Shriram General Insurance Company Limited v. Prabhakaran M S/o. Sivasankaran

_MACA NO. 3983 OF 2016_ _1_ ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 20[TH] DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944 MACA NO. 3983 OF 2016** **AGAINST THE ORDER/JUDGMENTOPMV 706/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/S:** SHRIRAM GENERAL INSURANCE COMPANY LIMITED MUMBAI NOW REPRESENTED BY ITS LEGAL OFFICER,AZAD TOWER, AMMANCOIL CROSS, ROAD, KOCHI-35 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENT/S:** PRABHAKARAN M S/O. SIVASANKARAN, MUNDEKKAD, HOUSE,PADINHATTUMMURI PO., VIA KOOTTILANGADI, MALAPPURAM DISTRICT, PIN676506 BY ADV SRI.K..VIDYASAGAR (CAVEATOR) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _MACA NO. 3983 OF 2016_ _2_ ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------M.A.C.A. No.3983 of 2016 -------------------------------------Dated this the 20[th] day of December, 2022** ## **JUDGMENT** This appeal is filed by the Insurance Company against the award dated 18.8.2016 in O.P.(M.V.) No. 706/2011 on the file of the Motor Accidents Claims Tribunal, Manjeri. The appeal is filed aggrieved by the quantum of compensation awarded by the Tribunal. The appellant is the 3[rd] respondent and the respondent herein is the petitioner before the Tribunal. 2. The short facts are like this : 3. On 20.12.2009, at about 7.30 pm, the petitioner was crossing the Walayar Dam Road. At that time a motorcycle bearing registration number GA-06-C 0822 driven by the 1[st] respondent came from Coimbatore side to Palakkad in a rash _MACA NO. 3983 OF 2016_ _3_ and negligent manner and hit against the petitioner. Due to that, the petitioner sustained grievous injuries. According to the petitioner, the accident occurred due to the rash and negligent riding of the motor cycle by the 1[st] respondent. The respondent being the driver, owner and insurer of the Motor Cycle are jointly and severally liable to compensate the petitioner is the contention raised by the petitioner. To substantiate the case, the petitioner produced Exts.A1 to A14. Ext.B1 is the policy certificate produced by the respondent. Ext.X1 is the disability certificate issued by the District Medical Board. 4. After going through the pleadings and the documents produced, the Tribunal awarded a total compensation of 30,27,000/- when the claim amount was only Rs. 23,00,000/Aggrieved by the quantum of compensation, this appeal is filed. 5. Heard Sri.Mathew Jacob, Senior Counsel as instructed by Smt.Preethy R.Nair. I also heard the counsel appearing for the respondent/claimant. 6. The Senior Counsel submitted that even though the _MACA NO. 3983 OF 2016_ _4_ Insurance Company was having a contention that there is contributory negligence on the part of the respondent also, he is not pressing that. The Senior Counsel submitted that the appellant is aggrieved by the quantum of compensation. The Senior Counsel further submitted that towards the loss of earning, the Tribunal assessed the amount taking 36 months. According to the Senior Counsel, loss of earning can be assessed only from the date of accident till filing of the petition, which is only 17 months. The Senior Counsel also submitted that towards transport to hospital, an amount of Rs.2,00,000/is awarded when the claim of the claimant was only Rs.1,00,000/-. The Senior Counsel also submitted that towards extra nourishment and bystander's expenses also, huge amount is awarded. It is also submitted that towards the head of pain and sufferings, an amount of Rs. 3,00,000/- is awarded, when the claim is only Rs.1,00,000/-. It is also submitted that towards future treatment, an amount of Rs.5,00,000/- is awarded, when there is no claim in that head. Hence, the Senior Counsel submitted that the total amount awarded by the Tribunal is too _MACA NO. 3983 OF 2016_ _5_ high. 7. The counsel for the respondent/claimant on the other hand submitted that the Medical Board certificate shows that, the Medical Board found 100% disability. The counsel also takes me through para No.14 of the impugned award in which it is stated that the Tribunal personally examined the respondent and thereafter, awarded a just compensation. The counsel submitted that the Tribunal after considering the entire facts and on examination of the respondent, the compensation award was fixed and there is nothing to