Reliance General Insurance ... vs Ambareesh
2023 Latest Caselaw 4104 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
             THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
                         MACA NO. 1850 OF 2020
   AGAINST THE AWARD IN OPMV 467/2013 OF MOTOR ACCIDENT CLAIMS
                          TRIBUNAL, THRISSUR
APPELLANT/2ND RESPONDENT:

             RELIANCE GENERAL INSURANCE COMPANY LIMITED
             PALAKKAD-678014,NOW REPRESENTED BY ITS LEGAL-CLAIMS
             MANAGER,REGIONAL OFFICE,VISHNU BUILDING,K.P.VALLON
             ROAD, KADAVANTHRA.P.O, KOCHI-682020.

             BY ADVS.
             MATHEWS JACOB (SR.)
             SRI.P.JACOB MATHEW



RESPONDENT/PETITIONER:

             AMBAREESH, AGED 27 YEARS, S/O RAVINDRAN, KALLAYIL
             HOUSE,CHAIN BAZAR,VELAPPAYA.P.O, MEDICAL COLLEGE,
             THRISSUR DISTRICT,PIN-680596.

             BY ADVS.
             SRI.A.R.NIMOD
             SRI.M.A.AUGUSTINE




     THIS     APPEAL HAVING COME UP FOR ADMISSION ON 31.03.2023,
ALONG WITH CO.45/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO.1850 of 2020 & CO NO.45 of 2021

                                     2



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
       THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
                          CO NO. 45 OF 2021
 AGAINST THE AWARD ININ OPMV 467/2013 OF MOTOR ACCIDENT
                    CLAIMS TRIBUNAL, THRISSUR
CROSS OBJECTOR/RESPONDENT:

            AMBAREESH, AGED 28 YEARS, S/O. RAVINDRAN,
            KALLAYIL HOUSE, CHAIN BAZAR, VELLAPPAYA, P.O.
            MEDICAL COLLEGE, THRISSUR DISTRICT-680 596

           BY ADVS.
           A.R.NIMOD
           SRI.M.A.AUGUSTINE



RESPONDENT/APPELLANT/2ND RESPONDENT:

            RELIANCE GENERAL INSURANCE COMPANY LIMITED
            PALAKKAD-678 014, NOW REPRESENTED BY LEGAL-
            CLAIMS MANAGER, REGIONAL OFFICE, VISHNU
            BUILDING, K.P. VALLON ROAD, KADAVANTHRA P.O,
            KOCHI-682 020

            BY ADV P.JACOB MATHEW




      THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP
FOR ADMISSION ON 31.03.2023, ALONG WITH MACA.1850/2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO.1850 of 2020 & CO NO.45 of 2021

                                     3


                                JUDGMENT

[MACA Nos.1850/2020, 45/2021]

This appeal and the Cross Objections relate to the Final

Award of the Motor Accidents Claims Tribunal, Thrissur, in

OP(MV) No.467/2013.

2. While the appeal has been filed by Reliance General

Insurance Company Limited, which insured the offending

vehicle involved in an accident that injured the Cross

Objector; the Cross Objection has been filed by the latter.

3. It is the specific case of the appellant that the

compensation awarded by the Tribunal in favour of the Cross

Objector is excessive; while, he claims to the contrary and

seeks enhancement through his Cross Objections.

4. The constitutive facts, which are admitted, are to the

effect that, when the Cross Objector was travelling pillion on

a motorcycle on 15.12.2012, it was hit by the offending

vehicle, insured by the appellant - Insurance Company, in a

rash and negligent manner. He suffered grave injuries and

has been hospitalised for 50 days as an inpatient; whereupon

he filed the aforementioned Original Petition before the MACA NO.1850 of 2020 & CO NO.45 of 2021

Tribunal, seeking compensation of an amount of

Rs.30,00,000/-, but which has been allowed only to a sum of

Rs.13,15,206/-.

5. As I have said above, the Insurance Company still

assails the Award as being excessive; while the Cross

Objector seeks enhancement.

6. I have heard Sri.Mathews Jacob - learned senior

counsel, instructed by Smt.Preethy Nair - appearing for the

Insurance Company - appellant in MACA No.1850/2020; and

Sri.A.R.Nimod, learned counsel for the Cross Objector.

