Reliance General Insurance Company Limited v Saidhalavi

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` WEDNESDAY, THE 5[TH] DAY OF APRIL 2023 / 15TH CHAITHRA, 1945 CO NO. 46 OF 2023 ``` ## `IN` ``` MACA NO.1294/2018 OF HIGH COURT OF KERALA ``` ## `PETITIONER/RESPONDENT:` ``` SAIDHALAVI AGED 53 YEARS S/O HUSSAIN,RESIDING AT PARAMBIL PEEDIYEKKAL HOUSE, AMAYOOR P.O.,PALAKKAD,, PIN - 679316 BY ADV T.C.SURESH MENON ``` ## `RESPONDENT/APPELLANT:` ``` RELIANCE GENERAL INSURANCE COMPANY LIMITED POOTHOLE, NOW REPRESENTED BY ITS LEGAL - CLAIMS MANAGER, REGIONAL OFFICE, KOCHI,, PIN - 682020 BY ADV P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2023, ALONG WITH MACA.1294/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [CO Nos.46/2023, MACA NO.1294/2018] ``` ``` 2 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 5[TH] DAY OF APRIL 2023 / 15TH CHAITHRA, 1945 ``` ## `MACA NO. 1294 OF 2018` ``` AGAINST THE AWARD DATED 09.06.2017 IN OPMV 1289/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## `APPELLANT/3RD RESPONDENT:` ``` RELIANCE GENERAL INSURANCE COMPANY LIMITED PUTHOLE NOW REPRESENTED BY ITS LEGAL-CLAIMS MANAGER, REGIONAL OFFICE, KOCHI-682 020. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## `RESPONDENT/PETITIONER:` ``` SAIDHALAVI S/O. HUSSAIN, PARAMBIL PEEDIYEKKAL HOUSE, AMAYOOR P.O,PIN- 679 310, REPRESENTED BY HIS NEXT FRIEND WIFE RASSIYA, PARAMBIL PEEDIYEKKAL HOUSE, AMAYOOR P.O, PIN-679 310. BY ADVS. T.C.SURESH MENON P.S.APPU A.R.NIMOD ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2023, ALONG WITH CO.46/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [CO Nos.46/2023, MACA NO.1294/2018] ``` ``` 3 ``` ## `JUDGMENT` ``` This appeal and Cross-Objection arise out of ``` ``` the Final Award of the Motor Accidents Claims Tribunal, Thrissur ('Tribunal' for short), in OP(MV) No.1289/2012. ``` ``` 2. The afore Original Petition was filed ``` ``` by the Cross-Objector - Sri.Saithalavi, who met with a road accident on 19.03.2012, when the motorcycle he was riding was hit by the offending one, driven in a rash and negligent manner. He was thrown to the road and sustained ``` ``` very serious injuries; thereby having to endure long period of treatment and amputation of his right leg. He, thus, filed the above Original Petition,seekingcompensationof Rs.14,94,000/- limited to 14,00,000/-; which has, in fact, been allowed to a higher sum of ``` ``` [CO Nos.46/2023, MACA NO.1294/2018] ``` ``` 4 ``` ``` Rs.15,50,900/-. The Cross-Objector, however, does not seem to be happy with this figure. ``` ``` 3.While so, the appellant - Insurance Company, which insured the offending vehicle, admits all other findings of the learned Tribunal, but questions its conclusion regarding the notional income of the Cross-Objector; reckoning of 'Future Prospects' and the percentile of 'Permanent Disability' suffered by him. They also contend that no amounts towards 'FutureBystanderExpenses'or'Future Treatment' could have been granted, in the absence of evidence. They have thus filed the afore Appeal, praying that the compensation awarded by the Tribunal be scaled down substantially. ``` ``` 4.As far as the Cross-Objector is ``` ## `[CO Nos.46/2023, MACA NO.1294/2018]` ``` 5 ``` ``` concerned, his contention is that the notional income adopted by the Tribunal in his favour is ``` ``` incorrect and that it should have been accepted ``` ``` to be Rs.12,000/-as claimed by him, proved through Ext.A14; and which also establishes that ``` ``` he was a 'Timber Business Men'. ``` ``` 5.I have heard Sri. Mathews Jacob – ``` ``` learned Senior Counsel, instructed by ``` ``` Smt.Preethy Nair appearing for the appellant Insurance Company and Sri.A.R.Nimodh – learned counsel appearing for the Cross-Objector. ``` ``` 6.I have considered the afore rival ``` ``` submissions, on the touchstone of the evidence ``` ``` on record, which I have analyzed very carefully. ``` ``` 7.As I have said above, the Insurance ``` ``` Company calls into question the correctness of the impugned Award only under three heads, ``` ## `[CO Nos.46/2023, MACA NO.1294/2018]` ``` 6 ``` ``` namely, 'Future Treatment', 'Future Bystander Expenses' and 'Loss of Earnings'. Their learned Senior Counsel, Sri. Mathews Jacob, vehemently argued that the amount of Rs.7,000/-, reckoned by the Tribunal as the notional income of the Cross-Objector, was wrong and that no 'Future Prospects' could have been added to it