Partly allowed

The Oriental Insurance Co.Ltd. v. Sajeena

Kerala HC25 Nov 2013MACA/173/2005

Case brief

AI extract

What is this about?

The High Court of Kerala, in a motor accident claims appeal by the insurance company, found the Tribunal's quantum of compensation to victim Sajeena excessive. Reassessing evidence including bone grafting and inpatient treatment, the Court fixed the total compensation at ₹61,750 instead of the awarded ₹1,25,000 and directed payment with interest within two months.

What did the court decide?

Compensation fixed at ₹61,750 with 9% interest payable within two months.

The Oriental Insurance Co.Ltd. Vs Sajeena — Medical Negligence | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN &

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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MONDAY, THE 25TH DAY OF NOVEMBER 2013/4TH AGRAHAYANA, 1935

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MACA.No. 173 of 2005 ( )

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------------------------(AGAINST THE AWARD IN OP(MV)NO. 1262/1997 OF II ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,(DISTRICT COURT) KOLLAM DATED 05-02-2004)

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APPELLANT/3RD RESPONDENT IN THE OP:

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THE ORIENTAL INSURANCE COMPANY LIMITED., BRANCH OFFICE, KAYAMKULAM.

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BY ADV. SRI.A.R.GEORGE

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RESPONDENT(S)/CLAIMANTS/RESPONDENTS 1 & 2 IN THE OP :

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1. SAJEENA (MINOR), D/O.MUHAMMED KUNJU, VADAYIL KATTIL KAPPALLIL, KOZHIKODE MEKKU, AYANIVELIKULANGARA, KARUNAGAPPILLY.

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2. MOHAMMED KUNJU, S/O.ABOOBECKER KUNJU,- DO- -DO-.

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3. MATHEW VARGHESE, THEKKIZHATHU PUTHEN VEEDU, KATTANAM, MAVELIKKARA.*(DELETED)

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*4. SOMAN, S/O.RAGHAVAN, THIRUVIKKAL PUTHEN VEEDU, KATTUCHIRA,

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*PALLIKKAL. (DELETED)

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*RESPONDENTS NOS.3 AND 4 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 3/10/2013 IN I.A.NO.2475/2013 IN MACA.NO.173/05

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R1 BY ADV. SRI.P.B.SURESH KUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.

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---------------------------------------------------------------------M.A.C.A.No. 173 of 2005

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Dated this the 25^th day of November, 2013

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J U D G M E N T

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K. Ramakrishnan, J

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The 3^rd respondent insurance company in O.P. (M.V.).No.1262/1997 on the file of the Motor Accidents Claims Tribunal, Kollam is the appellant herein. The first respondent who was a minor aged 17 years at the time of the accident, filed the application for compensation through her guardian, 2^nd petitioner therein, for the injuries and consequential disabilities suffered by her in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by the 2^nd respondent, owned by the first respondent and insured with the appellant. After considering the evidence on record, the tribunal found negligence on the part of the driver of the vehicle and awarded a total compensation of ₹1,25,000/- under two heads as follows:

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M.A.C.A.No. 173 of 2005

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Sl. No.	Head of claim	Amount awarded₹
	Transport to hospital, extra nourishment, damage to clothing and articles, medicine, by standers	12, 000
1	expenses
2	Compensation for pain and suffering, continuing or permanent disability and for loss of earning power	1, 13, 000

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Dissatisfied with the manner in which the quantum of compensation was fixed by the tribunal, and quantum of compensation awarded, the appellant has filed this appeal before this court.

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Heard the counsel for the appellant and counsel for the insurance company.

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The counsel for the appellant submitted that, the compensation was not awarded under specific heads as required and the total compensation awarded is without any basis and was excessive. No permanent disability has been suffered by the appellant. In spite of that, compensation was awarded under the head continuing or permanent disability and loss of earning power as well. So the total compensation awarded is excessive and without any basis.

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On the other hand, the counsel for the first

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M.A.C.A.No. 173 of 2005

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respondent - claimant submitted that, she was aged only 17 years at the time of accident and she was studying in pre degree class. Since, she lost her academic career and she could not appear for the entrance examination on account of the injury sustained. She suffered severe fracture and treated with bone grafting. So considering these aspects, the total compensation awarded is on the lower side and no interference is called for at the hands of this court.

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We have considered the rival conventions

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of both parties in detail.

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At the outset, we may express our dissatisfaction regarding the manner in which the quantum of compensation was assessed by the tribunal. The tribunal has not considered the compensation payable under each head as provided and contemplated under the Act itself. The first respondent sustained comminuted fracture of lower 1/3^rd of tibia, left leg and she was treated with reduction and plaster of paris application. Bone grafting was done, when it was later

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M.A.C.A.No. 173 of 2005

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found that the fracture was not united. She continued treatment for nearly two months. She was a student aged 17 years at the time of accident. There is no document produced to show that, she is suffering from any permanent disability on account of the injuries sustained in the accident. The first respondent produced medical bills for 6,185/-. So considering these aspects, we re-₹ assess the compensation as follows:

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For medical expenses 7,000/-₹ Compensation for bystanders 1,500/- (for 20 days )₹ Extra nourishment 2,000/-₹ Transport to hospital 1,000/-₹ Damage to clothing 250/-₹

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Since, she had suffered fracture and also

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treated with bone grafting and underwent inpatient treatment for 20 days, we award 20,000/- under the₹ head pain and suffering. On account of the bone grafting, there will be scar left. She is a female child aged 17 years at the time of accident. She could not attend her classes for some time on account of the injuries sustained. So considering these aspects, we feel that an amount of 30,000/- can be awarded under the head loss₹

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M.A.C.A.No. 173 of 2005

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of amenities in life, which includes loss of marriage prospectus, dis-figuration caused on account of scar etc., In all, the appellant will be entitled to get an amount of ₹ 61,750/- as total compensation instead of 1,25,000/-₹ awarded by the tribunal. So, we are re-fix the compensation payable to the appellant as 61,750/-,₹ which the appellant insurance company is liable to pay with 9% interest per annum from the date of the claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount as well.

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With the above modification of the impugned award of the tribunal, the appeal is disposed of.

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Sd/S. Siri Jagan, Judge

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Sd/K. Ramakrishnan, Judge

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// True Copy //

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P.A. to Judge

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The Oriental Insurance Co.Ltd. v. Sajeena

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co.Ltd. v. Sajeena

Case brief

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