IFFCO Tokio General Insurance Company Limited v. Sabu M. Varghese

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 ``` ``` MACA NO. 1733 OF 2013 ``` ``` AGAINST THE AWARD DATED 16.05.2013 IN OP(MV) NO.1773 OF 2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM ``` ## `APPELLANT/2ND RESPONDENT:` ``` IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED, GOA NOW REPRESENTED BY ITS MANAGER-LEGAL, 'SATGAMAYA', M.G.ROAD, KOCHI-602011. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## `RESPONDENT/PETITIONER:` ``` SABU M.VARGHESE @ SABU, S/O.VARGHESE, MADAVAN HOUSE, KOTHAVARA P.O., VAIKOM, NOW RESIDING KATTITHARA HOUSE, TRIVENI LANE, INDIRA ROAD, PALARIVATTOM, KOCHI-682025. ``` ``` BY ADV. SRI.ANTONY THARIAN ``` ``` THIS APPEAL HAVING BEEN FINALLY HEARD ON 04.03.2024, ALONG WITH CROSS OBJECTION 60/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:2:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 ``` ``` CO NO. 60 OF 2019 ``` ``` AGAINST THE AWARD DATED 16.05.2013 IN O.P.(MV)NO.1773/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ``` ``` CROSS OBJECTOR/RESPONDENT: ``` ``` SABU M. VARGHESE @ SABU, AGED 47 YEARS, S/O. VARGHESE, MADAVAN HOUSE, KOTHAVARA P.O, VAIKOM, NOW RESIDING AT KAATTITHARA HOUSE, THRIVENI LANE, INDIRA ROAD, PALARIVATTOM, KOCHIN-682 025 ``` ``` BY ADV.SRI. ANTONY THARIAN ``` ``` RESPONDENT/APPELLANT: ``` ``` IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS MANAGER-LEGAL, ‘SATGAMAYA’, M.G. ROAD, ERNAKULAM, KOCHI-682 011 ``` ``` THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 04.03.2024, ALONG WITH MACA NO.1733/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:3:- ## **JUDGMENT** Dated this the 4[th] day of March, 2024 The appeal and the Cross Objection on hand have been originated from OP(MV) No.1773/2011, which is one among the five Original Petitions where a common award was passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 16.05.2013. 2. The appeal is filed by the insurer, who was arrayed as the 2[nd] respondent in the Original Petition before the Tribunal and the cross objection is filed by the petitioner. 3. It is contended by Sri.Mathews Jacob, the learned Senior Counsel representing the insurer that the Tribunal while awarding `1,15,500/- towards treatment expenses failed to take into account that the petitioner had already received `96,217/- by way of mediclaim. According to him by failing to adjust the sum already paid to the petitioner MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:4:- under the mediclaim policy, the Tribunal committed a grave error. 4. The learned counsel for the petitioner contended on the contrary that the petitioner suffered permanent disability due to the serious injuries sustained by him in the motor accident. According to him a certificate assessing the disability of the petitioner was not marked in evidence. Only after filing the appeal he has preferred an application and pursuant to an order issued in that regard, he appeared before the Medical Board, constituted by Superintendent of General Hospital, Ernakulam but for the reason that a Thoracic Surgeon and a Gastroenterologist (surgical) were not available as members of the Medical Board to assess the kind of disability the petitioner was having, he appeared before this Court again for getting a direction to examine him by a Medical Board consisting of members having expertise in Thoracic Surgery and Gastroenterology MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:5:- (surgical). Thus, direction was issued to the Superintendent of Medical College Hospital, Kottayam to constitute a Medical Board with members aforestated and to examine the petitioner. Accordingly, petitioner appeared before the Medical Board and obtained a certificate of disability. The learned counsel seeks for grant of a modified compensation on the basis of that. The learned counsel has also pointed out that the Tribunal failed to award just and reasonable compensation towards pain and sufferings and discomforts and inconveniences. The learned counsel contended furthermore that the Tribunal failed to compensate the petitioner for his loss of earning power. It was contended that despite production of various documents wherefrom the occupation and monthly income earned by the petitioner could be established, the Tribunal opted to fix the monthly income only on a notional basis. The learned counsel invited the attention of this Court to the proof affidavit filed in the MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:6:- case by the petitioner before the Tribunal and contended that the document sought to be marked there as Ext.A28 is nothing but a document disclosing the tax deducted at source from the income of the petitioner. According to him that document was not considered by the Tribunal. According to him Exts.A19 and A20 produced by the petitioner with a view to establish his occupation and monthly income at the relevant time of the motor accident were discarded by the Tribunal for want of cogent reasons. Therefore, the learned counsel canvassed that a re-fixation of the monthly income on the basis of Exts.A19 and A20 is warranted, in the interest of justice. 5. In the backdrop of the rival arguments advanced by the learned Senior Counsel for the insurer and the learned counsel for the petitioner, this Court finds it relevant to have a discussion on the facts of the case as well as the MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:7:- injuries sustained and the treatment availed by the petitioner. 