MACA Nos.616/2016 & 520/2016 (OPMV 1036/2011) - High Court of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945 ``` ## **`MACA NO. 616 OF 2016`** ``` OPMV 1036/2011 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS ``` ``` TRIBUNAL- IV, PATHANAMTHITTA ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` THE ORIENTAL INSURANCE CO.LTD PUNALUR, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18. BY ADVS. SRI.GEORGE CHERIAN (SR.) SRI.ALEXY AUGUSTINE SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ## **`RESPONDENTS/CLAIMANT & 6TH RESPONDENT:`** ``` 1CHANDRAN PILLAI S/O. NARAYANA PILAI, PADMA VILASAM, PADUKOTTACKAL, THATTAYIL P.O., PANDALAM - 691 525. 2THE BRANCH MANAGER NEW INDIA ASSURANCE CO.LTD, COLLEGE ROAD, PATHANAMTHITTA - 689 645. BY ADV SRI.A.N.SANTHOSH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.09.2023, ALONG WITH MACA.520/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.616/2016 & 520/2016 : 2 : # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945 MACA NO. 520 OF 2016 ``` ``` OPMV 1036/2011 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS ``` ``` TRIBUNAL- IV, PATHANAMTHITTA ``` ## **`APPELLANT/6TH RESPONDENT:`** ``` THE NEW INDIA ASSURANCE COMPANY LIMITED PATHANAMTHITTA, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS/PETITIONER & 3RD RESPONDENT:`** ``` 1CHANDRAN PILLAI S/O.NARAYANA PILLAI, PADMA VILASAM, PADUKOTTACKAL, THATTAYIL.P.O., PANDALAM, PIN- 691 525. 2THE ORIENTAL INSURANCE COMPANY LIMITED P.B.NO.17, POST OFFICE JUNCTION, PUNALUR. PIN- 690 318. BY ADVS. SRI.A.N.SANTHOSH SRI.GEORGE CHERIAN (SR.) SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.09.2023, ALONG WITH MACA.616/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.616/2016 & 520/2016 : 3 : ## JUDGMENT These appeals were filed by the 3[rd] and 6[th] respondents in OP(MV) No.1036/2011 on the files of the Additional Motor Accidents Claims Tribunal-IV, Pathanamthitta. These appellants are the insurers of the two vehicles involved in the accident. 2. M.A.C.A. No.520/2016 is submitted by the 6[th] respondent insurance company, whereas M.A.C.A. No.616/2016 is submitted by the 3[rd] respondent insurance company. The claim petition was submitted by the 1[st] respondent in both these appeals seeking compensation for the injuries sustained to him in a motor accident that occurred on 04.08.2011. According to him, the accident happened when the scooter ridden by him was hit by a car bearing registration No.KL-26-A-8824 driven by the 1[st] respondent in the claim petition in a rash and negligent manner. It was pointed out that the car abruptly stopped in front of the scooter, and the 1[st] respondent in the claim petition opened the right front door thereof, the scooter hit on the door of the car, and M.A.C.A. Nos.616/2016 & 520/2016 : 4 : the petitioner was thrown away to the road. At that time, the lorry driven by the 4[th] respondent bearing registration No.KL-31-5452 ran over the petitioner’s leg, causing severe injuries. The car was insured with the appellant in M.A.C.A. No.616/2016, and the lorry was insured with the appellant in M.A.C.A. No.520/2016. 3. The claim petition was submitted by the 1[st] respondent seeking compensation of `29,74,000/- and was limited to `4 lakhs. The 3[rd] and 6[th] respondents in the claim petition alone contested the matter. Both of them admitted the coverage of policy in respect of the said vehicles but disputed the negligence and the quantum of compensation as well. 4. The evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A18 from the side of the 1[st] respondent. From the side of the appellants, no evidence was adduced. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligent driving of both the drivers and the liability to pay the compensation was apportioned among the 3[rd] and 6[th] respondents in equal proportions. The quantum of compensation was fixed as `26,95,915/-, and the appellants were directed to deposit the said amount in equal M.A.C.A. Nos.616/2016 & 520/2016 : 5 : proportion along with interest @ 9% per annum from the date of petition till realisation with proportionate costs. These appeals are submitted in such circumstances challenging the quantum of compensation fixed by the tribunal by both the above insurance companies. 5. Heard Sri. Mathews Jacob, the learned counsel appearing for the appellant in M.A.C.A. No.520/2016, Sri. George A Cherian, the learned counsel appearing for the appellant in M.A.C.A. No.616/2016 and Sri. A.N. Santhosh, the learned counsel appearing for the 1[st] respondent/claimant. 