United India Insurance Co. Ltd. v. Vetrivel

M.A.C.A.No.322/2016 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 30[TH] DAY OF JULY 2021 / 8TH SRAVANA, 1943_ ## _MACA NO. 322 OF 2016_ _AGAINST THE ORDER/JUDGMENT IN OPMV 1002/2012 III ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-ERNAKULAM_ _APPELLANT/S:_ _UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY THE DEPUTY MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, REGIONAL OFFICE AT ERNAKULAM, SARANYA, HOSPITAL ROAD, KOCHI-11._ _BY ADV SRI.S.ARUN RAJ_ ## _RESPONDENT/S:_ _VETRIVEL, S/O.PALANISWAMY, NICHAMPALAYA VILLAGE, NEAR MARIAMMAN KOVIL, KETTCHERIYUR P.O., GOPI TALUK, ERODE DISTRICT, TAMIL NADU._ _BY ADV SRI.K.V.RAJAN (CAVEATOR)_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.322/2016 2 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 30[TH] DAY OF JULY 2021 / 8TH SRAVANA, 1943_ _CO NO. 45 OF 2016_ _AGAINST THE ORDER/JUDGMENT IN MACA 322/2016 OF HIGH COURT OF_ _KERALA, ERNAKULAM_ ## _PETITIONER/S:_ _VETRIVEL, AGED 41 YEARS, S/O.PALANISWAMY, NICHAMPALAYA VILLAGE, NEAR MARIAMMAN KOVIL, KETTCHERIYUR P.O., GOPI TALUK, ERODE DISTRICT, TAMIL NADU._ _BY ADV SRI.K.V.RAJAN_ ## _RESPONDENT/S:_ _UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY THE DEPUTY MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, REGIONAL OFFICE AT ERNAKULAM, SARANYA, HOSPITAL ROAD, KOCHI-11._ _BY ADV SRI.A.R.GEORGE_ _THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.322/2016 3 ## **JUDGMENT** This appeal is filed by the insurance company, who is the 3[rd] respondent in O.P.(MV).No.1002/2012 on the file of the III Additional Motor Accidents Claims Tribunal, Ernakulam. The claim petition was filed by the 1[st] respondent herein seeking compensation for the injuries sustained to him in a motor accident occurred on 08.09.2011. According to him, he was working as a cleaner in a lorry and was aged 38 years at the time of accident. Income claimed was Rs.7,000/-. The amount claimed by him as compensation was Rs.24,00,000/-. 2. The insurance company alone contested the matter. In the written statement filed by them, they admitted the coverage of policy for the vehicle involved, but they disputed the liability on various grounds. In the trial, Exts.A1 to A12 were marked from the side of the 1[st] respondent/petitioner. The disability certificate issued from the Superintendent, Government Medical College Hospital, Kottayam was marked as Ext.X1. 3. After the trial, the Tribunal passed an award allowing a total compensation of Rs.23,09,500/- and the insurance company M.A.C.A.No.322/2016 4 was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition. Being aggrieved by the quantum of compensation, this appeal is filed by the insurance company. The 1[st] respondent filed cross objection No.45 of 2016 seeking enhancement of compensation. 4. Heard the learned counsel for the appellant and the learned counsel for the respondent. 5. The contention of the learned counsel for the appellant is that, the amount awarded by the Tribunal is extremely higher, particularly under the head of loss of earning power. He points out that, even after awarding a substantial amount of Rs.11,34,000/under the head of compensation for disability and a further amount of Rs.4,00,000/- for loss of earning capacity is seen granted. Similarly, he also points out that, without any material or even no discussion in the award an amount of Rs.5,00,000/- is granted under the head of compensation for future treatment. It is his further case that, even if it is found that respondent is entitled for any amount under this head, it should not have carried interest from the date of the petition. 6. On the other hand, the learned counsel for the respondent M.A.C.A.No.322/2016 5 contended that the amount awarded by the Tribunal requires enhancement, particularly under the head of permanent disability. According to him, he was aged 38 at the time of accident and he sustained permanent disablement of 90%. The quality of his daily life itself is seriously affected and he requires assistance of a third person even for following the basic routine of life. The Tribunal has not taken into consideration, future prospects in the matter of income of the petitioner, while calculating the compensation for disability. He further points out that the bystander expenses awarded by the Tribunal is only Rs.30,000/- and this amount also requires to be increased. 