High Court of KeralaDivision Bench2013-11-07Appeal disposed of with modifications to the aw...

Oriental Insurance Co. Ltd. v. Rakith Madhukhar

Case / Petition Number:MACA.No.1810 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan
K. Ramakrishnan
Judgment Date: 2013-11-07
Court Decision / Holding: The High Court allowed the appeal in part and modified the impugned award. It held that the Tribunal could not award separate compensation for loss of earnings for the period already compensated under loss of earning power. Accordingly, it deducted Rs 3,00,000 from the total, reduced future attendant’s expenses by Rs 2,00,000, and lowered future treatment expenses to Rs 3,00,000. It also held that interest could not be awarded on future medical and attendant’s expenses in light of R.D. Hattangadi. The total compensation was refixed at Rs 29,19,439, and the amount for future treatment and future attendant’s expenses was capped at Rs 6,00,000, with no interest on those future costs. The appeal was disposed of with these modifications.
Final Disposition: Appeal disposed of with modifications to the award.

Parties to the Case

Appellants / Petitioners

Oriental Insurance Co. Ltd.

Respondents

Rakith Madhukhar

Legal Representation & Advocates

Counsels for Petitioners

• Adv. A.R. George

Counsels for Respondents

• Adv. Anil S. Raj
• Adv. K.N. Rajani
• Adv. Anila Peter
• Adv. G. Arun Gopan
• Adv. J. Vivek George

Case Synopsis & Summary

This is a Motor Accident Claims Appeal arising from an award of the Motor Accidents Claims Tribunal, Ernakulam, in OP(MV) No.1782/2006, where Rakith Madhukhar, represented by his wife, sustained serious injuries in a motor vehicle accident caused by a vehicle insured with the Oriental Insurance Co. Ltd. The Tribunal held negligence and awarded substantial compensation across heads including loss of earnings, loss of earning power, medical expenses, attendant’s expenses, and future treatment, totaling Rs 36,90,439 (as per the record). The insurer challenged the quantum on grounds of double counting of loss of earnings (awarding both loss of earnings and loss of earning power for overlapping periods), excessive attendant’s expenses (Rs 7,24,400, covering past and future needs), and inflated future treatment expenses (Rs 5,00,000). It also contended that interest on future attendant’s and medical expenses was improper in view of a Supreme Court ruling (R. D. Hattangadi). The respondent claimant, who is effectively bed-ridden with near-total disability, argued that the compensation awarded was modest given the lifelong care required. The High Court, after detailed consideration, held that the Tribunal erred in awarding separate compensation for loss of earnings for the period already covered by loss of earning power, and recalibrated several heads. It deducted Rs 3,00,000 for loss of earnings, reduced attendant’s expenses by Rs 2,00,000, and trimmed future treatment to Rs 3,00,000, while fixing future medical/attendant costs at Rs 6,00,000 with no interest. The total compensation was refixed at Rs 29,19,439, and the appeal disposed of with modified award.

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer argued that the Tribunal committed double counting by awarding separate compensation for loss of earnings beyond the period covered by loss of earning power and that the Rs 7,24,400 for future and past attendant’s expenses was excessive. It also contended that Rs 5,00,000 for future treatment was inflated and that interest on future attendant’s and medical expenses should not be awarded following the Supreme Court’s decision in R.D. Hattangadi. It urged recalibration of the award to avoid duplication and to reflect actual ongoing care needs.

