Dismissed

National Insurance Company v. Rajesh

Kerala HC5 Jul 2022MACA/3451/2015

Case brief

AI extract

What is this about?

The Kerala High Court dismissed an appeal filed by the insurer challenging a compensation award of Rs. 12,53,200 to a pedestrian injured in a road accident. The court upheld the Tribunal's assessment of notional income, disability percentage, and the overall compensation quantum.

What did the court decide?

The appeal was dismissed; the compensation award of the Tribunal was upheld and affirmed.

National Insurance Company Vs Rajesh — Medical Negligence | Kerala HC (2022)

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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 MURALI PURUSHOTHAMAN

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TUESDAY, THE 5^TH DAY OF JULY 2022 / 14TH ASHADHA, 1944

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MACA NO. 3451 OF 2015

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AGAINST THE AWARD DATED 30.04.2015 IN OPMV 792/2013 ON THE FILE OF

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THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA

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APPELLANT/2ND RESPONDENT:

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NATIONAL INSURANCE CO. LTD., PALA, REPRESENTED BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G. ROAD, ERNAKULAM, COCHIN – 682 035.

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BY ADV SRI.E.M.JOSEPH

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RESPONDENTS/CLAIMANT & 1ST RESPONDENT:

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1 RAJESH AGED 39 YEARS S/O. SEBASTIAN, ELAMPACHAMVEETTIL HOUSE, KURUVINAL, MUTHOLY P. O., PALA – 686 573. 2 DANEESH BALACHANDRAN AGED 30 YEARS S/O. BALACHANDRAN, MUTHOLIKUNNU HOUSE, PONADU, KAROOR P. O., PALA – 686 590.

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BY ADV SRI.P.C.HARIDAS

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA No.3451 OF 2015

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JUDGMENT

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The insurer, the 2^nd respondent in O.P.(M.V) No.792 of 2013 on the file of the Motor Accidents Claims Tribunal, Pala, has preferred this appeal aggrieved by the quantum of compensation awarded to the claimant, the 1^st respondent herein. The parties in this appeal are referred to as per their status in the claim petition.

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On 24.11.2012, while the petitioner was walking through Pala - Ettumanoor road, he was hit by a motor cycle bearing Reg. No.KL-35/C-4556 ridden by the 1^st respondent and the petitioner sustained serious injuries. He filed the claim petition claiming a total compensation of Rs.15,00,000/- for the injuries sustained in the accident. In the claim petition, it was contended that the accident happened due to the rash and negligent riding of the motor cycle by the 1^st respondent, who is none other than its owner.

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MACA No.3451 OF 2015

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Before the Tribunal, the 1^st respondent remained ex-parte. The petitioner was examined as PW1 and

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Exts.A1 to A11 documents were marked on his side. Ext.X1 is the disability certificate. From the side of the respondents, Ext.B1 was marked. The 2^nd respondent Insurance Company filed a written statement admitting the valid insurance policy of the motor cycle. However, it was contended that the accident happened due to the negligence of the petitioner and that the amount claimed as compensation is excessive.

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The Tribunal found that the accident happened due to the negligence of the 1^st respondent, the rider of the motor cycle and awarded an amount of Rs.12,53,200/- as compensation to the petitioner with 9% interest per annum from the date of petition till realisation and proportionate costs.

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The compensation awarded by the Tribunal under various heads is as follows:-

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Part I	Amount	Amount Awarded
	Claimed	(in Rs.)

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MACA No.3451 OF 2015

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	(in Rupees)
Loss of earnings	1,00,000	81,000 (9000x9 months)
Transport to hospital	25,000	16,500
Extra nourishment	2,000	5,000
Damages to clothing	2,000	Not entitled
Treatment Expenses	3,00,000	1,98,500
Bystander Expenses	25,000	7,000 (250x28 days)
Part II
Pain and suffering	75,000	75,000
Permanent disability	9,45,000	7,45,200 (9000x12x15x46/ 100)
Loss of amenities	1,25,000	1,25,000
Total Claim is limited to	15,99,000 15,00,000	12,53,200

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Challenging the award passed by the Tribunal,

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the 2^nd respondent insurer has filed this appeal.