7. Sri.Mathews Jacob - learned senior counsel, calls

into question the Award primarily on the ground that it has

awarded Rs.50,000/- each under the heads 'loss of

education' and 'loss of marriage prospectus' to the Cross

Objector, even though he has been adequately compensated

under the heads 'disability' and 'loss of amenities'. He

argued that once the learned Tribunal had awarded

adequate compensation for 'loss of amenities', a further

amount for 'loss of marriage prospectus' and 'loss of

education' could not have been granted. He thus prayed MACA NO.1850 of 2020 & CO NO.45 of 2021

that this appeal be allowed and the Cross Objections be

dismissed.

8. Sri.A.R.Nimod - learned counsel for the Cross

Objector, on the other hand, asserted that the compensation

awarded by the Tribunal for disability is not merely

inadequate, but extremely unjust because it has reckoned

the notional income of his client to be a mere Rs.6,000/- per

month, even though he was a student pursuing Bachelor of

Business Management (BBM); and had to discontinue the

same, consequent to the aftermath of the injuries sustained

by him. He argued that, therefore, the compensation

awarded under the head 'permanent disability' requires to

be substantially enhanced; while the amounts granted under

the heads 'bystanders expenses' and 'extra nourishment' are

too low, because they have been reckoned by the Tribunal at

the rates of Rs.250/- and Rs.200/- respectively. He thus

prayed that the Appeal be dismissed and the Cross

Objections be allowed.

9. I have considered the afore rival submissions on the

touchstone of the evidence on record - copies of which have

been handed over across the Bar by the learned counsel for MACA NO.1850 of 2020 & CO NO.45 of 2021

the parties with the express consent that it can be acted

upon by this Court without dispute.

10. On the question of the notional income of the Cross

Objector, I find great force in the submissions of

Sri.A.R.Nimod because, it is conceded that he was a student

of BBM and it is without dispute that he has been forced to

discontinue the same, since he has suffered 48% permanent

disablement. This percentile is also without dispute because

it has been so certified in Ext.A22 - Disability Certificate,

issued by PW1 doctor, whose credentials remain

unimpeached, even though he was cross examined.

11. The Cross Objector was 21 years in age at the time

of the accident; and in the case of students pursuing

technical education like Medicine and Engineering, this

Court and the Hon'ble Supreme Court have adopted

Rs.15,000/- as notional income. Since the Cross Objector

was studying for BBM, I am of the view that his notional

income can be safely adopted to be Rs.12,500/- per month.

12. That said, since the Cross Objector was only 21

years at the time of the accident and since he has endured MACA NO.1850 of 2020 & CO NO.45 of 2021

disability of 48%, I am certain that future prospects ought to

be added to his notional income. In this regard, I see that

the learned Tribunal has awarded 25%, but going by

National Insurance Company Ltd. v. Pranay Sethi [2017

(4) KLT 662 (SC)] the percentile for future prospects to be

adopted is 40%. I am guided in this regard by the judgment

of the Hon'ble Supreme Court in Syed Sadiq v. Divisional

Manager, United Insurance Co. [(2014) 2 SCC 735],

Vijay Kumar Rastogi v. Uttar Pradesh State Roadways

Transport Corporation [AIR 2018 (SC) 819], Lalan D. @

Lal v. The Oriental Insurance Company Ltd. [2020 AIR

(SC) 4508] and Satheesh E. v. New India Assurance Co.

Ltd. [Civil Appeal Nos.8059-8060 of 2022].

13. Moving on, the compensation awarded by the

learned Tribunal under the heads 'Extra Nourishment' and

'Bystanders Expenses' is also low. As rightly argued by

Sri.A.R.Nimod, it has been reckoned at the rate of Rs.200/-

and Rs.250/- per day. I propose to enhance it to Rs.250/-

and Rs.350/- per day.

