National Insurance Co. Ltd. v Aneesh @ Aneesh Kumar M.T.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 26[TH] DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945 ``` ## `MACA NO. 3400 OF 2016` ``` AGAINST THE ORDER/JUDGMENT OPMV 2353/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANT/3RD RESPONDENT:` ``` THE NATIONAL INSURANCE CO.LTD KOCHI, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ## `RESPONDENT/CLAIMANT:` ``` ANEESH @ ANEESH KUMAR. M.T S/O.THANKAPPAN, MANAPPURATH HOUSE,REPRESENTED BY THE NEXT FRIEND SREELAKSHMI,W/O.ANEESH @ ANEESH KUMAR M.T, MANAPPURATH HOUSE,BRAHMAMANGALAM.P.O., CHEMBU VILLAGE, VAIKOM. ``` ``` BY ADVS. SRI.C..ANILKUMAR (KALLESSERIL) (CAVEATOR) SRI.C..ANILKUMAR KALLESSERIL CAVEATOR ``` ## `OTHER PRESENT:` ``` FOR R3 BY SC SRI.GEORGE CHERIAN (SR.) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No. 3400 OF 2016 2 ## `JUDGMENT` This appeal is filed by the 3[rd] respondent in O.P(M.V) No.2353/2013 on the files of the Motor Accident Claims Tribunal, Ernakulam. 2. The said claim petition was submitted by the respondent herein seeking compensation for the injuries sustained to him in a Motor Accident that occurred on 26.05.2013. According to him, the accident occurred when the Autorikshaw driven by the respondent herein was knocked down by a car bearing a Reg.No.KL-07/BV 4406 driven by the second respondent in the claim petition. The said vehicle was owned by the first respondent in the claim petition and was insured with the appellant herein. Consequent to the accident, the respondent sustained very serious injuries and had undergone treatment for the same. The respondent was a driver aged 36 years at the time of the accident. The claim petition was filed by them seeking a total compensation of Rs.17,000,00/-. 3. The owner and driver appeared and filed a joint Written Statement contending that the accident occurred due to the negligence on the part of the respondent herein. It was also MACA No. 3400 OF 2016 3 contended that the vehicle was covered with a valid policy issued by the appellant herein, and therefore, if at all there is any liability, the same has to be met by the appellant. 4. The appellant / 3rd respondent filed a written statement. Admitting the coverage of insurance policy, but the liability was disputed on various grounds. The negligence on the part of the driver of the car was disputed, and it was contended that the accident occurred due to the negligence on the part of the respondent herein. The quantum of compensation was also disputed by them. 5. The evidence in this case consists of the oral evidence of PW1 and PW2, Exts.A1 to A19. The disability certificate issued by the Medical Board was marked as Ext.X1. No evidence was adduced from the side of the appellant. 6. After appreciating the materials placed on record, the Tribunal arrived at a conclusion that the accident occurred due to the negligence on the part of the driver of the car and being the insurer of the said vehicle, the appellant was found liable to pay the compensation. The quantum of compensation was fixed at Rs.79,37,582/- and the said amount was directed to be deposited by the appellant insurance company along with interest @ of 9% per MACA No. 3400 OF 2016 4 annum from the date of petition till the date of realization with proportionate costs. 7. This appeal is submitted by the 3[rd] respondent insurance company being aggrieved by the quantum of compensation. 8. Heard Sri. George Cherian (Thiruvalla), learned senior counsel for the appellant. 9. The specific contention put forward by the learned counsel for the appellant is that the quantum of compensation awarded by the Tribunal is exorbitant and irrational. The learned counsel mainly disputes the amount awarded under the heads of loss of earnings, pain and suffering, extra nourishment, transport to hospital, damages to clothes, loss of amenities, short expectation of life and future Medical expenses. 10. On carefully going through the materials placed on record, I find some force in the contention put forward by the learned senior counsel in this regard. When it comes to the question of the amount of compensation granted under the head of loss of earnings, the main contention put forward by the learned counsel for the appellant is that the Tribunal adopted the multiplier system. t was pointed out that the Tribunal has fixed the monthly income as Rs.8000/- and granted MACA No. 3400 OF 2016 5 compensation at the said rate for the period of 15 years, which was completely unwarranted. 