National Insurance Company Limited v. Roopitha (died) and Mallika, RP.No.714 OF 2019 IN MACA. 1755/2015

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 26TH DAY OF SEPTEMBER 2019 / 4TH ASWINA, 1941** **RP.No.714 OF 2019 IN MACA. 1755/2015** **MACA 1755/2015 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/APPELLANT:** **NATIONAL INSURANCE COMPANY LIMITED, NEW DELHI NOW REPRESENTED BY ITS ASST. MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI - 35.** **BY ADV. SRI.P.JACOB MATHEW** ## **RESPONDENT/RESPONDENT:** **1 ROOPITHA (DIED),** **2 MALLIKA, W/O.RAJAN, MOOTHANDASSERY HOUSE, KOTTAPADI, GURUVAYOOR, PIN - 680 505.** **R2 BY ADV. SRI.BABU KARUKAPADATH R2 BY ADV. SMT.M.A.VAHEEDA BABU R2 BY ADV. SRI.P.U.VINOD KUMAR R3 BY ADV. M.A.VAHEEDA BABU** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 26.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RP.No.714 OF 2019 IN MACA. 1755/2015 2 ## **JUDGMENT** ## **Dated this the 26th day of September 2019** Appellant seeks review of the judgment. 2. The appellant was the insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal challenging the quantum of compensation fixed by the Tribunal for the claimant. There was a cross objection also in the appeal by the claimant challenging the inadequacy of the compensation. This court disposed of the appeal and the cross objection in terms of the judgment sought to be reviewed. 3. The relevant facts are the following: The claimant sustained serious injuries in a motor accident occurred on 12.01.2009. She was an employee in an Airlines company earning a monthly salary of Rs.4,950/-. At the time of accident, the claimant was aged 22 years. Rs.70,00,000/- was the claim made in the proceedings. As against the said claim, the Tribunal has granted Rs.46,80,916/- by way of compensation. As noted, both the insurer and the claimant were aggrieved by the said decision of the Tribunal. 4. It has come out that the Medical Board has assessed the permanent disability of the claimant at 100%. This Court found RP.No.714 OF 2019 IN MACA. 1755/2015 3 that while computing the compensation payable to the claimant for loss of earning capacity, the Tribunal has not added any amount to the multiplicand towards future prospects. Consequently, this court has re-computed the compensation payable to the claimant under that head and granted to her an additional compensation of Rs.4,32,000/-. This court has also granted Rs.3,00,000/- towards pain and suffering, Rs.3,00,000/- towards loss of amenities and enjoyments in life, Rs.3,00,000/- towards loss of marriage prospects, Rs.25,000/- towards extra nourishment and Rs.1,00,000/- towards reimbursement of the medical expenses incurred, by way of additional compensation. This court, however, noticed that there was duplication to the tune of Rs.5,00,000/- in the compensation granted by the Tribunal under the heads viz, loss of earning capacity, loss of future prospects and disfigurement. In the circumstances, after adjusting the said sum of Rs.5,00,000/- against the additional compensation to which the claimant was found entitled, this court disposed of the appeal and cross objection directing the insurer to pay the balance, viz, Rs.9,57,000/- by way of additional compensation. It is this judgment that is sought to be reviewed in this proceedings. 5. Heard the learned senior counsel for the appellant as also the learned counsel for the legal representative of the claimant who died pending the proceedings before this court. 6. The learned senior counsel for the appellant did not RP.No.714 OF 2019 IN MACA. 1755/2015 4 challenge the additional compensation granted by this court towards loss of earning capacity, extra nourishment and reimbursement of medical expenses incurred. It was, however, contended by the learned senior counsel that this court was not justified in granting Rs.3,00,000/- by way of additional compensation towards pain and suffering. It was pointed out that Rs.2,00,000/- granted by the Tribunal under that head would satisfy the requirement of just compensation in a case of this nature. Similarly, it was contended by the learned senior counsel that Rs.1,90,000/- granted by the Tribunal to the claimant towards loss of amenities and enjoyments in life would satisfy the requirement of just compensation under that head and the additional compensation of Rs.3,00,000/- granted by this court under that head was, therefore, not justified. Likewise, it