6. The learned counsel for the appellant in M.A.C.A. No.520/2016 contends that the amount awarded by the tribunal is on the higher side due to various reasons. It was mainly contended that, even though the percentage of disability of the appellant was certified as 60%, the tribunal considered the functional disability as 100%, which was not all warranted. It is also contended that towards the future prospects, 15% of the monthly income has been added, whereas going by the principles laid down in National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662], it is 10%. The further contention of the M.A.C.A. Nos.616/2016 & 520/2016 : 6 : learned senior counsel is that, even after granting an amount of `3 lakhs towards the loss of amenities of life, a further sum of `2 lakhs was granted towards loss of enjoyment in life, and this should not have been awarded. 7. The learned counsel appearing for the appellant in M.A.C.A. No.616/2016 contends that, even after granting compensation for 100% disability, the tribunal awarded compensation under the head of loss of earning, for a period of 29 months, which was not at all warranted. It was pointed out that the compensation for permanent disability is granted by taking the percentage thereof as 100%, which will take in the entire period. Therefore, a separate compensation cannot be awarded for loss of earnings. 8. It was pointed out by the learned counsel for the respondent that, consequent to the injuries, his leg was amputated above the knee. Since he was a driver by profession, he was prevented from continuing his employment, and therefore 100% disability has to be taken. In addition to the same, it was also pointed out that the tribunal did not grant any compensation M.A.C.A. Nos.616/2016 & 520/2016 : 7 : for future treatment. The learned counsel also produced Exts.A1 to A6 records to show that he had to install an artificial limb and incurred expenses for the same. It was also contended that the artificial limb requires periodical maintenance, and he is incurring expenses for the same. Therefore, he is seeking an additional amount under the head of the future treatment, which was not granted by the tribunal. It was also pointed out by him that he can sustain his claim for future prospects even in the absence of any appeal from him as per the well-settled position of law in this regard, Reliance was also placed in Surekha and others v. Santhosh and others [2020 ACJ 2156] 9. I have carefully gone through the records and considered the rival contentions. As regards the percentage of physical disability is concerned, the tribunal concluded that this is a case in which the functional disability of 100% has to be taken, taking note of the fact that, being a heavy vehicle driver, the appellant is unable to pursue the avocation as he suffered the amputation of his leg above the knee. In fact, the aforesaid aspect is well settled in the light of the decisions which were relied on by the tribunal, namely K. Janardhan v. United India M.A.C.A. Nos.616/2016 & 520/2016 : 8 : Insurance Co. Ltd. and others [2008 ACJ 2039] wherein taking note of the occupation of the victim, the functional disability was taken as 100%. In the light of the well settled position of law, I am of the view that no interference is warranted, as evidently, he suffered amputation above the knee, and he is prevented forever from continuing his employment as a heavy vehicle driver. 10. When coming to the question of the addition to be made towards future prospects, I find some force in the contentions put forward by the learned counsel for the appellant in this regard. The tribunal made an addition of 15%, but going through the principles laid down by the Hon’ble Supreme Court in Pranay Sethi, the addition should have been only 10% as the 1[st] respondent was aged 53 at the time of the accident. Therefore, the compensation has to be revised on the basis of the same. Thus, the actual compensation with the above criteria would come to `13,06,800/- [(9000 + 10%) x 12 x 11]. This would result in a deduction of `59,400/- ( 1306800 – 1366200). 