11. It is also pointed out that the Tribunal has already awarded an amount of Rs.17,28,000/- under the head of compensation for disability and loss of earning power by adopting a multiplier of 15. Therefore, such a huge amount ought not to have been granted under the head of loss of earnings, contends the learned counsel. While considering the aforesaid aspect, I am of the view that, first of all, the amount to be awarded under the head of earning power consequent to the disability is to be correctly determined. It is seen from the records that the Tribunal has computed the compensation under the said head by fixing the monthly income as Rs.8000/- (Rupees eight thousand) with an addition of 50% towards future prospects. It is to be noted in this regard that as per the Ext.X1 disability certificate, the disability of the respondent was certified by the Medical Report as 80%. However, since the respondent was a driver by profession, the functional disability ought to have been taken, considering the fact that the nature of disability as revealed from the documents would certainly deprive him from pursuing his employment as a driver. The aforesaid position of law is settled by the Honorable Supreme Court in various MACA No. 3400 OF 2016 6 decisions. 12. Therefore, I am of the view that since the respondent sustained a physical disability of 80%, the same can be taken as 100% as functional disability to compute the loss of earning power. Besides the same, the Tribunal's monthly income of Rs.8000/- is also on the lower side and can be revised to Rs 9000/-. However, in the light of the principles laid down by the Honourable Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [ 2017(4) KLT 662], an addition towards future prospects can only be at 40%. Thus, while reworking the compensation under the head of loss of earning power with the said criteria, the compensation under this head would come to Rs. 22,68,000 [(9000+40%) 12 x 15]. 13. Now, when coming back to the question of the compensation for loss of earnings, the contention of the learned counsel for the appellant is that since this Court has revised the compensation for loss of earning power by taking functional disability @ 100%, no further amount is to be granted for Loss of earning. According to the learned counsel, since 100% functional disability is taken and compensation is calculated based on the same, he was granted the maximum amount receivable by him under the said head, MACA No. 3400 OF 2016 7 which would take in the period from the date of the accident. Therefore, granting any further amount under the head of loss of earnings would amount to duplication, contends the learned counsel for the appellant. 14. It is true that the amount awarded towards Loss of earning power consequent to functional disability @ 100% would cover the **.** period right from the date of the accident Since the multiplier applicable to his age is adopted, it can also be treated as the award for his entire life. But the crucial aspect to be noticed is that, merely because 100% functional disability was taken and compensation granted based on the same, the victim of a motor accident is not supposed to sit idle throughout the remaining life without pursuing any other avocation which he is capable of with the limited physical capacity. He has to move on in his life, and he has to live with the said disability. However, to get accustomed to the change in circumstances, owing to the physical disability and to face the challenges arising from the same, he has to make up his mind and adjust himself to the new situation. For the said purpose, he may require some time, and certainly during the said period, it may not be possible for him to carry out any work, and hence, he would be wholly deprived of any income MACA No. 3400 OF 2016 8 during that period. Therefore, to compensate for the same, some amount under the head of loss of earnings has to be granted for a reasonable period, even if the amount for loss of earning power is granted by taking the functional disability as 100%. 15. There is yet another aspect. The compensation under the head of loss of earning power and loss of earnings are completely different, without overlapping each other. Both heads are addressing different purposes and requirements. While compensation for loss of earnings, represents actual loss deemed to have been sustained by the victim being out of work, the loss of earning capacity represents the anticipated loss that he may incur consequent to the reduction in or complete loss of earning power due to the physical disability. In such circumstances, I am of the view that, merely because compensation was awarded for loss of earning capacity consequent to the physical disability with functional disability of 100%, that would not preclude the Tribunal in granting a reasonable amount for loss of earnings for a reasonable period. Thus, in the facts and circumstances of the case, I deem it appropriate to award compensation for loss of earnings for a period of six months. This is mainly because, the method of computation adopted by the Tribunal by applying the multiplier method MACA No. 3400 OF 2016 9 for the said purpose appears to be not correct since I have calculated the compensation for functional disability at the rate of 100%. Therefore, the amount of compensation of Rs.14,96,000/- awarded under the same is revised as Rs.54000/- (9000 x 6). 