MACA No. 3544/2021 (C.O. No. 36/2022)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944 ``` ## `MACA NO. 3544 OF 2021` ``` [AGAINST THE AWARD DATED 02.08.2021 IN OP(MV)NO.705/2017 ON THE FILE OF THE I ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL/I ADDL. ``` ``` DISTRICT JUDGE, KOZHIKODE] ``` ## `APPELLANT/2ND RESPONDENT:` ``` M/S SHRIRAM GENERAL INSURANCE COMPANY LTD. 41/339 AZAD TOWER, AMMAN KOVIL CROSS ROAD, KOCHI, PIN-682018, REPRESENTED BY ITS ASST. MANAGER. ``` ``` BY ADV JOHN JOSEPH VETTIKAD ``` ## `RESPONDENTS/PETITIONERS:` ``` 1ABDUL LATHEEF, AGED ABOUT 46 YEARS, S/O.ABDURAHIMAN, FALIL MANZIL, POONUR ESTATE, THAMARASSERY P.O., KIDAVOOR AMSOM, KOZHIKODE, PIN-673 573. ``` ``` 2BASHEER, AGED ABOUT 45 YEARS, S/O. AMMED, KOCHA HOUSE, PUTHUSSERI KADAVU, KUPPADITHARA, PADINJARETHARA P.O., WAYANAD, PIN-673575. ``` ``` BY ADVS.AVM.SALAHUDIN A.D.DIVYA ``` ``` THIS MACA HAVING COME UP FOR ADMISSION ON 22.02.2023, ALONG WITH CO.36/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.3544/2021, C.O.No.36/2022 ``` ``` -2- ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, ``` ## `1944` ## `CO NO. 36 OF 2022` ``` [AGAINST THE AWARD DATED 02.08.2021 IN OP(MV)NO.705/2017 ON THE FILE OF THE I ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL/I ADDL.DISTRICT JUDGE, KOZHIKODE] ``` ## `CROSS OBJECTOR/ 1ST RESPONDENT/CLAIMANT IN OPMV:` ``` ABDUL LATHEEF, AGED 46 YEARS, S/O ABDURAHIMAN, FALIL MANZIL, POONUR ESTATE, THAMARASSERY P.O., KIDAVOOR AMSOM, KOZHIKODE-673 573. ``` ``` BY ADVS.AVM.SALAHUDIN A.D.DIVYA ``` ## `RESPONDENTS/APPELLANT & 2ND RESPONDENT/RESPONDENTS IN` ## `OPMV:` - `1 SREERAM GENERAL INSURANCE CO. LTD., 41/339 AZAD TOWER, AMMAN KOVIL CROSS ROAD, KOCHI-682 018, REPRESENTED BY ITS ASST. MANAGER.` - `2 BASHEER, S/O. AMMED, KOCHA HOUSE, PUTHUSSERY KADAVU, KUPPADITHARA, PADINJARETHARA P.O., WAYANAD-673 575.` ## `BY ADV JOHN JOSEPH VETTIKAD` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2023, ALONG WITH MACA.3544/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.3544/2021, C.O.No.36/2022 ``` ``` -3- ``` ## `JUDGMENT` ``` [MACA No.3544/2021, C.O.No.36/2022] ``` ``` Among the afore two cases, MACA 3544/2021 has been filed by ‘Shriram General Insurance Company Ltd.’, impugning the Award of the Motor AccidentsClaimsTribunal,Kozhikode (hereinafter referred to as ‘the Tribunal’ for ``` ``` short), in OP(MV) No.705/2017, which was filed by the Cross Objector, on the ground that the ``` ``` compensation awarded by it under two heads – ``` ``` namely, compensation for‘Pain and Suffering’ ``` ``` and‘Loss of Earnings’ – are excessive and ``` ``` improper. ``` ``` 2.While so, the Cross Objector – the ``` ``` claimant in the aforesaid Original Petition – who was grievously injured in a road accident which occurred on 14.09.2016, while he was riding pillion on a motor cycle, being hit by the offending pick-up van driven by the 1[st] ``` ``` MACA No.3544/2021, C.O.No.36/2022 ``` ``` -4- ``` ``` respondent, asserts that the Award is inadequate and liable to be enhanced by this Court. ``` ``` 3.I have heard Sri.John Joseph Vettikad – ``` ``` learned counsel appearing for the appellant - Insurance Company and Smt.Divya A.D. - learned ``` ``` counsel appearing for the Cross Objector. ``` ``` 4.I have also gone through theevidence ``` ``` produced on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express ``` ``` consent that it can be acted upon by this Court without dispute. ``` ``` 5.Sri.John Joseph Vettikad submitted that ``` ``` the compensation awarded by the Tribunal to the Cross Objector under the head “Pain and ``` ``` Suffering” is excessive; while no compensation ``` ``` under the head “Partial Loss of Earning” should have been granted, when sums under the head “Loss of Earning” from 15.09.2015 to 15.03.2016 ``` ``` MACA No.3544/2021, C.O.No.36/2022 ``` **==> picture [22 x 8] intentionally omitted <==** ``` had already been awarded. He thus prayed that MACA No.3544/2021 be allowed. ``` ``` 6.In response and per contra, Smt.Divya ``` ``` A.D. - learned counsel for the Cross Objector, ``` ``` submitted that, though the Tribunal had correctly assessed the notional income of her client to be Rs.10,500/-, as per the dictum of ``` ``` the Hon’ble Supreme Court in Ramachandrappa v. ``` ``` Manager, Royal Sundaram Alliance Insurance ``` ``` Company Ltd. [(2011) 13 SCC 236], it failed in ``` ``` adding future prospects, particularly because, as per Ext.X1 - Disability Certificate, he had suffered 85% functional disability. She added ``` ``` that the Tribunal erred in reducing this and ``` ``` reckoning it to be 50% for “whole body ``` ``` disability”; and thus prayed that the impugned Award be appropriately enhanced. ``` ``` 7.The afore narrative of the facts and ``` ``` contentions of the parties render it indubitable ``` ## `MACA No.3544/2021, C.O.No.36/2022` **==> picture [22 x 9] intentionally omitted <==** ``` that, what is under main challenge is the sweep ``` ``` of