6. The motor accident in the case on hand was occurred on 17.04.2011. Petitioner was travelling as a passenger in an Innova car bearing Registration No.GA-8E9374 which was driven by it’s insured himself. The car was driven in a rash and negligent manner and thus it dashed against a road divider and in the impact, petitioner as well as other passengers travelling in it sustained serious injuries. He was rushed to Ernakulam Medical Centre, Palarivattom and availed treatment therefrom. The injuries sustained were established from the accident register cum wound certificate issued from the hospital and marked in evidence as Ext.A12. Those are:- (i) Abrasion (Lt.) elbow and (Lt.) knee. (ii) Fracture 6[th] and 7[th] ribs on the right side. (iii) Minimal pleural effusion. MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:8:- ## (iv) Contusion right lobe of liver. ## (v) Moderate haemoperitoneum. Petitioner had also suffered severe pain due to violent shock on his backbone. As disclosed from Ext.A12, petitioner was not treated by any surgical procedures but only by medication. His treatment as inpatient also continued for 17 days. 7. Raising an allegation that the motor accident was occurred due to the rash and negligent driving of the Innova car by its driver and claiming a sum of `6,50,000/- as compensation, the Original Petition was filed before the Tribunal. 8. The driver-cum-owner and the insurer of the Innova car were arrayed respectively as respondents 1 and 2 in the Original Petition. 1[st] respondent upon service of notice on him appeared and filed a written statement. 2[nd] respondent also filed written statement admitting issuance of a policy MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:9:- for the Innova car. The claim of the petitioner for compensation was disputed by the 2[nd] respondent for exorbitance. 9. Before the Tribunal, evidence was adduced in common in the Original Petition on hand and some other petitions filed by fellow passengers of the petitioner in the Innova car who also sustained injuries in the very same motor accident. 10. The Tribunal after appreciating the evidence found that the motor accident in question was occurred due to the rash and negligent driving of the Innova car bearing Registration No.GA-08E-9374 by the 1[st] respondent. The Tribunal also found that the petitioner who had sustained injuries in the motor accident was entitled to get compensation. Accordingly a sum of `1,69,900/- was arrived at as the compensation payable in his favour. 2[nd] respondent was directed to pay the above sum with interest MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:10:- at the rate of 8% per annum, from the date of filing of the Original Petition till the date of realisation. Proportionate costs was also ordered. Challenge was raised by both sides against the quantum stood awarded by the Tribunal. The contentions raised are already dealt with. 11. The prime contention raised by the learned counsel for the appellant was against grant of the full amount as per Exts. A22 series of medical bills. It is found from Ext.A22 series that, a sum of `1,15,468/- was spent towards treatment. It is revealed from Exts.A24 and 25 which are claim settlement vouchers issued by the insurer in favour of the petitioner that a sum of `96,217/- was granted by the insurer to the petitioner while settling the mediclaim policy. 12. The contention of the learned senior counsel was that the petitioner is not entitled to get compensation for treatment expenses again when his mediclaim was allowed MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:11:- and a sum of `96,217/- was paid to him on the basis of the medical bills produced there. The learned senior counsel has also relied on **National Insurance Company Ltd. V. Akber Badsha [2015 (4) KLT 442]** to fortify his contention. The learned counsel for the cross objector contended on the contrary that the Motor Vehicles Act, being a beneficial legislation, this Court shall not interfere with the grant of compensation stood awarded towards treatment expenses. 13. It is noticed that **National Insurance Company Ltd. v. V.S.Bijumon and Others [2011 (1) KHC 776]** was relied on by the Tribunal while awarding `1,15,500/- as compensation towards treatment expenses. The Tribunal while relying on the dictum failed to take note of the factum that the dictum in **V.S.Bijumon** supra was overruled by a Division Bench of this Court in **Akber Badsha** supra. The Division Bench held in that case, MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:12:- “12. We are in full agreement with the views expressed by the Division Bench of the Karnataka High Court, and hold that the very purpose of insurance is to see that unanticipated risk is covered to the extent necessary, lest there should be any loss to the party concerned because of the unforeseen contingency which occurred during the policy period. As it stands so, if a party sustains damage in respect of a vehicle or was made to spend a certain amount for availing treatment in connection with the injuries and if the said amount is satisfied by the insurer under a separate policy issued in this regard (of course based on premium collected separately for the sum assured) the same is liable to be reckoned for fixing the quantum of compensation payable under the MV Act and if only a finding is rendered that loss is still there, could it be compensated to the requisite extent. To put it more clear, if the party has obtained only a lesser amount under the ‘Mediclaim policy’ taken by him (paying premium separately), the balance amount, if any, could very well be claimed in the claim petition to be preferred before the Tribunal with reference to the statutory coverage.” 