MACA No. 1850 of 2020 & CO No. 45 of 2021, Reliance General Insurance Company Limited v. Ambareesh

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 31[ST] 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 31[ST] 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 LEGALCLAIMS 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 **==> picture [7 x 7] intentionally omitted <==** 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 **==> picture [7 x 7] intentionally omitted <==** 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 **==> picture [7 x 7] intentionally omitted <==** 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 **==> picture [7 x 7] intentionally omitted <==** 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 **==> picture [7 x 7] intentionally omitted <==** 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 9 “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 **==> picture [13 x 7] intentionally omitted <==** 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 11 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