11. As regards the contention put forward by the learned senior counsel with respect to the amount `2 lakhs awarded under the head of loss of enjoyment of life, also I find some force. M.A.C.A. Nos.616/2016 & 520/2016 : 9 : This is particularly because the tribunal has already granted an amount of `3 lakhs towards the loss of amenities of life and attendant charges, and again, a further sum of `2 lakhs is granted for the loss of enjoyment of life. Therefore, I am of the view that an additional amount of `2 lakhs can be deleted. However, while considering these contentions, the crucial aspect to be noted is that, as rightly pointed out by the learned counsel for the respondent/claimant, the respondent had suffered amputation below the knee, and he had to depend upon artificial limb to move on in life. The expenses incurred for installing artificial limbs are established by the appellant through Exts.A1 to A5. Since it is evident that there is amputation, obviously, the appellant will have to depend upon the artificial limb. The amount mentioned in the documents produced along with M.A.C.A. No.520/2016 also appears to be reasonable. In such circumstances, I deem it appropriate to award an amount of `2 lakhs for future treatment. 12. When coming to the contentions relating to the compensation awarded under the head of loss of earnings, I am of the view that, even though there is some force in the said M.A.C.A. Nos.616/2016 & 520/2016 : 10 : contention, the entire compensation awarded under the head cannot be excluded. It is true that when the compensation is awarded for loss of earning power by taking the functional disability as 100%, the tribunal should not have granted compensation for a loss of earnings for a period of 29 months. The period appears to be on the higher side. However, even if the amounts were granted for loss of earning capacity based on physical disability as 100%, the victim would still be entitled to a reasonable amount under the head of loss of actual earnings. This is particularly because both these heads represent compensation for two different aspects. To be precise, the loss of earnings represents the actual loss which the victim suffers consequent to the injuries sustained, whereas the loss of earning capacity represents the anticipatory loss which he may suffer in his capacity to earn in future. Therefore, merely because of the reason that the compensation for loss of earning capacity was granted, taking the disability as 100%, he cannot be deprived of a reasonable amount under the head of loss of earnings. The aforesaid view taken by this Court is fortified by the observations made by the Hon’ble Supreme Court in Rajkumar v. Ajaykumar M.A.C.A. Nos.616/2016 & 520/2016 : 11 : and another [(2011) 1 SCC 343] and Kajal v. Jagdish Chand and others [(2020) 4 SCC 413]. In both these decisions, the Hon’ble Supreme Court awarded compensation under both heads simultaneously, in which Kajal ’s case, the disability was 100%. Therefore, I am of the view that a reasonable amount can be granted under the head of compensation for loss of earnings. Since the leg of the appellant was amputated above the knee, certainly, he would have taken at least one year time to adjust himself with the disability and change in his life consequent to such serious injury and disablement. Therefore, I am of the view that compensation for loss of earning can be granted for a period of one year in this case, taking note of the peculiar facts and circumstances of the case. Accordingly, it is fixed as such, which would result in the revision of the amount awarded under the head as `1,08,000/- thereby, a deduction of `1,55,000/- is to be made. In the result, these appeals are allowed by modifying the award dated 01.04.2015 in OP(MV) No.1036/2011 passed by the Additional Motor Accident Claims Tribunal-IV, Pathanamthitta by M.A.C.A. Nos.616/2016 & 520/2016 : 12 : revising the amount of compensation as `24,81,515/- (Rupees twenty four lakhs, eighty one thousand, five hundred and fifty only) [2995915 – (59400 + 155000)] instead of `26,95,915/- fixed by the tribunal. Thus, it is ordered that the appellants herein shall deposit the said amount along with interest at the rate as ordered by the tribunal with proportionate cost within a period of three months from the date of receipt of a copy of this judgment after adjusting the amount already deposited by them in equal proportions. Sd/ZIYAD RAHMAN A.A. JUDGE ncd M.A.C.A. Nos.616/2016 & 520/2016 : 13 : ## **`APPENDIX OF MACA 520/2016`** ``` RESPONDENT ANNEXURES ANEXURE A2 ``` ``` ANEXURE A2Original quotation dated 22/7/2016 issued by Ottobock for Rs.1,75,218/- ANEXURE A3Original tax invoice dated 22/7/2016 issued by Ottobock for Rs.1,75,218/- ANEXURE A4Original bill dated 2/3/2021 for Rs. 692.60/- issued from Pushpagiri Medical College Hospital, Thiruvalla ANEXURE A6Original medical certificate dated 2/3/2021 issued from Pushpagiri Medical College Hospital, Thiruvalla ANEXURE A1Original bill dated 8/7/2016 for Rs. 1550/- ANEXURE A5Original bill dated 2/3/2021 for Rs. 3170/- issued from Pushpagiri Medical College Hospital, Thiruvalla ```