interfere with the same. The counsel for the respondent also submitted that even though the respondent has not filed any cross objection, it is to be noted that the monthly income of the respondent fixed is on a lower side. 8. This Court considered the contentions of the appellant and the respondent. A perusal of Ext.X1 Medical Board Certificate will show that the disability is 100%. As argued by the Senior Counsel, I am of the considered opinion that while assessing the loss of earning, the Tribunal ought to _MACA NO. 3983 OF 2016_ _6_ have taken the period from the date of accident till date of application. Therefore, the Tribunal ought to have multiplied the monthly income with 17 instead of 36. As far as the transport to hospital is concerned, the claim is only Rs.1,00,000/- and hence the Tribunal is erred in awarding an amount of Rs.2,00,000/-. Therefore, the claim of the respondent as such can be allowed in toto. Even though the Senior Counsel seriously argued that towards extra nourishment and bystander's expenses, only an amount of Rs.1,00,000/- is claimed, a huge amount of Rs.5,07,650/- is awarded, I am of the considered opinion that the said amount need not be interfered by this Court. The Tribunal after examining the respondent in person and also considering the facts and circumstances of the case, awarded an amount of Rs.5,07,650/-. The respondent is completely bedridden even now. I am of the opinion that this Court need not interfere with that in an appeal against the same. As far as the pain and suffering is concerned, an amount of Rs.3,00,000/- is awarded. The appellant challenged the same also. Again, after considering the serious _MACA NO. 3983 OF 2016_ _7_ nature of the injury and the present status of the respondent and in the light of Ext.X1, I am of the opinion that the amount awarded by the Tribunal towards pain and sufferings is also not on a higher side, even though the claim is only Rs.1,00,000/-. Towards the future treatment, there is no claim from the side of the respondent. But, the Tribunal awarded an amount of Rs.5,00,000/-. I am of the opinion that the same can be reduced to Rs.2,00,000/-. As far as the continuing or permanent disability, the Tribunal fixed the monthly income of the respondent/claimant as Rs. 6,600/-. According to the respondent, he was a heavy vehicle driver. In **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236] even a coolie worker will get an amount of Rs. 4,500/- per month in the year 2004. If the dictum in that case is accepted, the Tribunal ought to have fixed the monthly income of the respondent as Rs.7000/-. Since there is 100% disability, the Tribunal ought to have enhanced 25% towards future prospects in the light of the direction by the Apex Court in **National Insurance Company** _MACA NO. 3983 OF 2016_ _8_ **Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)]. Therefore, according to me, in the facts and circumstances of the case, continuing or permanent disability is to be reassessed in the following manner : 8750 (7000 +1750) X 12 X 13 = 13,65,000/- 9. According to me, this is a just compensation to be refixed by this Court in the facts and circumstances of this case and also in the light of the medical condition of the respondent. Therefore, the amount awarded by the Tribunal is to be re-fixed in the following manner : |Loss of Earning|7000X17 (1,19,000/-)| |---|---| |Transport to hospital|1,00,000/-| |Damage to clothing|500| |Medical Expenses|2,51,588/-| |Pain and suffering|3,00,000/-| |Extra nourishment|5,07,650/-| |Continuing<br>or<br>permanent<br>disability, if any|(8750X12X13) 13,65,000/-| _MACA NO. 3983 OF 2016_ _9_ |Future treatment|2,00,000/-| |---|---| |**Total**|**Rs. 28,43,738/-**| 10. Therefore, the respondent is entitled an amount of Rs.28,43,738/- with interest at the rate of 9% from the date of application till realisation. I also make it clear that towards future treatment, the interest will carry only from the date of award. Therefore, this appeal is allowed in part. The impugned award is modified and the total compensation entitled by the respondent/claimant is Rs.28,43,738/- with interest at the rate of 9% from the date of application till realisation. But I make it clear that the amount awarded for future treatment will carry interest only from the date of award. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS