M/S Reliance General Insurance Co. Ltd. v Anil Kumar

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 MACA NO. 1320 OF 2022 ``` ``` AGAINST THE AWARD DATED 15.04.2021 IN OP(MV) NO.688 OF 2018 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOLLAM ``` ## `APPELLANT/3RD RESPONDENT:` ``` M/S RELIANCE GENERAL INSURANCE CO. LTD. KABEER PLAZA, BOAT JETTY, ALAPPUZHA- 688001 REPRESENTED BY ITS ASSOCIATE MANAGER(LEGAL), REGIONAL OFFICE, 2ND FLOOR, VISHNU BUILDING, K.P.VALLON ROAD, KADAVANTHRA, PIN - 682020 BY ADVS.SMT.LATHA SUSAN CHERIAN SRI.GEORGE A.CHERIAN ``` ## `RESPONDENT/PETITIONER:` ``` ANILKUMAR, AGED 35 YEARS, S/O SURENDRAN, 247(355), CHAMPANKUNNUVILAYIL, KUNNATHOOR PANCHAYATH, KOLLAM - 691553 BY ADVS.SRI.R.REJI SRI.M.V.THAMBAN SRI.B.BIPIN SMT.THARA THAMBAN SRI.SUNEESH KUMAR R. SRI.ARUN BOSE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1320 of 2022 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 8[th] day of April, 2024** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Kollam (for short 'the Tribunal') on 15.04.2021 in O.P.(M.V.) No.688/2018. The appellant is the insurer of the offending vehicle involved in the motor accident. The challenge was mainly raised by the appellant against the quantum of compensation stood awarded by the Tribunal under various heads. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and the 3[rd] respondent in accordance with their status in the Original Petition. 3. According to the learned counsel for the 3[rd] respondent, the Tribunal has fixed the monthly income of the petitioner notionally as `14,300/-, since he failed to adduce any evidence. According to him when viewed in the light of the monthly income fixed by the Apex Court in **Ramachandrappa vs. Manager, Royal Sundaram** ``` M.A.C.A.No.1320 of 2022 ``` ``` 3 ``` ## **Alliance Insurance Company Limited [(2011) 13 SCC** **236]** the monthly income fixed notionally is excessive and disproportionate. 4. According to her, the Tribunal is not justified in awarding `15,000/as compensation towards transportation expenses against a claim raised by the petitioner for `10,000/-. According to her, while calculating compensation, the petitioner was taken as 40% functionally disabled by the Tribunal despite the factum that 26% was assessed by the Medical Board as his permanent disability in Ext.X1. Neither the petitioner nor any of the members of the Medical Board instrumental for issuing Ext.X1 was examined to establish that on account of the permanent physical disability certified as 26% in Ext.X1, the petitioner suffers 40% functional disability. The learned counsel contended further that `70,000/- and `1,00,000/- stood awarded by the Tribunal towards pain and sufferings and loss of amenities and enjoyments in life are also excessive. According to her, the Tribunal is unjustified in granting `63,000/- as compensation towards bystander expenses by taking `350/- per day for six months. According to her, ``` M.A.C.A.No.1320 of 2022 ``` ``` 4 ``` compensation stood awarded by the Tribunal towards loss of earning is also on the higher side. Thus, modification of compensation is sought under those heads. 5. The learned counsel for the petitioner contended on the contrary that compensation stood awarded by the Tribunal in favour of the petitioner being just and reasonable, interference is uncalled for. According to him, petitioner was residing at Kunnathoor Panchayath and had availed treatment from Government Hospital, Adoor for four different spells. The place of accident was far off from his residence. According to him, `15,000/- stood awarded by the Tribunal as compensation towards transportation expenses in the context discussed above, being a reasonable sum is not liable to be interfered with. According to him, petitioner had sustained compound fracture of left forearm and had undergone in-patient treatment for about an year and therefore, the Tribunal is totally justified in awarding `70,000/- and `1,00,000/- respectively as compensation towards pain and sufferings and loss of amenities and inconveniences. Petitioner was a mason by occupation and on account of the compound fracture ``` M.A.C.A.No.1320 of 2022 ``` ``` 5 ``` sustained to his left forearm and permanent disability of 26% certified in Ext.X1 as suffered by him on account of that, he may not be able to pursue the occupation he was doing in the same manner as was done by him prior to the motor accident. Thus, he canvassed for maintaining 40% functional disability considered by the Tribunal and the compensation stood calculated and awarded on it’s basis. 