The Oriental Insurance Company Ltd. v Asha and Others (MACA No. 3993/2017 & CO No.12/2020)

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 ``` ``` MACA NO. 3993 OF 2017 ``` ``` [AGAINST THE AWARD DATED 07.06.2017 IN OP(MV)NO.873/2014 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM] ``` ## `APPELLANT/3RD RESPONDENT IN THE OP:` ``` THE ORIENTAL INSURANCE CO. LTD., KOLLAM, REPRESENTED BY THE ASSISTANT MANAGER & AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI-18. ``` ``` BY ADV SRI.A.R.GEORGE ``` ## `RESPONDENTS/CLAIMANTS IN THE OP:` - `1 ASHA, W/O. SANTHOSH KUMAR, NARAYANA VILASM, (VIJAYA MANDIRAM), THEKKUMBHAGOM MURI, CHAVARA VILLAGE, KOLLAM – 691 583.` ``` 2SANTHOSH KUMAR, S/O VIJAYAN PILLAI, *(DECEASED) NARAYANA VILASAM (VIJAYA MANDIRAM), THEKKUMBHAGOM MURI, CHAVARA VILLAGE, KOLLAM – 691 583 ``` ``` (2ND RESPONDENT - INJURED IS REPRESENTED BY HIS AGENT 1ST RESPONDENT) ``` - `*ADDL.R3 DEVU S.KUMAR, D/O LATE SANTHOSH KUMAR, AGED 14 YEARS, NARAYANA VILASM, (VIJAYA MANDIRAM), THEKKUMBHAGOM MURI, CHAVARA VILLAGE, KOLLAM (MINOR REPRESENTED BY HER MOTHER)` - `*ADDL.R4 DEVAN S.KUMAR S/O LATE SANTHOSH KUMAR, AGED 12 YEARS, NARAYANA VILASM, (VIJAYA MANDIRAM), THEKKUMBHAGOM MURI, CHAVARA VILLAGE, KOLLAM (MINOR REPRESENTED BY HER MOTHER)` ``` *ADDL.R5RAJAMMA PILLAI, M/O LATE SANTHOSH KUMAR, AGED 68 YEARS, NARAYANA VILASM, (VIJAYA MANDIRAM), THEKKUMBHAGOM MURI, CHAVARA VILLAGE, KOLLAM. ``` ``` MACA NO.3993/2017 & C.O.NO.12/2020 ``` ``` -2- ``` ``` *LEGAL HEIRS OF R2 IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 5 AS PR ORDER DATED 05.12.2019 IN IA NO.4/2019 IN MACA – 3993/2017. ``` ``` BY ADV SRI.G.HARIKUMAR (GOPINATHAN NAIR) ``` ``` THIS MACA HAVING COME UP FOR ADMISSION ON 04.04.2023, ALONG WITH CO.12/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.3993/2017 & C.O.NO.12/2020 ``` ``` -3- ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 ``` ## `CO NO. 12 OF 2020` ``` [AGAINST THE AWARD DATED 07.06.2017 IN OP(MV)NO.873/2014 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ``` ## `KOLLAM] CROSS OBJECTOR/ RESPONDENTS/CLAIMANTS:` ``` 1ASHA, W/O. SANTHOSH KUMAR, NARAYANA VILASAM (VIJAYA MANDIRAM), THEKKUMBHAGAM MURI, CHAVARA VILLAGE, KOLLAM. 2SANTHOSH KUMAR, *(DIED) S/O. VIJAYAN PILLAI, NARAYANA VILASAM (VIJAYA MANDIRAM), THEKKUMBHAGAM MURI, CHAVARA VILLAGE, KOLLAM. ``` ``` *ADDL.C.O.3DEVU S.KUMAR, D/O.LATE SANTHOSH KUMAR, AGED 14 YEARS, NARAYANA VILASAM (VIJAYA MANDIRAM), THEKKUMBHAGOM MURI, CHAVARA VILLAGE, KOLLAM (MINOR REPRESENTED BY HER NATURAL GUARDIAN AND MOTHER ASHA, 1ST CROSS OBJECTOR). ``` - `*ADDL.C.O.4 DEVAN S.KUMAR, AGED 12 YEARS` ``` S/O.LATE SANTHOSH KUMAR, NARAYANA VILASAM (VIJAYA MANDIRAM), THEKKUMBHAGOM MURI, CHAVARA VILLAGE, KOLLAM (MINOR REPRESENTED BY HIS NATURAL GUARDIAN AND MOTHER ASHA, 1ST CROSS OBJECTOR). ``` - `*ADDL.C.O.5 RAJAMMA PILLAI, M/O.LATE SANTHOSH KUMAR, NARAYANA VILASAM (VIJAYA MANDIRAM), THEKKUMBHAGOM MURI, CHAVARA VILLAGE, KOLLAM.` - `LEGAL HEIRS OF DECEASED 2ND CROSS OBJECTOR` ``` MACA NO.3993/2017 & C.O.NO.12/2020 ``` ``` -4- ``` ``` ARE IMPLEADED AS ADDITIONAL CROSS OBJECTORS 3 TO 5, AS PER ORDER DATED 11/2/2020 IN IA 1/2020 IN UNNUMBERED CROSS OBJECTION OF 2020 (F NO.1668/2020). ``` ``` BY ADV G.HARIKUMAR (GOPINATHAN NAIR) ``` ## `RESPONDENT/APPELLANT/RESPONDENT:` ``` THE ORIENTAL INSURANCE CO. LTD., KOLLAM, REPRESENTED BY THE ASSISTANT MANAGER AND AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD. , REGIONAL OFFICE, ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, COCHIN-682 018. ``` ``` BY ADV A.R.GEORGE ``` ``` THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 04.04.2023, ALONG WITH MACA.3993/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.3993/2017 & C.O.NO.12/2020 ``` ``` -5- ``` ## `JUDGMENT` ``` [MACA No.3993/2017, C.O.No.12/2020] ``` ``` Among the above two cases, the Oriental Insurance Company Ltd. (‘Insurance Company’, for ``` ``` short) has filed MACA No.3993/2017, impugning the final Award of the Motor Accident Claims ``` ``` Tribunal, Kollam (‘Tribunal’, for short), in ``` ``` OP(MV)No.873/2014, on the singular issue that it ``` ``` has awarded an amount of Rs.36,00,000/- under ``` ``` the head “Permanent