Kerala High Court
Cholamandalam Ms General Insurance vs Anandhu Rajeev on 1 August, 2024
2024:KER:59366
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
MACA NO. 563 OF 2018
AGAINST THE ORDER/JUDGMENT DATED 10/8/2017 IN OPMV NO.1735
OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/2ND RESPONDENT:
CHOLAMANDALAM MS GENERAL INSURANCE
KOCHI NOW REPRESENTED BY ITS ASSISTANT MANAGER,
ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD,
KOCHI - 11.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENTS/PETITIONER:
ANANDHU RAJEEV
PUTHUPARMABIL HOUSE, MALLASSERRY P.O, NOW RESIDING AT
KANIKATHOTTU HOUSE, CHENGALAM P.O, KOTTAYAM DISTRICT,
PIN - 686 585.
BY ADV SRI.SERGI JOSEPH THOMAS
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 01.08.2024, ALONG WITH CO.106/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
MACA NO.563 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
CO NO. 106 OF 2021
AGAINST THE ORDER/JUDGMENT IN MACA NO.563 OF 2018 OF HIGH
COURT OF KERALA
CROSS OBJECTOR/RESPONDENT/PETITIONER:
ANANDHU RAJEEV
PUTHUPARAMBIL HOUSE, MALLASSERY.P.O, PATHANAMTHITTA
NOW RESIDING AT KANIKATHOTTU HOUSE, CHENGALAM.P.O,
KOTTAYAM DISTRICT, PIN-686585.
BY ADV SERGI JOSEPH THOMAS
RESPONDENT/APPELLANT/RESPONDENT:
MANAGER CHOLAMANDALAM M/S GENERAL INSURANCE COMPANY LTD
COCHIN-682016.
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 01.08.2024, ALONG WITH MACA.563/2018, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
[MACA No.563/2018 & CO No.106/2021]
This appeal as well as the cross objection is directed against
the award in OP(MV) No.1735 of 2013 on the file of Motor
Accidents Claims Tribunal, Kottayam. The 2nd respondent
insurer filed the appeal contending that the award amount is
excessive in nature, and the claimant filed cross objection
contending that the award amount is inadequate.
2. On 14/6/2013, while the cross objector/claimant was
riding a motorcycle through Pathanamthitta-Poonkavu public
road, he was knocked down by KL-03/V-6908 Ape Piaggio
autorickshaw driven by the 1st respondent in a rash and
negligent manner. He sustained serious injuries including
fracture of right wrist with bone exposed, central fracture
dislocation of right hip and fracture of both bones of right leg. He
was admitted and treated in hospital for 50 days in total. He was
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a 19 year old engineering student, and he lost his classes due
to the accident and so, he had to discontinue the course. He
approached the Tribunal claiming compensation of Rs.40 lakh,
and the Tribunal awarded Rs.27,96,000/-, which according to
the appellant is excessive, and inadequate according to the
cross objector/claimant.
3. The 1st respondent was the owner cum driver of the
offending autorickshaw and the 2nd respondent was its insurer.
4. The accident as well as the policy of the offending vehicle
are not under dispute. But according to the appellant, the award
amount is excessive in nature as the tribunal had taken 75% of
functional disability, though the medical board certified his
disability as 68%. Moreover, instead of 40% addition, the tribunal
had given 50% addition towards future prospects. Moreover, the
compensation awarded towards loss of academic year also is on
the higher side.
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5. On the other hand, learned counsel for the cross objector
would contend that the notional income fixed by the tribunal @
Rs.6,000/- per month was on the lower side. Since he was an
Engineering student, he was liable to get his notional income
fixed @ Rs.15,000/-.
6. Now this Court is called upon to answer whether there is
any illegality, irregularity or impropriety in the impugned award
warranting interference by this Court.
7. Regarding the notional income taken by the tribunal @
Rs.6,000/- per month, learned counsel for the cross objector
would contend that in so many decisions, this court had fixed
notional income of Rs.12,000/- for an engineering student for an
accident that took place in the year 2005 [Reliance placed on
National Insurance Co.Ltd, Chennai v. Fathimath Zuhara @
Zuhra Razak [2016 KHC 691]]. But learned counsel for the
appellant would rely on the decision Meena Pawaia and others
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v. Ashraf Ali and others [2021(6)KHC 596] wherein the apex
court was pleased to fix the income of a third year civil
engineering student @ Rs.10,000/- per month for an accident
which took place in the year 2012. In the case on hand, the
injured was a first year Engineering student aged 19, and the
accident occurred in the year 2013. So this Court is inclined to
take his monthly income notionally @ Rs.11,000/- per month.