6. This Court has gone through the evidence on record. It is found from the discharge summaries marked in evidence as Exts.A2 and Exts.A8 to A12 that the petitioner had undergone inpatient treatment for five spells. From the above documents, this Court is convinced that the petitioner had sustained compound fracture of his left forearm in the motor accident and had undergone Open Reduction and Internal Fixation. Treatment as inpatient was also continued for about an year. Motor accident was also occurred at a place far off from his place of residence. Treatment was also availed from General Hospital, Adoor which is also situated at a considerably long distance from his place of residence. Therefore, this Court finds every reason to maintain `15,000/- stood awarded by the Tribunal ``` M.A.C.A.No.1320 of 2022 ``` ``` 6 ``` as compensation towards transportation expenses. The Tribunal has calculated compensation for bystander expenses by adopting `350/- as the sum payable daily, for a period of six months. When viewed in the backdrop of the injuries sustained by the petitioner and the treatment undergone by him, there is every justification for the Tribunal in awarding `63,000/- as the compensation payable towards bystander expenses. However, the compensation stood awarded by the Tribunal towards pain and sufferings and discomforts and inconveniences appear excessive and this Court reduces the same to `50,000/- and `60,000/respectively. 7. It is true that the petitioner did not depose about his difficulties to pursue with his job as a mason on account of the disability certified by the Medical Board in Ext.X 1. Evidence is not forthcoming from the petitioner to establish that he was a mason by occupation. But in the statement lodged by the petitioner to set the law in motion, marked in evidence as Ext.A7, he has introduced him as a mason by occupation at the relevant time of the motor accident. The Apex Court in **Ramachandrappa** supra, has fixed `4,500/- ``` M.A.C.A.No.1320 of 2022 ``` ``` 7 ``` as the monthly income of a coolie worker who met with a motor accident in the year 2004. Since the petitioner sustained injuries in a motor accident in the year 2016, there is every reason to fix the monthly income as `10,500/- on a proportionate basis. The permanent disability of the petitioner was certified by the Medical Board as 26%. Petitioner failed to adduce any evidence to establish that the occupation as a mason was abandoned by him after the motor accident or that he was incapacitated to continue that occupation, due to the disability. He also failed to adduce medical evidence by examining any of the doctors who had treated him or else anyone forming members of the Medical Board that issued Ext.X1. Therefore, the Tribunal undoubtedly is unjustified in calculating compensation by adopting 40% as his functional disability. 8. There is every reason to consider loss of future prospects in the case of the petitioner. Having due regard to the factum that the petitioner was aged below 40 years at the relevant time of the motor accident, 40% is liable to be added to the monthly income re-fixed as `10,500/- in consideration of his loss of future prospects and this Court ``` M.A.C.A.No.1320 of 2022 ``` ``` 8 ``` do so. Thus, `14,700/- ( `10,500/- + 40% of `10,500/- ) is arrived at. 9. Ext.X1 is a certificate issued by the Medical Board where the doctors who constitute it had assessed the permanent disability of the petitioner as 26%. Therefore, this Court is inclined to calculate compensation by adopting 26% as the permanent disability of the petitioner. As per Ext.A14, the age of the petitioner is 30 years and therefore, the multiplier applicable is 17. When compensation for disability is calculated afresh on the basis of the above factors, `7,79,688/- (`14,700/x12x17x26/100) is found payable. Inpatient treatment continued for a long period and it includes five different spells also. Therefore, the Tribunal is justified in awarding compensation for loss of earning for six months and when calculated afresh with the modified monthly income, `63,000/- ( `10,500/- x6) is arrived at. Petitioner failed to adduce evidence to establish that he requires future treatment. Therefore, the Tribunal undoubtedly has gone wrong in awarding `25,000/- as compensation towards future treatment expenses. ``` M.A.C.A.No.1320 of 2022 ``` ``` 9 ``` 10. In the calculation afresh as above, a sum of `10,53,688/- (rounded as `10,53,700/-) (`63,000/- + `15,000/- + `8,000/- + `4,000/- + `11,000/- + `63,000/`50,000/- +`7,79,688 + `60,000/- ) is arrived at as total compensation payable to the petitioner instead of `14,80,040/- stood awarded by the Tribunal. 11. In the result, the appeal on hand is allowed in part. The petitioner will get `10,53,700/- (Rupees Ten lakh fifty three thousand and seven hundred only) as the modified total compensation, in the place of `14,80,040/stood awarded by the Tribunal. Interest rate fixed by the Tribunal as 8% being reasonable is maintained. Therefore, the compensation now arrived at will carry interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent being the insurer shall deposit the above sum in favour of the petitioner in accordance with the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. The Tribunal while disbursing the amount in favour of the petitioner shall also see that additional court fee is ``` M.A.C.A.No.1320 of 2022 ``` **==> picture [22 x 9] intentionally omitted <==** deducted from the compensation payable, since the compensation awarded now being excess than his claim in the Original Petition. Sd/- **MARY JOSEPH** **JUDGE** MJL