Disability”, after having granted Rs.75,61,800/- towards “Loss of ``` ``` Earnings” to the 2[nd] Cross Objector – now ``` ``` deceased Santhosh Kumar, who had been grievously ``` ``` injured in a road accident on 31.10.2013 - when ``` ``` the car in which he was travelling, was collided ``` ``` into by the offending Tipper Lorry, driven in a rash and negligent manner. ``` ``` 2.The original Cross Objectors, on their ``` ``` part, have filed C.O.NO.12/2020, alleging that ``` ``` MACA NO.3993/2017 & C.O.NO.12/2020 ``` ``` -6- ``` ``` the compensation awarded to them is inadequate, particularly because the 2[nd] among them – late Santhosh Kumar, had suffered 100% disablement and finally succumbed to it on 18.07.2019, pending the Cross Objection, after having undergone unbearable trauma for nearly six years. The other legal heirs of late Santhosh Kumar have also come on record as Cross Objectors 3 to 5 and they along with Cross Objector No.1 – mother of Cross Objectors 3 and ``` ``` 4 – are now prosecuting the Cross Objection. ``` ``` 3.Sri.A.R.George – learned counsel for the ``` ``` Insurance Company, vehemently argued that, though his client does not oppose the grant of ``` ``` Rs.75,61,800/- under the head “Loss of Earnings” to the injured, the further award of Rs.36,00,000/- towards “Permanent Disability” is improper and illegal. He thus prayed that the afore Appeal, to the extent impugned, be ``` ``` MACA NO.3993/2017 & C.O.NO.12/2020 ``` ``` -7- ``` ``` allowed. ``` ``` 4.Smt.Chithra Gopinathan – learned counsel appearing for the Cross Objectors, on the other hand, submitted that the undisputed pleadings and evidence on record establish that the 2[nd] Cross Objector – late Santhosh Kumar had suffered 100% disability consequent to the ``` ``` accident and that he was bedridden from that day until 18.07.2019, when he unfortunately passed away. She argued that, therefore, the ``` ``` compensation awarded by the Tribunal under the ``` ``` head “Permanent Disability” is without any error, particularly when, for such purpose, it had taken only a small amount of Rs.20,000/- as his notional income. ``` ``` 5.Smt.Chithra Gopinathan concluded saying that, in any event, the Insurance Company cannot assail the impugned Award because, no amount has been offered by the Tribunal under the head ``` ``` MACA NO.3993/2017 & C.O.NO.12/2020 ``` ``` -8- ``` ``` “Loss of Amenities”, which certainly was eligible to the 2[nd] Cross Objector, taking note of the injuries and total disablement suffered by him. She thus prayed that the afore Appeal be dismissed and the Cross Objection be allowed. ``` ``` 6.I have considered the afore rival submissions, on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. ``` ``` 7.The facts involved in these cases are not in dispute and it is, in fact, fully ``` ``` conceded by the Insurance Company. The factum of ``` ``` the 2[nd] Cross Objector – late Santhosh Kumar, ``` ``` having been disabled to the extent of 100% is expressly admitted, as also the fact he was bedridden and having required full time ``` ``` attender’s assistance until such time as he was ``` ``` MACA NO.3993/2017 & C.O.NO.12/2020 ``` ``` -9- ``` ``` alive. ``` ``` 8.As I have recorded above, the Insurance Company only assails the impugned Award on the ground that an amount of Rs.36,00,000/- has been granted to the 2[nd] Cross Objector for “Permanent Disability”,afterhavingofferedhim Rs.75,61,800/- under the head “Loss of Earnings”. ``` ``` 9.I must say upfront that there is ``` ``` substantial force in the afore submissions of the Insurance Company, as argued by their ``` ``` learned counsel – Sri.A.R.George, because, while computing the compensation under the head “Loss of Earnings”, the learned Tribunal has correctly reckoned the income of the 2[nd] Cross Objector – Late Santhosh Kumar, to be Rs.42,010/-, as per the available evidence; and has then adopted the multiplier of ‘15’, as per Sarla Verma & Others v.Delhi Transport Corporation & Another[2010 ``` ``` MACA NO.3993/2017 & C.O.NO.12/2020 ``` ``` -10- ``` ``` (2) KLT 802]. It has, thereafter, computed his ``` ``` notional income to be Rs.20,000/- for the purpose of “Permanent Disability” and awarded Rs.36,00,000/- under this head, reckoning his ``` ``` “Permanent Disability” to be 100%. Since the ``` ``` percentile of disability is not in dispute, the only question that has to be decided is whether this sum was justified. ``` ``` 10.It is now well established, without any ``` ``` requirement of restatement that, in the case where a person is disabled consequent to ``` ``` injuries sustained in an accident, he or she will require to be compensated for disability to the extent as is legally permissible. The ``` ``` learned Tribunal has, in fact, done so, by ``` ``` including it under the head “Loss of Earnings”, but which is effectively the compensation for disability because, as I have already said above, the income of the injured was fully ``` ## `MACA NO.3993/2017 & C.O.NO.12/2020` ``` -11- ``` ``` taken. Obviously, no further amount under the head “Permanent Disability” could have been granted, since what has been awarded as “Loss of Earnings”, in fact, fully subsumes the same. ``` ``` 11.However, that said, there is great force in the submissions of Smt.Chithra Gopinathan that no amount has been awarded by the Tribunal under the head “Loss of Amenities”. When it is ``` ``` conceded by the Insurance Company that the 2[nd] ``` ``` Cross Objector – late Santhosh Kumar, suffered 100% disability and that he lived in such a ``` ``` manner for 2023 days, which is nearly six years, until 18.07.2019 - when he unfortunately died, ``` ``` there can be no doubt that amounts under both ``` ``` “Loss of Amenities” and “Attender Assistance” ought to have been granted. This is in tune with the judgments of the Hon’ble Supreme Court in ``` ``` Kajal v.Jagdish Chand & Others[(2020) 4 SCC ``` ``` 413] andJithendran v. New India Assurance ``` ``` MACA NO.3993/2017 & C.O.NO.12/2020 ``` ``` -12- ``` ``` Company Limited and Another[2021 KHC 6653], which authorizes a sum of Rs.5,000/- each for two attenders; while, National Insurance Company Ltd. v. Pranay Sethi[2017 (4) KLT 662)] makes it indubitable that sufficient amounts are to be given for “Loss of Amenities”, even when compensation for “Loss of Dependency” is awarded. ``` ``` 12.That said, I am fully cognizant that law has now been well settled that the compensation for “Loss of Amenities” will have to be kept to a minimum, when compensation for “Permanent Disability” is fully granted. I, therefore, propose an amount of Rs.3,00,000/- under the head “Loss of Amenities” and an amount of Rs.10,000/- per month towards charges for two attenders for the 2[nd] Cross Objector – late Santhosh Kumar, between 31.10.2013 - when the accident occurred, and 18.07.2019 - when he ``` ``` MACA NO.3993/2017 & C.O.NO.12/2020 ``` ``` -13- ``` ``` unfortunately died. ``` ``` Resultantly, this Appeal and Cross Objection ``` ``` are partly allowed in the following manner: ``` - `(a) The compensation awarded by the Tribunal` ``` under the head “Continuing or Permanent ``` ``` Disability” is deleted. ``` - `(b) An amount of Rs.6,60,000/- (Rupees six` ``` lakhs sixty thousand only) is additionally ``` ``` awarded under the head compensation for ``` ``` “Attender Charges”, reckoning Rs.10,000/- per ``` ``` month for 2023 days, when the 2[nd] Cross Objector ``` ``` – late Santhosh Kumar, was alive, but fully ``` ``` bedridden. ``` **==> picture [377 x 13] intentionally omitted <==** ``` three lakhs only) is additionally awarded under the head “Loss of Amenities”. ``` **==> picture [377 x 12] intentionally omitted <==** ``` granted by the Tribunal will remain intact. ``` ``` Consequently, the Cross Objectors will be at ``` ## `MACA NO.3993/2017 & C.O.NO.12/2020` ``` -14- ``` ``` full liberty to recover the compensation, as modified by this Court, from the Insurance Company, along with interest at the rate of 8%, (modifying the rate of interest of 9% granted by the Tribunal, finding it to be on the excessive side), from the date of claim until it is recovered.They will also be entitled to ``` ``` proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance Company before the Tribunal, within a period of two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` akv ```