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The learned counsel for the insurance company contends that the Tribunal has erred in taking Rs.9,000/as the notional monthly income of the petitioner for assessment of compensation and that the percentage of disability assessed by the Medical Board in Ext.X1 certificate is too high and the Tribunal went wrong in

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MACA No.3451 OF 2015

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relying on Ext.X1 for assessment. It is also contended that the amounts awarded under the head pain and suffering and loss of amenities are excessive.

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The petitioner was aged 39 years at the time of the accident. He wa s a freelance Accountant working in different shops in Paika. According to th e petitioner, his monthly income was Rs.14,000/-. Though he claimed only Rs.10,000/- as his monthly in the claim petition,

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the Tribunal took took the same as Rs.9,000/-. Even in respect of a casual worker, the Apex Court in

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Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13)

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SCC 236] has taken a notional income of Rs.4,500/- in 2004. Therefore, going by the dictum laid down in Ramachandrappa's case (supra), the income of a manual worker in 2012 can be taken as Rs.8,500/-. Since the petitioner was an Accountant, I find that the income fixed as Rs.9,000/- by the Tribunal is just and reasonable.

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MACA No.3451 OF 2015

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Going by Ext.A4 wound certificate and Ext.A7 discharge card, it is seen that the petitioner has sustained the following injuries:-

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“i) Fracture of the left forearm, pupil dilated, mild reaction, abrasion 1x2 cm left forearm.

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ii) The petitioner had sustained segmental fracture of the left radius with mid 1/3rd fracture ulna, segmental fracture of both bones of the left leg.

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iii) X-ray of the pelvis showed fracture of the ilium, malunited fracture of the clavicle, segmental fracture of the left radius with mid 1/3rd fracture ulna. He was admitted on 25.11.2012 and was discharged on 17.12.2012. He was again admitted on 24.07.2013 and was discharged on 26.07.2013. There was a third admission on 03.07.2014 and was discharged on 06.07.2014.”

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The Medical Board has issued Ext.X1 disability certificate assessing the whole body total disability of the petitioner as 45.6%, as follows:-

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“ Neuro Surgery – 20% Orthopaedic disability – 5.6% Ophthalmology – 20% Total – 45.6% (rounded of as 46%)”

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The said disability certificate was accepted by the

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MACA No.3451 OF 2015 7

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Tribunal wit h objection from the side of the Insurance Company. The Tribunal has taken the disability of the petitioner for the purpose of assessment of loss of earning capacity as 46%. According to the learned counsel for the Insurance Company, the Tribunal ought not have relied on Ext.X1 certificate as the same does not reflect the functional disability of the petitioner. The petitioner had deposed before the Tribunal that he was working as an Accountant in various firms in Paika and after the accident, he has confined his job to one particular firm. Going by Ext..X1 certificate, I find that the Tribunal has correctly assessed the disability of the petitioner as 46% for the purpose of assessment of loss of earning capacity. Therefore, I do not find any reason to interfere with the compensation awarded under the head permanent disability.

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Under the head loss of amenities, the petitioner claimed an amount of Rs.1,25,000/- and the said amount has been awarded by the Tribunal. Taking note of the

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MACA No.3451 OF 2015

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injuries sustained by the petitioner and the disability assessed by the Medical Board, I find that the amount of compensation awarded under the head loss of amenities is just and reasonable.

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For pain and suffering, the petitioner claimed an amount of Rs.75,000/- and the said amount is seen awarded by the Tribunal. I find the said amount also just and reasonable under that head.

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I do not find any reason to interfere with the compensation awarded by the Tribunal under other heads also.

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At the time of the admission of the appeal, this Court has granted stay of the operation of the award on condition that the appellant deposits an amount of Rs.8,00,000/- out of the compensation awarded with interest upto date. The learned counsel for the appellant submits that the said amount has already been deposited and the petitioner has withdrawn the same. The appellant shall deposit the balance amount with interest

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MACA No.3451 OF 2015

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and costs within a period of two months from the date of

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receipt of a copy of this judgment.

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Accordingly, the appeal is dismissed.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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SPR

National Insurance Company v. Rajesh

Case brief

What is this about?

What did the court decide?

National Insurance Company v. Rajesh

Case brief

What is this about?

What did the court decide?

What the court decided

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