was contended by the learned senior counsel that the claimant is not entitled to compensation for loss of marriage prospects in addition to the compensation granted towards loss of amenities and enjoyments in life and this court has, therefore, acted without jurisdiction in granting Rs.3,00,000/- by way of additional compensation over and above Rs.1,00,000/- granted by the Tribunal under that head. The learned senior counsel has also contended that this court had imposed penal interest on the insurer for non-compliance of the directions issued as regards the additional compensation payable. According to the learned senior counsel, there was absolutely no justification for RP.No.714 OF 2019 IN MACA. 1755/2015 5 imposing penal interest. 7. Per contra, the learned counsel for the legal representatives of the claimant contended that without the additional compensation granted, the compensation granted to the claimant would not have satisfied the requirement of just compensation provided for under the statute. 8. I have considered the contentions raised by the learned counsel on either side. 9. Having regard to the facts and circumstances of the case, especially the disability of the claimant certified by the Medical Board, I do not find any infirmity to be corrected in a review jurisdiction as regards the additional compensation granted by this court to the claimant towards pain and suffering and towards compensation for loss of amenities and enjoyments in life. As noted, Rs.4,90,000/has been granted altogether to the claimant towards compensation for loss of amenities and enjoyments in life. It is trite that loss of marriage prospects is the head falling under loss of amenities and enjoyments in life. This aspect has been clarified by the Division Bench of this court in **National Insurance Co. Ltd. v. Anoopkumar [** 2014 (1) KLT 266]. Paragraph 6 of the judgment in the said case reads thus : 6. We have also noticed that some Motor Accidents Claims Tribunals in the State have construed the decision of this Court in _George v. Thomas_ (2013 (1) KLT 575), wrongly, by holding that for disability, compensation RP.No.714 OF 2019 IN MACA. 1755/2015 6 has to be awarded only under one head. We reiterate that we have only held that apart from (1) compensation for loss of earning power and (2) compensation for disability/loss of amenities and enjoyment of life, there is no third head, because some Tribunals used to award compensation for (1) disability (2) loss of earning capacity and (3) loss of amenities and enjoyment in life separately under three separate heads, which should not be done. We make it clear that the head, 'loss of amenities and enjoyment in life' should take in its fold loss of good marriage prospect, disfiguration, loss of expectation of life and the like, which would affect his personal life adversely because of the disability. It is seen that a total sum of Rs.4,00,000/- has been granted by the Tribunal and this court to the claimant towards loss of marriage prospects. In the light of the decision of the Division Bench aforesaid, the claimant was not entitled to compensation separately for loss of marriage prospects. This court, in the circumstances, ought not have granted additional compensation to the claimant under that head. Further, this court ought to have adjusted the compensation of Rs.1,00,000/- granted by the Tribunal under that head against the additional compensation to which the claimant was found entitled to under other heads. It is all the more so since the claimant died pending proceedings and since the compensation granted for loss of earning capacity in her case was in fact, the compensation payable for loss of dependency in a case of death as the disability was 100%. 10. As rightly pointed out by the learned senior counsel for the insurer, penal interest is seen imposed on the insurer without supporting reasons and the said part of the order is also liable to be RP.No.714 OF 2019 IN MACA. 1755/2015 7 ## interfered with. The review petition, in the circumstances, is allowed and the additional compensation payable to the claimant is re-fixed at Rs.5,57,000/-. The direction in the judgment sought to be reviewed as regards the penal interest is vacated. Sd/- **P.B.SURESH KUMAR, JUDGE.** sd RP.No.714 OF 2019 IN MACA. 1755/2015 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A** **CERTIFIED COPY OF THE JUDGMENT IN M.A.C.A.NO.1755 OF 2015.** sd