7. After considering the entire materials available on record, I find some force in the contention raised by the respondent as to the addition to be made towards future prospectus. The respondent was aged 38 years and was working as a cleaner in a lorry at the time of the accident. It is evident that the disability had deprived him from pursuing the said avocation completely. In such circumstances, as the injury and consequential disability being very serious in nature, while computing the compensation for permanent disability, necessarily some additions towards future M.A.C.A.No.322/2016 6 prospects have to be made. As per the principles laid down in ## **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16** **SCC 680],** in respect of persons below 40 years, an addition of 40% can be made when computing the compensation. In this case, as the age of the respondent is 38 years, addition of 40% can be made. Another dispute is regarding the multiplier applicable. The learned counsel for the appellants points out that, the multiplier adopted by the Tribunal is 16, whereas going by the decision in ## **Sarla Verma & Ors. v. Delhi Transport Corporation** **[(2009) 6 SCC 121]** it should have been 15. I am of the view that the said contention is in tune with the settled principles of law and hence it is to be accepted. In such circumstances, while re-computing the compensation by taking the revised monthly income with future prospects and also applying the multiplier of 15, the amount payable under the head of compensation for disability would come to Rs.15,87,600/- [(7000+40%) x 12 x 15 x 90/100]. 8. Another contention is relating to compensation for future treatment. It is true that the amount awarded under this head is M.A.C.A.No.322/2016 7 without any materials and the award is completely silent as to the grounds on which such finding was arrived at. However, at the same time, there is some force in the contention of the 3[rd] respondent that the amount awarded under the head of bystander expenses is only Rs.30,000/-. As the respondent being a person who sustained 90% disability and is bed ridden, he may require the assistance of a third person even for fulfilling his basic needs of his regular life through out. Therefore, the amount awarded under the head of bystander expenses is on lower side. However, I am not inclined to grant any addition in that head because, as I have already observed that, about an amount of Rs.5,00,000/- has been awarded towards future prospects without any supporting reasons and any materials, which is on higher side. I am of the view that, the amount of Rs.5,00,000/- as mentioned above would take care of the expenses which the petitioner may incur towards bystander expenses. In such circumstances, both the amounts awarded under bystander expenses as well as compensation for future treatment are not interfered with and the amount awarded by the Tribunal under the head of future prospects is treated as amount intended to cover the and future bystander expenses also. 8 M.A.C.A.No.322/2016 9. At this juncture, the learned counsel for the insurance company points out that, the claim of the respondent under the head of future treatment is only Rs.1,00,000/- and under bystander expenses, it was only Rs.50,000/-. and the Tribunal has already awarded substantial amount, more than the amount claimed for. However, I am of the view that, there is no restriction in granting more amounts than claimed for and it is a well settled legal principle. So the aforesaid contention is not legally sustainable. 10. The next aspect is relating to compensation for loss of earning power. A substantial amount has already been granted under the head of disability and while computing the same, the future prospects in the income was also taken into consideration. Actual loss of earnings was also compensated and an amount of Rs.1,00,000/- has been granted towards loss of amenities. In such circumstances, further amount under the head of compensation for loss of earning power, is not proper and hence, Rs.4,00,000/awarded for loss of earning power, awarded by the Tribunal is set aside. All the amounts awarded under the other heads are retained as such. 11. Another contention of the learned counsel for the M.A.C.A.No.322/2016 9 appellant is that the amount awarded under the head of future treatment cannot attract interest from the date of petition as the same is intended to cover the expenses which may incur by him in future. The said contention is legally sustainable and this Court is of the view that the interest for the said amount has to be limited from the date of award only and it is ordered accordingly. In this regard, it is to be noted that, I have already found that, the amount of Rs.5,00,000/- by the Tribunal under the head of future treatment expenses has to be treated as the compensation under two heads such as future treatment and future bystander expenses. As both the said compensations are in respect of expenses which will be incurring in future (with reference to the date of incident and date of petition), granting interest for the said amount from the date of the petition is not proper. 12. In the above circumstances, the award passed by the Tribunal is modified by fixing the total compensation as Rs.25,62,295/- (Rupees twenty five lakhs sixty two thousand two hundred and ninety five). Out of the said amount, Rs.20,62,295/(Rupees twenty lakhs sixty two thousand tw hundred and ninety five only) shall carry interest at the rate of 9% per annum, till M.A.C.A.No.322/2016 10 realization. Remaining amount of Rs.5,00,000/- (Rupees five lakhs) shall carry interest at the rate of 9% from the date of award only, till realization. The insurance company shall deposit the said amounts along with proportionate costs within a period of three months from the date of receipt of copy of this judgment. Appeal is disposed of accordingly. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/2.8.21