Reliance General Insurance Co. Ltd. v. Sobin S/o Soman

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021/10TH AGRAHAYANA, 1943** **MACA NO. 595 OF 2016** **AGAINST THE AWARD IN OPMV 847/2010 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA.** ## **APPELLANT/3RD RESPONDENT:** RELIANCE GENERAL INSURANCE CO.LTD ALAPPUZHA,REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI **RESPONDENT:** SOBIN S/O.SOMAN, PUTHANVELI, CMC-17, CHERTHALA, PIN-688 524. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.MANU SEBASTIAN SRI P.J.JOE PAUL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.9.2021 ALONG WITH CO.69/2017, THE COURT ON 01.12.2021, DELIVERED THE FOLLOWING: MACA 595 OF 2016 & C.O.69 OF 2017 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021/10TH AGRAHAYANA, 1943** **CO NO. 69 OF 2017** **IN** **MACA NO. 595 OF 2016** **AGAINST THE AWARD IN OPMV 847/2010 OF ADDITIONAL MOTOR** **ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA.** ## **CROSS OBJECTOR/RESPONDENT/PETITIONER:** SOBIN S/O.SOMAN, PUTHANVELI, CMC-17, CHERTHALA. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN ## **RESPONDENT IN CROSS OBJECTION/APPELLANT/3RD RESPONDENT:** RELIANCE GENERAL INSURANCE CO. LTD ALAPPUZHA, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM-682017. BY ADV SMT.K.S.SANTHI THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 13.9.2021, ALONG WITH MACA.595/2016, THE COURT ON 1.12.2021 DELIVERED THE FOLLOWING: MACA 595 OF 2016 & C.O.69 OF 2017 3 ## **T.R. RAVI, J.** **-------------------------------------------M.A.C.A.No.595 OF 2016 & Cross Objection No.69 OF 2017** -------------------------------------------Dated this the 1[st] day of December, 2021 ## **JUDGMENT** The above appeal has been filed by the Insurance Company who was the 3[rd] respondent before the Tribunal and the cross objection has been filed by the claimant before the Tribunal. The parties are referred to on the basis of their status before the Tribunal. 2. On 8.7.2009, when the claimant was driving his motorcycle, he was hit by a jeep driven by the 1[st] respondent in a rash and negligent manner. As a result of the accident, his left leg had to be amputated. The claimant was aged 23 years at the time of the accident and claimed to have been working as the Collection Exicutive with Arbees Associates. He claimed that he was earning Rs.6,500/- per month. Claim petition was filed before the Tribunal. The Tribunal awarded a sum of Rs.17,14,350/- as against a claim for Rs.30 lakhs. The 3[rd] respondent has filed the appeal contending that the amount awarded is excessive. The claimant has filed appeal claiming enhanced compensation. MACA 595 OF 2016 & C.O.69 OF 2017 4 3. Heard the Counsel for the appellant and the respondent who is the cross objector. 4. Even though the counsel for the 3[rd] respondent contended that the Tribunal went wrong in fixing the notional income as Rs.5,000/- per month, the said contention was not seriously pursued, having regard to the fact that the accident occurred in 2009 and following the yardstick laid down by the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.,** reported in **[AIR 2011 SC 2951]** , the monthly income of a coolie would have been Rs.7,000/- in 2009. The other contention that is taken by the counsel is that the Tribunal went wrong in granting an amount of Rs.50,000/- towards mental agony, since sufficient amounts have been granted under the heads pain and suffering, loss of amenities and conveniences and loss of marriage prospects. 5. The counsel for the claimant submitted that the Tribunal went wrong in fixing the permanent disability at 45%, particularly since the claimant had lost his leg. It is submitted that pending the appeal, this Court had directed the Medical Board of the Government T.D. Medical College Hospital, Alappuzha to assess the disability of the claimant and the report has been submitted before MACA 595 OF 2016 & C.O.69 OF 2017 5 this Court, stating that the claimant has 70% disability. It is further contended that even though the orthopaedic disability may be 70% as assessed by the Medical Board, since the claimant will not be able to pursue his occupation with the disability, the case should be treated as a case of 100% disability. Reliance is placed on the judgment of a Division Bench of this Court in **Rajendran M. v. Union of India** reported in **[2017(5) KHC 222]** , **Jakir Hussein v. Sabir** reported in **[2015 (7) SCC 252]** and the judgment in M.A.C.A.No.2541 of 2014. Relying on the decision in **Sanjay Kumar v. Ashok Kumar and another** reported in **[(2014) 5 SCC 330]** , it is contended that having regard to the young age of the claimant, 50% should be added towards future prospects. 