National Insurance Company Limited v. Ramachandran and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 MACA.No. 2095 of 2006 ----------------------OPMV.710/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT: APPELLANT/3RD RESPONDENT -------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, PAROOR TOWER, P.B.NO.207, P.M.TAJ ROAD, CALICUT 673 001, REPRESENTED BY ITS ASSISTANT MANAGER, MOTOR THIRD PARTY CLAIMS SECTION, AJAY VIHAR, M.G.ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE RESPONDENTS: --------------- 1. RAMACHANDRAN, S/O.BALAN NAIR, AGED 25 YEARS, MARAKKATT MEETHAL HOUSE P.O. MUCHUKUNNU 673 307, KOYILANDI TALUK, KOZHIKODE DISTRICT. 2. K.KUNHAMU, MULATHEDATH HOUSE, (DIED) VELLIPARAMBA P.O. 673 003, KOZHIKODE. 3. T.K.SATHYAN, S/O.KUTTAYI, THARAYIL KALATH, URULAM PARAMBA, P.O. CHERUKAVU, PENGAD, 682 506. ADDL. R4. AMINA, W/O. KUNHAMU,MULATHEDATH HOUSE P.O. VELLIPARAMBA, CALICUT 673 008. ADDL.R5: SUBIRA, D/O. KUNHAMU MULALTHEDATH HOUSE, P.O. VELLIPARAMBA, CALICUT 673 008. ADDL.R6:BHUSHARA, D/O. KUNHAMU MULATHDATH HOUSE, P.O. VELLIPARAMBA CALICUT 673 008. ADDL.R7: FULAID, S/O. KUNHAMU, MULATHEDATH HOUSE, P.O. VELLIPARAMBA, CALICUT. 673008. L.Rs. Of the deceased 2[nd] respondent are impleaded as additional respondents 4 to 7 vide order dated 16/8/2011 in I.A. NO. 1335/2008 IN MACA 2095/2006. ADV. SRI.K.RAKESH ROSHAN FOR R1 SMT.THUSHARA.V FOR R1 SRI.P.V.KUNHIKRISHNAN FOR R.3 SRI.K.M.JAMALUDHEEN FOR ADDL.R SMT.LATHA PRABHAKARAN FOR ADDL.R THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI,JJ ==============================** ## **M.A.C.A. NO. 2095 OF 2006 ============================** ## **Dated this the 16[th] day of August 2011** ## **JUDGMENT** ## **R.Basant, J.** The Insurance company is the appellant. The claimant had claimed compensation for personal injuries suffered by him in a motor accident which took place on 20/5/2000. At the time of the accident, he was aged 25 years. He was a mason by profession. Against the claim of Rs.10 lakhs, the Tribunal awarded only an amount of Rs.4,40,723/- as compensation as per the details given below: |**_sl.No._**|**_Head of claim_**|**_Amount awarded_**| |---|---|---| |1|Pain and suffering|Rs. 50,000/-| |2|Hospital expenses including bystander<br>expenses|Rs. 12.600/-| |3|Transportation expenses|Rs. 6,000/-| |4|Loss of earnings(12 months)|Rs. 24,000/-| |5|Mental shock and inconvenience|Rs. 50,000/-| |6|Loss of permanent happy life|Rs. 50,000/-| MACA 2095/2006 2 |**_sl.No._**|**_Head of claim_**|**_Amount awarded_**| |---|---|---| |7|Medical expenses|Rs. 3,222/-| |8|Permanent disability|Rs.2,44,800/-<br>(2000x12x17x60/100)| ||Total rounded to|Rs.4,40,723/-| 2. The challenge is directed only against the quantum of compensation awarded. We have heard the learned counsel for the appellant and the learned counsel for the respondents. 3. The learned counsel for the Insurance Company assails the impugned award only on the ground that the quantum of compensation awarded is excessive. 4. Called upon to explain and be specific, the learned counsel for the appellant in particular assails the quantum of compensation awarded under the heads of pain and suffering, mental shock and inconvenience and loss of permanent happy life. An amount of Rs.50,000/- each has been awarded under these heads. A total amount of Rs.1,50,000/- has been awarded and the learned counsel for the Insurance Company contends that the amounts awarded under these three heads are excessive. That in short is the plea raised. MACA 2095/2006 3 5. The learned counsel for the claimant contends that in any view of the matter, the total amount of Rs.4,40,723/awarded as compensation is eminently reasonable and the same does not, at any rate, warrant interference. 6. We have been apprised of the nature of the injuries, the period of treatment, the nature of treatment as also the resultant disability. The deceased has suffered gross and grievous head injury. He was hospitalised for a period of 63 days in three different spells. He had undergone surgical procedures also. He was assessed by a Medical Board as having suffered 60% permanent disability. He was suffering from gross hemiplegia and facial palsy. The amount of compensation awarded under the heads of pain and suffering, mental shock and agony and loss of permanent happy life has to be understood in this background. The agony of the injured had continued for a period of 12 months before his treatment was complete. The Tribunal has accepted loss of earnings for the period of 12 months. The learned counsel for the respondent/claimant, in these circumstances, contends that the amount awarded under the MACA 2095/2006 4 head of pain and suffering cannot in any way said to be excessive. The learned counsel then submits that the remaining amount of Rs.1,00,000/- must be reckoned as awarded for the loss suffered by way of loss of amenities of life, disfiguration, inability to pursue normal avocation, shortened expectation of life, impairment of marriage prospects etc. Altogether under the composite head only an amount of