 2022


                     J U D G M E N T

1. The third respondent/insurance company is the

appellant herein. The award under challenge is the

one dated 29.6.2018 in O.P.(M.V.) No.866/2015 of the

II Additional Motor Accidents Claims Tribunal,

Palakkad. The petitioner met with a road accident on

27.1.2015 and sustained serious injuries. The appeal

is essentially based on the excessive compensation

awarded, according to the appellant.

2. Heard Sri.P.Jacob Mathew, learned counsel for

the appellant/insurance company and Sri.Nagaraj

Narayanan, learned counsel for the

respondent/petitioner. Perused the records.

3. Learned counsel for the appellant first pointed

out that the Tribunal quite erroneously reckoned 40%

towards future prospects in the case of an accident MACA 405/2019

resulting in injury, without there being any serious

disability. The disability assessed is only at 20%

as per Ext.X1. The course adopted by the Tribunal is

wrong, contends the appellant. This Court can only

endorse the submissions made by the learned counsel

for the appellant. It has come out in evidence that

the claimant is continuing in the same Company even

after the accident. There is no material to show

that he is entitled to compensation towards loss on

account of future prospects, especially when the

accident has resulted in injuries, of course of the

serious nature. The disability assessed is only at

20%. Therefore, the future prospects awarded @ 40%

is liable to be obliterated. It is so ordered.

4. The second ground is with respect to loss of

earnings, which has been granted for six months. The

period of six months reckoned is on the higher side

is the contention of the learned counsel for the

appellant. This Court finds no merit in the said

contention of the appellant. Having regard to the

serious nature of injuries sustained, the period of MACA 405/2019

six months granted towards the loss of earning is

not on the higher side and the contention in this

regard is rejected.

5. The next contention is with respect to grant of

Rs.50,000/- towards future medical expenses.

According to the learned counsel for the appellant,

there is no material, which would suggest that the

claimant requires future treatment, in the absence

of which, grant of Rs.50,000/- towards future

medical expense is not justified. Here again, this

Court is not in a position to endorse the submission

made by the learned counsel for the appellant.

Ext.A9 is the discharge summary issued from the

Ganga Medical Centre and Hospital (P) Ltd.,

Coimbatore. The diagnosis is as follows:-

"FOLLOW UP CASE OF CRUSH INJURY LEFT FOOT

STATUS - HEALTHY GRACILIS FREE FLAP OVER

THE DORSUM AND INFECTED OPEN PPX FRACTURE

LEFT GREAT TOE."

The procedure referred to therein is also relevant,

which is extracted herein below:

MACA 405/2019

"DEBRIDEMENT OF THE LEFT FOOT SHORTENING

OF THE LEFT GREAT TOE FILLET FLAP COVER

LEFT GREAT TOE"

This Court would note that the discharge summary

pertains to the follow up made by the claimant after

the initial treatment undergone. Towards the close of the discharge summary, the claimant has been

directed to review on the Plastic OPD, with a

further indication with respect to the person to be

contacted for assistance for plastic surgery. This

Court also would take into account the narrative of

the injuries sustained by the respondent/claimant,

as contained in paragraph 8 of the impugned award.

The above facts, particularly the reference to the

review at the Plastic OPD indicating the necessity

for a plastic surgery, would justify the grant of

Rs.50,000/- towards future medical expenses. It

cannot be conceded as an absolute proposition that

except in a case where future treatment is

specifically recorded, no amount can be granted

towards expenses for future treatment. If future

treatment is indicated from a reading of the MACA 405/2019

discharge summary and the same is decipherable from

the over all circumstances, absence of specific

mentioning to that effect would not tie the hands of

the Tribunal in the matter of grant of compensation

towards future treatment. The said ground is also,

therefore, rejected. However, it is clarified that

interest on the compensation amount for future

treatment will start running from the date of award.

6. The final count is with respect to the grant of

interest @ 9%, which itself is on the higher side,

according to the learned counsel for the appellant.

More over, the appellant also assails the direction

to grant penal interest @ 11% per annum, unless the

award amount is deposited within a period of one

month. Learned counsel would submit that even for

receiving copy of the judgment, a period more than

one month may be required. It was also contended on

the strength of the decision in United India

Insurance Co. Ltd. v. Suvija [2018 (1) KLT 410] that

grant of penal interest is not sustainable. MACA 405/2019

7. Although this Court finds that the grant of

interest @ 9% per annum is not on the higher side,

having regard to the year in which the accident

occurred, this Court endorses the submission made by

the learned counsel for the appellant that grant of

penal interest cannot be sustained. The decision in

Suvija (supra) is squarely on the point. In the

circumstances, that direction, which provides for

payment of penal interest, is set aside.

8. In the circumstances, this appeal is allowed

and the compensation amount to be granted to the

respondent/claimant is re-worked as follows:-

Sl.   Head of claim                Amount        Total    amount
No.                                awarded    by granted      in
                                   the           appeal (Rs.)
                                   Tribunal(Rs)
1     Loss of earning                      48000           48000
2     Transportation            to         25000           25000
      hospital
3     Damage to clothing                   2000               2000
4     Extra nourishment                    5000               5000
5     Medical expenses                   360838             360838
6     Future medical expense              50000         *    50000
7     Expenses of bystander               15000              15000
8     Compensation   for   pain           75000              75000
      and suffering etc
9     Compensation          for          456960             326400
      continuing      permanent
 MACA 405/2019




      disability/loss       of                                   (8000x12x17x
      disfiguration/loss    of                                        20/100)
      earning   capacity   and
      future income
10    Compensation for loss of                       50000               50000
      amenities
      Total                               1087798        957238
                                      (rounded to
                                     10,88,000/-)
      Amount reduced       = Rs. 130,762/- (10,88,000-957238)

* Interest for this amount has to be reckoned from the date of award, i.e. 29.6.2018.

9. The Insurance Company shall pay interest for

the amounts awarded by the Tribunal at the rate

directed in the impugned award. If any amount has

already been paid, the same shall be granted set

off. The claimants shall produce the details of the

Bank account before the Insurance Company/Tribunal

within one month from the date of receipt of a

certified copy of this judgment and amount shall be

transferred to the Bank account directly through

NEFT/RTGS mode, within a period of one month

thereafter. If the Bank account is not furnished