because Ext.A11 – Disability Certificate records his whole body disability to be only 30%. He pointed out that, however, the learned Tribunal has escalated this percentile to 50%, holding it to be the functional disability and he consequently awarded large amounts under the head 'Loss of Earning'. He, thus, prayed that said amount be scaled down; while the compensation awarded under the heads 'Future Bystander Expenses' and 'Future Treatment' be ``` ``` [CO Nos.46/2023, MACA NO.1294/2018] ``` ``` 7 ``` ``` deleted. ``` ``` 8. In response, Sri.A.R.Nimodh – learned counsel for the Cross-Objector argued that, even going byRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. ``` ``` [(2011) 13 SCC 236], the notional income adopted ``` ``` by the Tribunal in his client's favour is inadequate and that he is also entitled to have the same added by 40% 'Future Prospects', going byNational Insurance Company Ltd. v. Pranay ``` ``` Sethi [2017(4) KLT 662]. He thus prayed that the ``` ``` compensation awarded by the Tribunal be enhanced. ``` ``` 9.On the question of notional income of the Cross-Objector, I must say the I find substantial force in the submissions of Sri.A.R.Nimodh. This is because, even though the Cross-Objector ``` ## `[CO Nos.46/2023, MACA NO.1294/2018]` ``` 8 ``` ``` claimed to be a businessman, earning Rs.12,000/- ``` ``` per month, he has not been able to prove it, as rightly found by the learned Tribunal, because Ext.A14- certificate has remained without any corroborative support.However, when the learned ``` ``` Tribunal had thus been forced to reckon the notional income, it should have been guided by the declarations inRamachandrappa (Supra), in which, the Hon’ble Supreme Court has postulated that, even in the case of a Coolie, or a person with an unascertainable income, in the year 2012 ``` ``` – when the accident occurred - the minimum notional income to be adopted is Rs.8,500/-. ``` ``` 10.That said, as rightly argued by the ``` ``` learned Senior Counsel, Sri.Mathews Jacob, ``` ``` Ext.A11 - Disability Certificate records the Cross Objector’s whole body disability to be 30% ``` ``` [CO Nos.46/2023, MACA NO.1294/2018] ``` ``` 9 ``` ``` only. The learned Tribunal, however, escalated this to 50%, saying that this should be treated as partial disability. This is under challenge by the Insurance Company. ``` ``` 11.In this regard, it is without doubt - as ``` ``` is also undisputed – that, consequent to the ``` ``` accident, as evident from the medical evidence, ``` ``` including Exts.A5, A9 and A10 - Wound Certificate and Discharge Summaries the Cross Objector ``` ``` suffered the following injuries: ``` ``` “1.Both bone fracture just below right knee right side. ``` ``` 2. Multiple abrasions over right hand ``` ``` 3. Near total amputation proximal third leg with segmental fracture tibia injury to popliteal artery complete cut with anterior compartment muscles” (sic). ``` ``` 12.He was hospitalised and treated as an ``` ``` inpatient for more than 48 days; and thereafter, ``` ## `[CO Nos.46/2023, MACA NO.1294/2018]` ``` 10 ``` ``` unfortunately, had to endure amputation of his right leg. It is reckoning this, that Ext.A11 Certificate has been issued by a doctor certifying his disability to be only 30%. However, even going by the Workmen’s Compensation ``` ``` Act, 1923, an amputation of this nature would ``` ``` immediately entile reckoning of 50% as ``` ``` disability and am, therefore, of the opinion that the learned Tribunal cannot be found fault with. However, since there is no other evidence to establish the percentile of permanent disability and since Ext.A11 has been issued only by a doctor and not by a Medical Board, without the Cross Objector seeking to have himself examined by such a Board, I deem it appropriate to fix the percentile of permanent disability to be 40%, which would take care of the rival contentions. ``` ``` [CO Nos.46/2023, MACA NO.1294/2018] ``` ``` 11 ``` ``` 13.When the percentile of disability is so reckoned, the further question arises whether any future prospects can be added to the same. In Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd. [(2014) 2 SCC ``` ``` 735], the Hon’ble Supreme Court has directed that future prospects be added even in the case of a ``` ``` person with 35% disability. Similarly, in Vijaya Kumar Rastogi v. Uttar Pradesh State Roadways ``` ``` Transport Corporation [AIR 2018 SC 