6. The next contention raised is regarding future medical expenses. It is submitted that for the purpose of fixing an artificial artificial limb an amount of not less than Rs.14,42,490/- will be required. Reliance is placed on Exhibits A12, A14 and Annexure 2 which has been produced in the appeal. PW2 was examined to state about the price and effectiveness of artificial limb. Reliance is also placed on the judgment in **Nagappa v. Gurudayal Singh** reported in **[(2003) 2 SCC 274]** . MACA 595 OF 2016 & C.O.69 OF 2017 6 7. Having heard the counsel on either side, I am of the considered opinion that the amount awarded by the Tribunal has to be enhanced. 8. Regarding the monthly income, I am of the opinion that the amount claimed ought to have been accepted. In view of the young age of the claimant, 50% of the monthly income is to be added towards future prospects. The monthly income for the purpose of calculating compensation for permanent disability will hence be Rs.9,750/-. 9. The contention of the Insurance Company that no amount ought to have been granted as compensation under the head mental agony, having regard to the fact that sufficient amounts have been granted under other heads like pain and suffering, loss of amenities and loss of marriage prospects is justified. The amount of **Rs.50,000/-** granted under that head has hence to be reduced. 10. The claimant had claimed an amount of Rs.13,50,000/towards future treatment and extra nourishment. The Tribunal had awarded a sum of Rs.2 lakhs under that head and Rs.4 lakhs towards artificially limb under the head loss of earnings (partial). I am of the opinion that the appellant is to be awarded a sum of MACA 595 OF 2016 & C.O.69 OF 2017 7 Rs.14,00,000/- towards cost of artificial limb and Rs.50,000/towards future treatment and extra nourishment. After deducting the amount of Rs.4,00,000/- awarded by the Tribunal, the claimant will be entitled to get an additional amount of Rs. **10,00,000/-** towards the cost of artificial limb under the head future treatment and out of the amount of Rs.2,00,000/- awarded towards future treatment and extra nourishment, a sum of **Rs.1,50,000/-** has to be reduced. However, since the artificial limb was yet to be fixed, no interest will be payable on the enhanced compensation referable to the cost of artificial limb. Since the above said amount is being awarded for a particular purpose, it would only be proper that the amount is released only at the time of requirement. Hence the said amount once deposited, has to be kept in a fixed deposit in a Nationalised Bank, earning interest and the Tribunal shall release the said amount whenever the requirement arises, on the basis of a request made in the form of a petition. 11. Regarding the claim that the case should be considered as a case of 100% disability, I am of the opinion that once the claimant gets the artificial limb fixed, there will be no justification to treat the case as 100% percent disability. However, an artificial limb will not be an equivalent for the natural limb and hence it MACA 595 OF 2016 & C.O.69 OF 2017 8 would be just and fair to adopt the percentage of disability fixed by the Medical Board on directions from this Court. Adopting the income of Rs.9,750/- and 70% disability, the claimant will be entitled to a sum of Rs.14,74,200/- (9750x12x18x70%) towards compensation for permanent disability. After deducting the sum of Rs.4,86,000/- awarded by the Tribunal, the claimant will be entitled to an additional sum of **Rs.9,88,200/-** under that head. 12. On the basis of monthly income of Rs.6,500/-, the loss of earnings for 10 months will be Rs.65,000/-. After deducting the sum of Rs.50,000/- awarded by the Tribunal, the claimant shall be entitled to and additional amount of **Rs.15,000/-** under the head. 13. In the result, the appeal and the Cross Objection are partly allowed. The claimant is awarded an additional compensation of **Rs.18,03,200/- (Eighteen Lakhs Three Thousand Two Hundred only)** with interest at the rate of 9% per annum on **Rs.9,53,200/-** (988200+15000-50000) from 19.8.2010 till date of realisation. The amount of **Rs.8,50,000/-** (1400000-600000+50000) awarded towards artificial limb will be retained in a fixed deposit with a Nationalised Bank and shall be released to the claimant for the purpose of facilitating the fixation of the artificial limb, when the requirement arises. The Insurance MACA 595 OF 2016 & C.O.69 OF 2017 9 Company shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the claimant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the claimant shall be in accordance with law. Sd/- **T.R. RAVI JUDGE** dsn MACA 595 OF 2016 & C.O.69 OF 2017 10 ## **APPENDIX IN MACA 595/2016** APPELLANT'S ANNEXURES: ANNEXURE 1: STATEMENT OF ACCOUNT DT.3.6.2019 ISSUED BY THE CHERTHALA BRANCH OF THE STATE BANK OF INDIA ANNEXURE 2: QUOTATION DT.3.6.2019 GIVEN BY ENDOLITE INDIA LIMITED FOR AN ABOVE KNEE PROSTHESIS