14. Now coming to the arguments of the learned Senior

Counsel, as I have indited above, he contends that the MACA NO.1850 of 2020 & CO NO.45 of 2021

amounts of Rs.50,000/- each awarded under the heads ''loss

of education' and 'loss of marriage prospectus' could not

have been granted, once 'compensation for loss of amenities'

had been offered. He also asserts that an additional amount

of Rs.50,000/- towards 'personal assistants' is not justified

because, the percentile of disability suffered by the Cross

Objector is only 48%.

15. In this regard, I notice that the compensation

awarded by the Tribunal for 'loss of amenities' is Rs.60,000/-

only. The medical evidence establishes that, consequent to

the accident, the Cross Objector had suffered "fracture left

temporal bone, fracture left middle cranial fossa floor, brain

stem contusion, blunt injury chest and abdomen with

hemoperitoneum and splenic laceration injury, fracture of

tooth etc. (sic)".

16. These injuries are extremely grave and require

large amount of time for union of fractures and conclusion of

treatment.

17. Further, Ext.A22 - Disability Certificate records the

Cross Objector's Spinomotor disability as under: MACA NO.1850 of 2020 & CO NO.45 of 2021

"He has gross appendicular ataxia with motor weakness of all four limbs (quadriparesis). His upper limb motor power is grade 4 - for shoulder and elbow movements with 50% reduced power of hand grip bilaterally. He is not able to perform fine or gross motor activities using the upper limbs. He cannot use his upper limb's power for getting up from the sitting or lying down position, without support.

His lower limb power is grade 4 - at the hip and knee and grade 4 at the ankle and foot. He cannot walk by himself and needs support of a second person for getting up and ambulating. He can stand only with the support of a frame and not by himself. He cannot run, climb stairs or slope up or down.

He cannot perform the activities of daily living without a helper or a nurse due to his motor weakness and instability."

18. The afore is in addition to other disabilities,

including quadriparesis, restricted eye movements and

impaired speech.

19. Viewed from the afore angle, the compensation

awarded by the Tribunal under the head 'loss of amenities'

certainly is extremely low; and therefore, the award of

further compensation under two of the heads, namely 'loss of

marriage prospectus' and 'loss of education' can never be

found to be incorrect, even though, technically, an amount

of Rs.50,000/- could not have been granted under the head

'personal assistants'. I have no doubt that the said figure

ought to have been added towards 'loss of amenities'. In MACA NO.1850 of 2020 & CO NO.45 of 2021

such scenario, I do not think that this Court is required to

disturb any other findings of the learned Tribunal.

In the afore circumstances, this Appeal and Cross

Objections are disposed of in the following manner:

(a) The compensation under the head 'permanent

disability' is enhanced to Rs.18,14,400/-, from Rs.7,34,400/-

now awarded, reckoning the notional income of the Cross

Objector to be Rs.12,500/-, with 40% future prospects added

to it and his percentile of disability maintained as 48%, as

certified in Ext.A22. The multiplier adopted for this purpose

is '18', as per Sarla Verma v. Delhi Transport

Corporation [2010 (2) KLT 802 (SC)], modifying the figure

of '17', as adopted by the Tribunal.

(b) The compensation under the head 'Extra

Nourishment' is enhanced to Rs.12,500/-, reckoning the per

day expenses for the same to be Rs.250/-, for 50 days of

hospitalisation.

(c) The compensation under the head 'Bystanders

Expenses' is enhanced to Rs.17,500/-, from Rs.12,500/-

reckoning the per day expenses for the same to be Rs.350/-, MACA NO.1850 of 2020 & CO NO.45 of 2021

for 50 days of hospitalisation.

(d) In all other respects, the Award of the Tribunal will

stand in tact.

(e) Consequently, the Cross Objector will be at full

liberty to recover the compensation, as enhanced by this

Court, from the Insurance Company, along with interest at

the rate of 7.5%, (reducing it from 8% granted by the

Tribunal, in view of the escalation granted by this Court),

from the date of claim until it is recovered. He will also be

entitled to proportionate costs on the enhanced amount as

ordered by the Tribunal.

(f) In view of the afore, the amount as fixed above shall

be deposited by the Insurance Company before the learned

Tribunal, within a period of two months from the date of

receipt of a copy of this judgment.

Sd/- DEVAN RAMACHANDRAN JUDGE stu