Contentions of Respondents

The claimant contended that the award, given his near-total disability and lifelong care requirements, is reasonable and justified to cover medical, nursing, and ancillary needs for a lifetime.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
R. D. HATTANGADI v. PEST CONTROL (INDIA) PVT. LTD. & OTHERS	I SCC 551	Positive	Cited to support the proposition that interest cannot be awarded on future attendant’s expenses and future medical expenses, guiding the court’s modification of the award.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **THURSDAY, THE 7TH DAY OF NOVEMBER 2013/16TH KARTHIKA, 1935** **MACA.No. 1810 of 2011 ( ) --------------------------** ## **AGAINST THE AWARD IN OPMV 1782/2006 of M.A.C.T.,ERNAKULAM DATED 27-05-2011** ## **APPELLANT/3RD RESPONDENTIN THE OP :** **--------------------------------------------------------** **THE ORIENTAL INSURANCE CO.LTD. REPRESENTED BY THE ASSISTAT MANAGER &AUTHORISED SIGNATORY THE ORIENTAL INSURANCE CO.LTD. REGIONAL OFFICE ERNAKULAM METRO PLACE ERNAKULAM NORTH KOCHI - 18.** **BY ADV. SRI.A.R.GEORGE** ## **RESPONDENT/CLAIMANT IN THE OP:** **--------------------------------------------------** **RAKITH MADHUKAR, S/O. RAMAKRISHNAN REPRESENTED BY HIS WIFE-SANDHYA RAKITH MADHUKAR PARADISE, NELLIKKODE P.O. CALICUT** **R1 BY ADV. SRI.ANIL S.RAJ R1 BY ADV. SMT.K.N.RAJANI R1 BY ADV. SMT.ANILA PETER R1 BY ADV. SRI.G.ARUN GOPAN R1 BY ADV. SRI.J.VIVEK GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------- **MACA.No.1810 of 2011** ---------------------------------------------Dated this the 7[th] day of November, 2013 ## **JUDGMENT** ## **S.Siri Jagan,J.** The respondent herein suffered very serious injuries and consequential disabilities in an accident caused by the negligent driving of a vehicle insured with the appellant herein. The respondent filed OP(MV) No.1782/2006 before the Motor Accident Claims Tribunal, Ernakulam claiming compensation for the injuries and consequential disabilities suffered by him. The Tribunal, after finding negligence on the part of the driver of the vehicle insured with the appellant, awarded compensation under various heads as follows:- : 2 : MACA.No.1810 of 2011 |Heads|(In Rs. Amount awarded)| |---|---| |Loss of earnings|3,00,000| |Transportation expenses Damage to clothing & articles|25,000 1,000| |Extra nourishment|25000| |Medical Expenses|8,55,039| |Attendance expenses|7,24,400| |Compensation for pain and sufferings|1,00,000| |Compensation for loss of amenities and enjoyment in life|2,00,000| |For loss of earning power|9,60,000| |For future treatment expenses|5,00,000| |TOTAL|36,90,439| Aggrieved by the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal, seeking enhanced compensation. 2. The contention of the appellant is that, the claimant claimed a total compensation of ₹.20,000,00/under different heads, despite which the Tribunal awarded a total compensation of .36,90,439/-. It is submitted that₹ the Tribunal, after awarding compensation for loss of : 3 : MACA.No.1810 of 2011 earnings . 3,000,00/-, thereafter, taking into account the₹ period covered by the loss of earnings, assessed compensation for loss of earning power again, which is unsustainable. The contention is that, since the compensation for loss of earning power covers the period of loss of earning also, separate compensation for loss of earnings could not have been awarded for part of the same period. The second contention is that the Tribunal has awarded ₹7,24,400/towards attendant's expenses, for expenses already incurred and for future expenses as well which is on the higher side. It is further contented that the compensation awarded for future treatment expenses as .₹ 5,00,000/- is exorbitant. Lastly it is contented that the Tribunal wrongly awarded interest for future attendant's expenses and future medical expenses which could not have been done in view of the decision of the Supreme Court in R.D.HATTANGADI vs PEST CONTROL (INDIA) PVT.LTD AND OTHERS (1995) I SCC 551. MACA.No.1810 of 2011 : 4 : 3. On the other hand, the learned counsel for the respondent points out that the respondent is practically a vegetable for the rest of his life and he has to be spoon - fed for the rest of his life. Considering that fact, the amount of compensation awarded is only a paltry amount, is the contention raised in the appeal. 4. We have considered the rival contentions in detail. 5. We note that the disability certificate certified 90% disability and the Tribunal converted it into 100%. In so far as the respondent is practically a vegetable and confined to his bed, we do not find anything wrong in the conclusion arrived at by the Tribunal. But, we find that, after having given compensation for loss of earning power taking into account 100% disability from the date of accident, the Tribunal could not have separately awarded loss of earnings of .3,00,000/- for the period of treatment. Therefore, that₹ amount has to be deducted from the total compensation. : 5 : MACA.No.1810 of 2011 6. We are of the opinion that the future expenses for employing a home nurse or attendant is on the higher side. The attendant's expenses of .7,24,400/- is reduced by₹ ₹.2,00,000/-. We are of the opinion that the compensation for future treatment . 5,00,000/- is on the higher side. We₹ reduce the same to .3,00,000/-. As rightly pointed out by₹ the counsel for the appellant, for expenses to be incurred for future treatment and future attendant's charges, interest could not have been awarded as per the decision of the the Supreme Court in R.D.HATTANGADI (supra). Accordingly, the total compensation is modified by reducing to .7,00,000/-. Resultantly, total compensation to₹ be awarded is refixed as ₹.29,19,439/instead of Rs.36,19,439/-. However, future medical expenses and future attendant's expenses will not carry any interest. We clarify that the compensation for future treatment and future : 6 : MACA.No.1810 of 2011 attendant's expenses is .6,00,000/-.So for .6,00,000/- no₹ ₹ interest will accrue. With the above modifications of the impugned award the appeal is disposed of. Sd/- **S.Siri Jagan , Judge** Sd/- **K.Ramakrishnan, Judge** rmm //True Copy// PA to Judge MACA.No.1810 of 2011 : 7 :