Allowed

National Insurance Company Limited v. Roopitha

Kerala HC6 Dec 2018MACA/1755/2015

Case brief

AI extract

What is this about?

The Kerala High Court allowed a motor accident claim appeal filed by the insurer and disposed of a cross objection. The court enhanced the compensation awarded to a victim of a road accident who died years later, finding the tribunal undervalued her earnings, future prospects, and medical expenses despite 100% disability.

What did the court decide?

Enhanced compensation of Rs.9,57,000/- with 9% interest and costs granted to the cross objector, in addition to the original award amount.

National Insurance Company Limited Vs Roopitha — Medical Negligence | Kerala HC (2018)

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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 P.D.RAJAN

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THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 15TH AGRAHAYANA, 1940

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M.A.C.A.No. 1755 of 2015

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AGAINST THE AWARD IN OPMV 1685/2011 of MOTOR ACCIDENTS CAIMS TRIBUNAL, PERUMBAVOOR DATED 28-02-2015

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APPELLANT/3RD RESPONDENT:

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NATIONAL INSURANCE COMPANY LIMITED,

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NEW DELHI NOW REPRESENTED BY ITS ASST.MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M G ROAD, KOCHI - 35

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BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW

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RESPONDENT/PETITIONER:

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ROOPITHA (UNSOUNDMIND), D/O. RAJAN, MOOTHANDASSERY HOUSE, KOTTAPADI, GURUVAYOOR, PIN – 680 606, REPRESENTED BY HER MOTHER AND NEXT FRIEND MALLIKA, W/O.RAJAN, MOOTHANDASSERY HOUSE, KOTTAPADI, GURUVAYOOR, PIN 680 - 505

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BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.J.RAMKUMAR SRI.K.A.NOUSHAD SRI.MITHUN BABY JOHN SRI.M.M.MEERAN SRI.P.U.VINOD KUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No.1755 of 2015 &

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CO.No.211 of 2015 IN MACA.No. 1755/2015

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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 P.D.RAJAN

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THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 15TH AGRAHAYANA, 1940

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CO.No. 211 of 2015 IN MACA. 1755/2015

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AGAINST THE ORDER/JUDGMENT IN MACA 1755/2015 of HIGHCOURT

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CROSS OBJECTIONER/1ST RESPONDENT/PETITIONER

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ROOPITHA (UNSOUND MIND), AGED 26 YEARS, D/O RAJAN, MOOTHANDASSERY HOUSE, KOTTAPPADI, GURUVAYOOR, PIN – 680 605, REPRESENTED BY HER MOTHER AND NEXT FRIEND MALLIKA, AGED 53 YEARS, W/O RAJAN, MOOTHANDASSERY HOUSE, KOTTAPPADI, GURUVAYOOR, PIN – 680 605

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BY ADVS. SMT.M.A.VAHEEDA BABU SRI.J.RAMKUMAR SRI.MITHUN BABY JOHN SRI.P.U.VINOD KUMAR

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RESPONDENT/APPELLANT/3RD RESPONDENT:

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NATIONAL INSURANCE COMPANY LIMITED, FLAT NO. 101106, N-1 BMC HOUSE, CONNAUGHT PLACE, NEW DELHI, PIN – 110 001

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BY ADV. SRI.P.JACOB MATHEW

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THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 06.12.2018, ALONG WITH MACA.1755/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No.1755 of 2015 &

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CO.No.211 of 2015 IN MACA.No. 1755/2015

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JUDGMENT

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This appeal is preferred against the award in OP(MV)No. 1685/2011 of Motor Accidents Claims Tribunal, Perumbavoor

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by the insurer. On 12-01-2009 at 8.30.pm, the first respondent was riding a scooter through AthaniNedumbassery Airport Road, when she reached at the place of occurrence, another car KL-46 D- 633 driven in a rash and negligent manner hit on the rear side of the scooter. As a result, she was thrown away and sustained serious injuries. The accident was due to the rash and negligent driving of the car by the second respondent. The learned Tribunal awarded compensation of Rs.46,80,916/- with 9% interest and cost. Being aggrieved by that, the insurer preferred this appeal.