819] and Erudhaya – Priya v. State Express Transport Corporation Ltd. [2020 ACJ 2159],the Hon’ble ``` ``` Court allowed future prospects in the case of ``` ``` persons who had suffered 25% and 31.1% permanent ``` ``` disability respectively. In a later judgment, in ``` ``` Satheesh E. v. The New India Assurance Company Ltd. and Others[(2022) SCC OnLine 1828], the ``` ``` [CO Nos.46/2023, MACA NO.1294/2018] ``` ``` 12 ``` ``` Award of prospects for a person to 24% disability has been confirmed by the Hon’ble Supreme Court. ``` ``` 14.Obviously, in this case, when I reckon the permanent disability of the Cross Objector to be 40%, he certainly becomes entitled to future prospects being added to his income, as per Pranay Sethi(supra), since the Cross Objector was 42 years in age at the time of the accident. The future prospects to be added is hence 25%. 15.That being said, on the aspect whether the learned Tribunal could have awarded ``` ``` compensation for future Bystander’s expenses ``` ``` without any evidence, I find favour with the ``` ``` Insurance Company; and am of the view that said sum will require to be deleted. ``` ``` 16.However, as regards future treatment, the ``` ``` learned Tribunal has granted Rs.2,00,000/- ``` ``` [CO Nos.46/2023, MACA NO.1294/2018] ``` ``` 13 ``` ``` correctly since the requirement of the Cross Objector to replace his artificial limb and prosthetic, is evident from Ext.A16 - quotation issued by a qualified company. Even though the said quotation has not been properly proved, the factum of the requiremnt of the Cross Objector cannot be brushed aside. The learned Tribunal has, therefore, by a rough estimate, granted Rs.2,00,000/-againstthequotationof Rs.2,40,000/- mentioned therein. I cannot find this to be incorrect. 17.Similarly, the learned Tribunal has awarded compensation under the head “Pain and Suffering” and “Loss of Amenities” to the Cross Objector at the rate of Rs.1,00,000/- and Rs.1,50,000/- respectively. As I have already seen above, the injury sustained by the Cross ``` ``` [CO Nos.46/2023, MACA NO.1294/2018] ``` ``` 14 ``` ``` Objector was very severe and he had to endure at ``` ``` 48 days of hospitalisation. The amount of ``` ``` Rs.1,00,000/- towards “Pain and Suffering” can, ``` ``` therefore, certainly be not excessive. ``` ``` 18.Coming to the question of “Loss of ``` ``` Amenities” the factum of amputation of the right ``` ``` leg of the Cross Objector being fully conceded, I ``` ``` cannot find the amount of Rs.1,50,000/-, awarded ``` ``` by the learned Tribunal, to be more than deserving in any case. ``` ``` Resultantly, this appeal and Cross Objection ``` ``` are allowed in the following manner: ``` ``` a)The compensation under the head “Loss of Earnings” is enhanced to Rs.7,14,000/-, reckoning ``` ``` the notional income of the Cross Objector to be Rs.8,500/- per month, with 25% future prospects added to it and his percentile of disability ``` ``` [CO Nos.46/2023, MACA NO.1294/2018] ``` ``` 15 ``` ``` being reckoned as 40%, as mentioned above. ``` ``` b)Axiomatically, the compensation awarded ``` ``` by the learned Tribunal under the head “Loss of ``` ``` Earnings” is enhanced to Rs.51,000/-, from ``` ``` Rs.42,000/- reckoning the notional income of the ``` ``` appellant to be Rs.8,500/- per month, for six ``` ``` months, as correctly found by the learned ``` ``` Tribunal. ``` ``` c)The compensation awarded by the learned ``` ``` Tribunal under the head “Future Bystander Expenses” of Rs.75,000/- is deleted. ``` ``` In all other heads, the compensation awarded ``` ``` by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellant will be entitled to recover the compensation, as enhanced by this Court, from the respondent – Insurance Company, ``` ``` [CO Nos.46/2023, MACA NO.1294/2018] ``` ``` 16 ``` ``` along with interest at the rate of 8% (modifying ``` ``` the rate of interest of 9% granted by the ``` ``` Tribunal, in view of the escalation granted by ``` ``` this Court) from the date of filing of the claim ``` ``` until it is realised. ``` ``` The appellant will also be entitled to ``` ``` proportionate costs on the enhanced amounts as ``` ``` ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance ``` ``` Company before the learned Tribunal, within a ``` ``` period of two months from the date of receipt of ``` ``` a copy of this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ## `JUDGE` ``` SAS ```