Rs.1,00,000/- has been awarded, though described under two different heads – mental shock and inconvenience and loss of permanent happy life. 7. The learned counsel submits that the said amount of Rs.1,00,000/- awarded is perfectly justified under the head of loss of amenities. Taking all the dimensions of the loss suffered by the claimant on account of the permanent disability of 60% suffered by him at the age of 25 years, the total amount of Rs.1,00,000/- awarded under the composite head must be held to be perfectly justified under the head of loss of amenities including all dimensions of the loss. 8. The learned counsel for the respondent/claimant further contends that, at any rate, the claimant is entitled to support the MACA 2095/2006 5 award for other reasons. The respondent-claimant is entitled to urge other reasons to support the impugned award, even if this court were to take a view that the amount of Rs.50,000/- each awarded under the heads of mental shock and inconvenience and loss of permanent happy life are found to be overlapping and not justified. The learned counsel, in these circumstances, submits that this court must take particular note of the amount of Rs.2,44,800/- awarded under the head of permanent disability (reduction in earning capacity) by the multiplier multiplicand method. The injured/claimant was a 25 year old mason. The Tribunal unrealistically assumed that Rs.2,000/- is his monthly wages. Without any provision for enhancement/improvement in prospects of employment, the same amount of Rs.2,000/- was reckoned as the multiplicand also while awarding the compensation for reduction in earning capacity. The learned counsel submits that even in respect of a non-earning member, the law under clause 6 of Schedule 2 directs that the presumption must be drawn that even such a person would be earning an amount of Rs.1,250/-. That enabling MACA 2095/2006 6 presumption was enacted in 1994. Six years had elapsed, before the accident in this case had taken place. The claimant is a skilled manual worker - mason. He had claimed a monthly income of Rs.4500/-. The Tribunal had solely because the claimant was unable to produce any documentary evidence sailed to the conclusion that the monthly income can be reckoned only at 2,000/- per mensem. The learned counsel for the claimant further points out that even for a non earning home marker/housewife, the Supreme Court in **Lata Wadhwa v. State of Bihar[A.I.R. 2001 S.C. 3218]** has taken the view that Rs.3,000/-per mensem can safely be assumed to be the income. Therefore, in any view of the matter, there is no justification for adopting a monthly income of less than Rs.3,000/-. If credit is given to that, it can be seen that the claimant is entitled for a further amount of Rs.1,22,400/-(3000x12x17x60/100= 3,67,200 - 2,44,800 = 1,22,400/-) under that head itself, points out counsel. We find merit in that contention. 9. In this view of the matter, this appeal does not at any rate deserve favourable consideration argues the learned MACA 2095/2006 7 counsel for the claimant. The learned counsel for the claimant further points out that there are several other inadequacies in the impugned award passed by the Tribunal and if those inadequacies are rectified, the claimant will be entitled for a much larger amount. In this context, the counsel points out that loss of earning for 12 months was reckoned only 24,000/-, even though at any rate, the claimant would have been entitled for an amount of Rs.36,000/-. The learned counsel further points out that the Tribunal has committed gross error in awarding interest only at the rate of 6% per annum. The learned counsel for the respondent/claimant points out that all these circumstances must appeal to the court as sufficient to reject the appeal as at any rate the impugned award directing payment of an amount of Rs.4,40,723/- can be held to be fair, reasonable and just **.** 10. We have considered all the relevant inputs. We are persuaded to find reason in the argument advanced by the learned counsel for the respondent/claimant that even assuming that the amount of Rs.1,50,000 - Rs.50,000/- each under the heads of pain and suffering, mental shock and inconvenience MACA 2095/2006 8 and loss of permanent happy life were found to be marginally higher than the amount which the claimant would otherwise have been entitled to, that inadequacy/defect does not at any rate warrant invocation of the appellate jurisdiction under Section 173 of the Motor Vehicles Act. We agree with the learned counsel for the respondent/claimant that if this Court were to adopt fresh computation of compensation, Rs. 3000/- per month should certainly be adopted as the monthly earning of the claimant to ascertain reduction in earning capacity. In this view of the matter, we are of the opinion that the impugned award does not, at any rate, warrant appellate interference. 11. This appeal, in these circumstances, is dismissed. Sd/- **R.BASANT, JUDGE** ## **Sd/M.C. HARI RANI,JUDGE** ks. TRUE COPY P.S. TO JUDGE MACA 2095/2006 9 .