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In the lower court, the driver and owner were set ex-parte and did not contest the matter. The insurer contented that the accident was due to the negligence of the injured and she was not wearing protective helmet at the time of accident. R3 admitted the insurance of the vehicle. Claimant's evidence consist of oral testimony of

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MACA.No.1755 of 2015 &

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CO.No.211 of 2015 IN MACA.No. 1755/2015

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PW1 and PW2 and documentary evidence of Exts. A1 to A53. The disability certificate was marked as Ext.X1. Respondents did not adduce any oral or documentary evidence. The claimant preferred a Cross Objection No.211/2015.

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The learned counsel appearing for the appellant contended that the accident was due to the negligence of the injured. The case was registered by Nedumbassery police after nine months of the accident on the basis of a private complaint. The injured was rash and negligent for the accident. Excess amount was awarded towards future prospects after awarding amount for permanent disability. Loss of earning power was also considered after awarding amount for permanent disability. After awarding substantial amount towards loss of amenities, a sum of Rs.2,00,000/was awarded towards disfigurement and Rs.1,00,000/towards marriage prospects. She died after eight years. Hence the multiplier taken by the Tribunal is to be reduced.

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The learned counsel appearing for the Cross Objectioner No.211/2015 contended that the injured was a

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MACA.No.1755 of 2015 &

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CO.No.211 of 2015 IN MACA.No. 1755/2015

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permanent employee in Soudhi Airlines and she was working at Nedumbassery Airport office. She was a graduate and also having knowledge in computer application. She was holding diploma in business administration and getting Rs.5,000/- per month. But considering the standard of living the income has to be taken Rs.10,000/- per month. She sustained serious head injuries and she was fully bedridden and the Medical Board assessed the disability at 100% and is living in coma stage. A bystander was permanently appointed and huge amount was spent for her day to day care. Amount awarded towards extra nourishment, loss of amenities and future prospects are also very low. The amount awarded towards loss of future marriage prospects is also very low.

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In injury cases the damages are to be assessed separately as pecuniary and special damages. The object is to compensate injury so far as money can compensate. When compensation is to be awarded for pain, suffering and loss of amenities in life, special circumstances of the claimant have to be taken into account. Amount of

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MACA.No.1755 of 2015 &

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CO.No.211 of 2015 IN MACA.No. 1755/2015

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compensation for non-pecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. The assessment of compensation in permanent disability case would differ from person to person according to the nature of injury. Vast discretion is vested with the court for assessment of just compensation in injury cases. There can be no uniform standard and yardstick provided for assessing such compensation. When two persons sustain similar injury, that can attract the same compensation, but the heads under which, compensation can be attributed are truly amazing. The scope for awarding general damages and special damages are too wide for articulation. It is settled law that compensation for injury claims would be higher than that in death cases. The reason is that the injured has to suffer disability for the remaining period of his life. Generally in practical terms it is found that discretion vested in assessment has to be on the basis of injury sustained to the

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MACA.No.1755 of 2015 &

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CO.No.211 of 2015 IN MACA.No. 1755/2015

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victim and also on the nature of evidence in that case.

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Apex court in Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)] held as follows:

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“where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the

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MACA.No.1755 of 2015 &

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CO.No.211 of 2015 IN MACA.No. 1755/2015

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extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.

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The apex court in R.D. Hattangadi v. M/s. Pest Control (India) Pvt. Ltd. and others held that as follows:

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“damages to be assessed separately as pecuniary and

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MACA.No.1755 of 2015 &

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CO.No.211 of 2015 IN MACA.No. 1755/2015

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special damages - the object is to compensate injury so far as money can compensate - when compensation is to be awarded for pain, suffering and loss of amenity of life special circumstances of claimant have to be taken into account - amount of compensation for non-pecuniary loss not easy to determine but award must reflect that different circumstances have been taken into consideration”.

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Apex Court in Yadava Kumar v. D.M. National Insurance Co. Ltd. (2010 (8) SCALE 567) reiterated the principle in relation to the assessment of damages for personal injuries cases as follows:

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“ 17. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW1 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome.

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18. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a 'just compensation'. It is obviously true that determination of a just compensation cannot

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MACA.No.1755 of 2015 &

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CO.No.211 of 2015 IN MACA.No. 1755/2015

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be equated to a bonanza. At the same time the concept of 'just compensation' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field.