14. Therefore this Court finds that the Tribunal by relying on a dictum which was no longer holding the field due to overruling of it by a Division Bench, is undoubtedly MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:13:- erred and unjustified in awarding the entire sum covered by the Medical Bills towards treatment expenses. 15. It is found that the petitioner has produced Ext.A22 series of medical bills which would reveal his expenditure towards treatment as `1,15,468/- but under the mediclaim policy, the insurer has paid only `96,217/against the claim raised for `1,15,500/-. As per the dictum in **Akber Badsha** supra, the petitioner is entitled to get only `19,283/- which is the balance amount due as per Ext.A22 series. It is found from the impugned award that `1,15,500/- itself was awarded by the Tribunal. Thus the Tribunal committed a mistake by awarding so. The Tribunal ought to have awarded only `19,283/- towards treatment expenses. Therefore, `96,217/- awarded by the Tribunal is liable to be deducted and this Court do so. 16. As already stated, the petitioner has raised a contention that the monthly income has been fixed by the MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:14:- Tribunal notionally ignoring Exts.A19 and A20. Though a contention was raised by the learned counsel that documents evidencing the deduction of tax at source was also marked in evidence, such a document could not be traced out despite thorough search in the trial court records called for. Exts. A19 and A20 have been discarded by the Tribunal from consideration for the reason of nonexamination of the employer of the petitioner who was responsible for issuance of those. True that the payslip is produced by the petitioner, but there is nothing on record to indicate the nature of the leave availed by the petitioner for the purpose of treatment following the motor accident. Therefore this Court finds justification for the Tribunal in fixing the monthly income notionally. Monthly income fixed by the Tribunal notionally appears to this Court reasonable and therefore is not interfered with. Injuries sustained by the petitioner include abrasions, contusions as well as MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:15:- fracture of 6[th] and 7[th] ribs. He was also treated as inpatient for 17 days by medication alone. Materials are not made available to establish that the petitioner had follow ups in the hospital after getting discharged therefrom and that he has been advised follow ups. No materials are produced afresh in the appeal on hand also to establish those aspects. In the above circumstances, the claim of the petitioner for future treatment expenses is only to be discarded as untenable and this Court do so. 17. Petitioner has also raised a claim for grant of compensation towards loss of earning power. This Court has already sent the petitioner to a Medical Board, Medical College Hospital, Kottayam for examination by doctors having expertise in various branches. After examination the Medical Board has forwarded a certificate to this Court and that is appended to the appeal memorandum. The Medical Board has reported the disability of the petitioner as ‘Nil’. In MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:16:- that context, the claim of the petitioner for compensation for loss of earning power is only to be discarded and this Court do so. 18. The petitioner has also raised a claim that though he had suffered fractures of two ribs, the Tribunal failed to award reasonable compensation towards loss of earning. The Tribunal has granted compensation for loss of earning by taking two months as the period of treatment. This Court is inclined to consider a period of three months and therefore, the petitioner will get `10,000/- more as compensation under that head. The argument advanced by the learned counsel that the Tribunal has awarded only inadequate sum as compensation towards pain and sufferings and discomforts and inconveniences is found to have some basis and this Court is inclined to grant `10,000/- more towards pain and sufferings and `24,000/more towards discomforts and inconveniences. The rate of MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:17:- interest fixed by the Tribunal being 8% is also modified to 7.5%. 19. In the revised calculation as above, the petitioner will get `1,17,683/- (`30,000/- + `2,000/- + `19,283/- + `2,000/- + `1,000/- + `3,400/- + `30,000/- + `30,000/-) (Rupees one lakh seventeen thousand six hundred and eighty three only) as the modified compensation. The said amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 2[nd] respondent shall deposit the above sum with interest and proportionate costs in favour of the petitioner within a period of two months from the date on which a certified copy of this judgment is received in accordance with the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. It is submitted by the learned counsel for the petitioner that not even a single penny has been paid to the petitioner MACA No. 1733 of 2013 & Cross Objection No.60 of 2019 -:18:- till date and a direction is required to be issued for deposit of the modified compensation at the earliest. 2[nd] respondent shall take every steps to see that the entire sum now awarded in favour of the petitioner with interest accrued on it at the rate modified and proportionate costs be deposited within the time granted by this judgment itself. Sd/- **MARY JOSEPH JUDGE** MJL