the injuries and the percentage of ``` ``` disability suffered by the Cross Objector. The ``` ``` medical evidence on record, particularly Ext.X1 ``` - `Disability Certificate and Ext.A2 - Wound` ``` Certificate show that the Cross Objector ``` ``` suffered the following injuries: ``` - `“(1) Inter trocantra right femur` - `(2) Fracture shaft of femur` - `(3) Fracture right patella` - `(4) Fracture on right tibia` - `(5) Fracture on distal phalanx right toe` - `(6) Fracture on second and fifth toe` ``` right open type-II.” ``` `8. The Cross Objector was aged only 42` ``` years at the time of the accident and the Tribunal itself has recorded that he had ``` ``` appeared before it, with the aid of crutches and ``` ## `MACA No.3544/2021, C.O.No.36/2022` ``` -7- ``` ``` with the assistance of a person, even when he took to the witness box. However, it then went on to say that, since the Cross Objector had been able to come to the Court - which is on the ``` ``` 1[st] floor of a building, without a lift - it is to be assumed that he was able to climb steps, albeit with the aid of a person or walking assistance. On such reasoning, it went on to reduce the disability to 50%, holding it to be the “whole body disability”, though it noticed that PW2 – doctor, who was part of the Medical ``` ``` Board which issued Ext.X1, deposed vehemently ``` ``` that 85% ought to be reckoned as his functional disability. ``` ``` 9.There can be no doubt, going by the medical evidence on record, that the injuries ``` ``` sustained by the Cross Objector were extremely grave and that the aftermath of it has led him to be under great trauma and stress. In spite of ``` ## `MACA No.3544/2021, C.O.No.36/2022` **==> picture [22 x 9] intentionally omitted <==** ``` this, the learned Tribunal concluded, based on the afore circumstances, that “he could carry on some other lessor scale of activities and functions so that he can continue to earn his livelihood.” (sic). ``` ``` 10.The afore observations of the Tribunal ``` ``` are certainly conjectural because, when the Cross Objector has been found to be unable to walk without aid and when it itself records that he cannot now engage himself in any work which requires physical labour, the observation that he can do a “lesser scale activity” cannot justify its conclusion to reduce the percentile of disability to a mere 50%. When the competent doctor as PW2 and Ext.X1 - Disability Certificate issued by a Medical Board, certify his functional disability to be 85%, certainly, the Tribunal could have revised it only to a slightly lesser extent, taking note of the ``` ## `MACA No.3544/2021, C.O.No.36/2022` ``` -9- ``` ``` physical condition of the Cross Objector, but not to the level which it has now done. ``` ``` 11.Taking note of thetotality of the ``` ``` circumstances and the medical evidence on ``` ``` record, I propose that the whole body disability ``` ``` of the Cross Objector be taken as 75%. Obviously, when the Cross Objector suffers from ``` ``` such a high degree of disability, future prospects also ought to be added to his income; and taking note of the fact that he was aged 42 years at the time of the accident, 25% will ``` ``` have to be adopted. ``` ``` 12.That being said, the amount awarded by ``` ``` the Tribunal, under the head compensation for “Pain and Suffering”, appears to be excessive, because it has granted Rs.4,00,000/- and I am of the view that an amount of Rs.2,00,000/- would have been sufficient. ``` ``` 13.Similarly, as rightly argued by Sri.John ``` ``` MACA No.3544/2021, C.O.No.36/2022 ``` **==> picture [30 x 9] intentionally omitted <==** ``` Joseph Vettikad, the Tribunal has already offered compensation to the Cross Objector for ``` ``` “Loss of Earning”from 15.09.2015 to 15.03.2016. ``` ``` Resultantly and for the reasons above, I dispose of the afore Appeal and Cross Objection in the following manner: ``` ``` (a)The compensation under the head “PermanentDisability”isenhancedto ``` ``` Rs.16,53,750/- (Rupees sixteen lakhs fifty three thousand seven hundred and fifty only), instead of Rs.8,82,000/-, reckoning the notional income ``` ``` of the Cross Objector to be Rs.10,500/-, then adding 25% future prospects to it and adopting 75% as his permanent disability. ``` ``` (b)The compensation awarded by the Tribunal under the head “Pain and Suffering” is reduced to Rs.2,00,000/- (Rupees two lakhs only). ``` ``` (c)In all other heads, the compensation ``` ``` granted by the Tribunal will remain intact. ``` ``` MACA No.3544/2021, C.O.No.36/2022 ``` **==> picture [30 x 8] intentionally omitted <==** ``` Needless to say, the Cross Objector will be ``` ``` at full liberty to recover the compensation, as afore modified by this Court, from the Insurance ``` ``` Company, along with interest at the rate of ``` ``` 7.5%, as awarded by the Tribunal, 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. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` akv ```