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Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable (See Mrs. Helen C. Rebello and Ors. v. Maharashtra State Road Transport Corpn. and Anr. MANU/SC/0621/1998: AIR 1998 SC 3191).

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19. This Court also held that in the determination of the quantum of compensation, the Court must be liberal and not niggardly in as much as in a free country law must value life and limb on a generous scale (See Hardeo Kaur and Ors. v. Rajasthan State Transport Corporation and Anr. MANU/SC/0235/1992: (1992) 2 SCC 567).

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20. The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation”.

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MACA.No.1755 of 2015 &

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CO.No.211 of 2015 IN MACA.No. 1755/2015

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9 . Apex court in Rajesh and Ors. vs. Rajbir Singh and Ors. ( 2013 ACJ 1403) held that “The Tribunal /Court has duty, irrespective of claims made in application, it any, to properly award just, equitable, fair and reasonable compensation, if necessary, ignoring claim made in application for compensation”.

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It is true that the injured was 22 years at the time of accident and she was working at Soudhi airlines. Ext.A53 shows that she was getting Rs.4,915/- The Tribunal rounded it as Rs.5,000/- . On 12-01-2011, the accident occurred and she died on 01-09-2017 i.e six and half years later. She sustained a permanent disability and fully bedridden living in a vegetable stage which was agreed by the appellant insurer. The percentage of earning capacity is 100% due to the impact of the permanent disability. Even though appellant contended that the accident was due to the negligence of the injured, no evidence has been adduce in the lower court to prove that point.

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The Medical Board certified 100% disability. Considering the injury, she is entitled to get just amount as

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MACA.No.1755 of 2015 &

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CO.No.211 of 2015 IN MACA.No. 1755/2015

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compensation. The income is Rs.5,000/-, 40% has to be added towards future prospects. The income will be Rs.7,000/-. The disability compensation is Rs.7000x12x18= Rs.15,12,000/-. The learned Tribunal awarded Rs.10,80,000/and the balance amount is Rs. 4,32,000/ -. In addition to that amount Rs.3,00,000/- is awarded towards pain and suffering, Rs.3,00,000/- towards loss of amenities and Rs.3,00,000/ towards loss of marriage prospects. She also produced additional medical bill for Rs.90,000/-. The learned Tribunal already granted Rs.2,00,000/-, in addition to that, considering the additional medical bill, Rs.1,00,000/- is awarded towards medical expenses. Rs.25,000/- is awarded towards extra nourishment. Total enhanced compensation is Rs.14,57,000/-. There is a duplication in the award amount towards loss of earning power, loss of future prospects and disfigurement. Hence, the amount awarded towards loss of earning power Rs.1,00,000/-, Rs.2,00,000/- towards disfigurement and Rs.2,00,000/- towards loss of future prospects are set aside. The balance is Rs.9,57,000/-. The cross objectioner is entitled to get enhanced compensation

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MACA.No.1755 of 2015 & CO.No.211 of 2015 IN MACA.No. 1755/2015

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of Rs.9,57,000/- (Rupees Nine Lakhs Fifty Seven Thousand only) with 9% interest and proportionate cost in addition to the award amount. The insurer is directed to satisfy the award within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default.

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This appeal and cross objection are disposed of, as above.

Sd/-

P.D.RAJAN, JUDGE

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MACA.No.1755 of 2015 &

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CO.No.211 of 2015 IN MACA.No. 1755/2015

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APPENDIX of co.no.211/2015 in MACA. No. 1755/2015

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PETITIONER'S EXHIBITS:

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ANNEXURE:A1: TRUE COPIES OF MEDICAL BILLS DATED 27/07/2017 TO 01/08/2017 SHOWING THE ADDITIONAL MEDICAL EXPENSES IN CONNECTION WITH THE TREATMENT OF DECEASED MS. ROOPITHA

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ANNEXURE:A2: ORIGINAL DISCHARGE SUMMARY BEARING NO.S632046 OF THE JUBILEE MISSION MEDICAL COLLEGE HOSPITAL, THRISSUR PERTAINING TO THE TREATMENT OF DECEASED MS.ROOPITHA

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//TRUE COPY//

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P.A.TO JUDGE

National Insurance Company Limited v. Roopitha

Case brief

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National Insurance Company Limited v. Roopitha

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