16. When moving on to the other heads, it is seen that towards transport to the hospital and amount to Rs. 75000/- has been awarded. However, it is seen that no documents were produced to substantiate the amount claimed under this. In the absence of any documents in this regard, such a huge amount ought not to have been granted. This is particularly because the amount under this head represents the actual expenses. However, considering the serious nature of the injuries and the prolonged treatment, a reasonable amount under this head has to be fixed and in the facts and circumstances of the case, I fix the said amount to be Rs.30,000. 17. Similarly, an amount of Rs.50,000 has been granted towards extra nourishment, which appears to be on the higher side and the same is fixed as Rs.25,000/- taking note of the facts and circumstances in this case. Similarly, the damages to clothing have been granted as Rs.10,000/- which is also on the higher side in the absence of any evidence in this regard. Therefore, a notional amount MACA No. 3400 OF 2016 10 of Rs.3000/- is granted under the same. 18. The other head which the learned counsel for the appellant objected to was the medical expenses. It was pointed out that, in addition to the actual medical expenses of Rs.10,56,082/-, the tribunal awarded a further amount of Rs.14,40,000/-. In addition to the said heads, the another amount of Rs.3,60,000/- was granted towards future treatment. 19. It was contented that such a huge amounts awarded under those steps are not only exorbitant but amount to duplication. However, on carefully going through the materials placed on record and the observations made in the award, it can be seen that Rs.14,40,000 was granted towards future medical expenses, taking note of the peculiar requirement in the said case. Based on the evidence of PW2, it was observed by the Tribunal that the respondent has to undergo physiotherapy for five days in a week. Even to preserve the present condition i.e. to ensure that the claimant's condition is stable, the physiotherapy is essential. Therefore, the expenses towards physiotherapy charges were fixed as Rs.400/- per day, for five days a week and for a period of 15 years (equivalent to the multiplier). The amount was calculated accordingly MACA No. 3400 OF 2016 11 and thus arrived at Rs.14,40,000/-. Considering the peculiar requirement as exists in this case, I am of the view that the amount awarded under the said head need not be disturbed. 20. However, when such a huge amount is awarded towards future treatment, a further amount of Rs.3,60000/- ought not to have been granted; therefore, interference is required to that extent. Thus, a separate compensation awarded under the head of future treatment is deleted. Even though the learned counsel for the appellant disputed the amount granted under the heads of compensation for payments of a loss of amenities, I do not find any reason to interfere with the said amount, taking note of the serious nature of the injuries sustained by the respondent and also the serious consequences of the disability which occurred from the same. 21. The further contention of the learned counsel for the appellant is with regard to the award of an amount of Rs.10,00,000/under the head of short expectation of life. When considering the fact that substantial amounts were granted under the head of compensation of loss of earning capacity owning to the disability, loss of earnings, and loss of amenities, etc., the further sum of Rs.10,00,000/- under the head of loss of short expectation of life was MACA No. 3400 OF 2016 12 not at all warranted, and hence the amount under the said head is deleted. Thus, reworking the compensation with the above revised criteria, the amount to be awarded to the respondent in the manner as follows. |Loss of earnings|54,000| |---|---| |Transport to hospital|30,000| |Extra nourishment|25,000| |Damage to clothes|3,000| |Attendant Expenses|22,500| |Medical Expenses|24,96,082 (1056082+1440000)| |Pain and Suffering|4,00,000| |Loss of Compensation for disability and|| |Loss of Earning capacity|22,68,000| |Loss of amenities|3,00,000| |**Total**|**59,58,582**| In such circumstances, this appeal is allowed by modifying the award passed by the Motor Accidents Claims Tribunal, Ernakulam dated 20.05.2016 O.P.(M.V) 2353/2013 by refixing the quantum of compensation of Rs.59,58,582 and the appellant is hereby directed to be deposited the said MACA No. 3400 OF 2016 13 amount of interest @ 8% with proportionate cost ordered by the Tribunal with in a period of three months from the date of a copy of this judgment. ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. ``` ``` JUDGE ``` ## mus MACA No. 3400 OF 2016 14 “In paragraph 21, page 13 of the judgment dated 26.09.2023 in MACA 3400/2016, the amount shown under the head Total in the table and the amount shown in the operative portion of the judgment is corrected as ` 55,98,582/-” instead of “` 59,58,582/-” as per order dated 19.12.2023 in IA 1/2023 in MACA 3400/2016” Sd/- DEPUTY REGISTRAR