Considering his future prospects and the reduction in income
due to the disability suffered, this court is inclined to grant 40%
addition, towards future prospects. So that his income can be
taken as Rs.15,400/- per month [11000+40%]. The multiplier
applicable is 18. Ext.X1 disability certificate issued by the
medical board shows his disability as 68%. Regarding the
disability, mentioned in Ext.X1 learned counsel for the appellant
would submit that, it is not mentioned in that certificate, that the
said disability was with respect to his whole body. So according
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to him, learned Tribunal went wrong in taking his functional
disability as 75%, and that is to be revised. Along with Ext.X1
disability certificate issued by the medical board, there is another
certificate issued by the Medical board of Govt. Medical College
hospital, Kottayam issued on 20/5/2015 which shows that the
appellant had suffered disability of only 13.90% with respect to
his whole body. But after one year the state medical board
assessed his disability as 68%, without mentioning that it was
with respect to his whole body. So the functional disability taken
as 75% by the Tribunal cannot be justified and this Court is
inclined to accept his disability based on Ext.X1 disability
certificate i.e 68%.
8. This court has fixed his monthly income for the purpose of
assessing disability compensation as Rs.15,400/-. So, for 68%
disability, he is entitled to get Rs.22,61,952/-
[15400x12x18x68/100]. After deducting Rs.14,58,000/- awarded
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by learned Tribunal, he is entitled to get the balance amount of
Rs.8,03,952/- under the head disability compensation.
9. Towards pain and suffering, learned Tribunal awarded
Rs.1 lakh. Considering the nature of injuries suffered by him and
the period of hospitalization, this court is inclined to enhance the
compensation under the head pain and suffering by Rs.25,000/-.
10. Learned counsel for the cross objector would contend
that, the cross objector lost his marriage prospects and still he is
a bachelor. No amount was awarded by the Tribunal under that
head. So, this Court is inclined to award Rs.50,000/- under that
head.
11. Towards future treatment, based on Ext.A15 certificate,
learned Tribunal awarded Rs.2,30,000/-. PW1 Doctor deposed
before the Tribunal that in case of total hip replacement, the
cross objector may need Rs.3 lakh. That certificate was issued
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in the year 2017, but so far, the hip replacement was not done,
as submitted by learned counsel. Based on Ext.A15, coupled
with the testimony of PW1 Doctor, this Court is inclined to award
Rs.70,000/- more, towards future treatment.
12. The compensation awarded under all other heads
seems to be reasonable, and hence it needs no modification.
13. The enhanced compensation awarded in this appeal is
stated in the table given below:-
Amount Amount Difference to
Head of claim be drawn as
awarded by awarded in
the Tribunal appeal enhanced
compensation
22,61,952/-
Permanent disability 14,58,000/- [15400x12x1 8,03,952/-
8x68/100]
Pain and suffering 1,00,000/- 1,25,000/- 25,000/-
Marriage prospects - 50,000/- 50,000/-
Future treatment 2,30,000/- 3,00,000/- 70,000/-
TOTAL 9,48,952/-
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14. So the cross objector is entitled to get enhanced
compensation of Rs.9,48,952/-.
15. Learned counsel for the appellant submitted that, out of
the award amount, they have already deposited Rs.20 lakh. So
they have to deposit the balance amount with interest and cost
as ordered by the tribunal along with enhanced compensation of
Rs.9,48,952/- with 8% interest per annum, from the date of
petition till the date of deposit, (excluding 476 days of delay in
filing the appeal) before the Motor Accidents Claim Tribunal,
Kottayam, within a period of two months from the date of receipt
of a copy of this judgment. Learned Tribunal shall disburse that
amount to the cross objector/claimant after deducting the
liabilities, if any, towards Tax, balance court fee and legal benefit
fund. It is clarified that the amount awarded in appeal under the
head future treatment i.e Rs.70,000/- will carry interest only
from the date of this judgment i.e 1/08/2024.
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The appeal as well as the cross objection are allowed to the
extent as above, and no order as to costs.
Sd/-
SOPHY THOMAS,
JUDGE
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