Partly allowed

Abdul Latheef v. Sreeram General Insurance Co.Ltd.

Kerala HC22 Feb 2023CO/36/2022

Case brief

AI extract

What is this about?

In a Motor Accidents Claims Appeal and Cross Objection, the High Court of Kerala quantified compensation for an injured pillion rider. The court enhanced permanent disability compensation to Rs. 16,53,750/- based on a 75% disability and future prospects, while reducing pain and suffering damages to Rs. 2,00,000/-.

What did the court decide?

Compensation for Permanent Disability enhanced to Rs. 16,53,750/-; Compensation for Pain and Suffering reduced to Rs. 2,00,000/-.

Abdul Latheef Vs Sreeram General Insurance Co.Ltd. — Motor Accident Claims | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶4

WEDNESDAY, THE 22ND DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944

¶5

MACA NO. 3544 OF 2021

¶6

[AGAINST THE AWARD DATED 02.08.2021 IN OP(MV)NO.705/2017 ON THE
FILE OF THE I ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL/I ADDL.

¶7

DISTRICT JUDGE, KOZHIKODE]

¶8

APPELLANT/2ND RESPONDENT:

¶9

M/S SHRIRAM GENERAL INSURANCE COMPANY LTD.
41/339 AZAD TOWER, AMMAN KOVIL CROSS ROAD,
KOCHI, PIN-682018, REPRESENTED BY ITS ASST. MANAGER.

¶10

BY ADV JOHN JOSEPH VETTIKAD

¶11

RESPONDENTS/PETITIONERS:

¶12

1 ABDUL LATHEEF, AGED ABOUT 46 YEARS, S/O.ABDURAHIMAN, FALIL MANZIL, POONUR ESTATE, THAMARASSERY P.O., KIDAVOOR AMSOM, KOZHIKODE, PIN-673 573.

¶13

2 BASHEER, AGED ABOUT 45 YEARS, S/O. AMMED, KOCHA HOUSE, PUTHUSSERI KADAVU, KUPPADITHARA, PADINJARETHARA P.O., WAYANAD, PIN-673575.

¶14

BY ADVS.AVM.SALAHUDIN
A.D.DIVYA

¶15

THIS MACA HAVING COME UP FOR ADMISSION ON 22.02.2023, ALONG
WITH CO.36/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶16

MACA No.3544/2021, C.O.No.36/2022

¶17

-2-

¶18

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶19

PRESENT

¶20

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶21

WEDNESDAY, THE 22ND DAY OF FEBRUARY 2023 / 3RD PHALGUNA,

¶22

¶23

CO NO. 36 OF 2022

¶24

[AGAINST THE AWARD DATED 02.08.2021 IN OP(MV)NO.705/2017

¶25

ON THE FILE OF THE I ADDL. MOTOR ACCIDENTS CLAIMS

¶26

TRIBUNAL/I ADDL.DISTRICT JUDGE, KOZHIKODE]

¶27

CROSS OBJECTOR/ 1ST RESPONDENT/CLAIMANT IN OPMV:

¶28

ABDUL LATHEEF, AGED 46 YEARS, S/O ABDURAHIMAN,
FALIL MANZIL, POONUR ESTATE, THAMARASSERY P.O.,
KIDAVOOR AMSOM, KOZHIKODE-673 573.

¶29

BY ADVS.AVM.SALAHUDIN

¶30

A.D.DIVYA

¶31

RESPONDENTS/APPELLANT & 2ND RESPONDENT/RESPONDENTS IN

¶32

OPMV:

¶33

1 SREERAM GENERAL INSURANCE CO. LTD., 41/339 AZAD TOWER, AMMAN KOVIL CROSS ROAD, KOCHI-682 018, REPRESENTED BY ITS ASST. MANAGER.

¶34

2 BASHEER, S/O. AMMED, KOCHA HOUSE, PUTHUSSERY KADAVU, KUPPADITHARA, PADINJARETHARA P.O., WAYANAD-673 575.

¶35

BY ADV JOHN JOSEPH VETTIKAD

¶36

THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP
FOR ADMISSION ON 22.02.2023, ALONG WITH MACA.3544/2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶37

MACA No.3544/2021, C.O.No.36/2022

¶38

-3-

¶39

JUDGMENT

¶40

[MACA No.3544/2021, C.O.No.36/2022]

¶41

Among the afore two cases, MACA 3544/2021

¶42

has been filed by ‘Shriram General Insurance

¶43

Company Ltd.’, impugning the Award of the Motor
AccidentsClaimsTribunal,Kozhikode

¶44

(hereinafter referred to as ‘the Tribunal’ for
short), in OP(MV) No.705/2017, which was filed
by the Cross Objector, on the ground that the
compensation awarded by it under two heads –
namely, compensation for ‘Pain and Suffering’
and‘Loss of Earnings’ – are excessive and
improper.

¶45

claimant in the aforesaid Original Petition –
who was grievously injured in a road accident

¶46

which occurred on 14.09.2016, while he was

¶47

riding pillion on a motor cycle, being hit by

¶48

the offending pick-up van driven by the 1st

¶49

MACA No.3544/2021, C.O.No.36/2022

¶50

respondent, asserts that the Award is inadequate
and liable to be enhanced by this Court.

¶51

3.I have heard Sri.John Joseph Vettikad –

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learned counsel appearing for the appellant -
Insurance Company and Smt.Divya A.D. - learned
counsel appearing for the Cross Objector.

¶53

4.I have also gone through the evidence

¶54

produced on record –copies of which have been

¶55

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.

¶56

5.Sri.John Joseph Vettikad submitted that

¶57

the compensation awarded by the Tribunal to the

¶58

Cross Objector under the head “Pain and
Suffering” is excessive; while no compensation
under the head “Partial Loss of Earning” should
have been granted, when sums under the head

¶59

“Loss of Earning” from 15.09.2015 to 15.03.2016

¶60

MACA No.3544/2021, C.O.No.36/2022

¶61

had already been awarded. He thus prayed that
MACA No.3544/2021 be allowed.

¶62

6.In response and per contra, Smt.Divya

¶63

A.D. - learned counsel for the Cross Objector,

¶64

submitted that, though the Tribunal had
correctly assessed the notional income of her
client to be Rs.10,500/-, as per the dictum of
the Hon’ble Supreme Court in Ramachandrappa v.

¶65

Manager, Royal Sundaram Alliance Insurance
Company Ltd. [(2011) 13 SCC 236], it failed in

¶66

adding future prospects, particularly because,
as per Ext.X1 - Disability Certificate, he had
suffered 85% functional disability. She added
that the Tribunal erred in reducing this and

¶67

reckoning it to be 50% for “whole body
disability”; and thus prayed that the impugned
Award be appropriately enhanced.

¶68

7.The afore narrative of the facts and

¶69

contentions of the parties render it indubitable

¶70

MACA No.3544/2021, C.O.No.36/2022

¶71

that, what is under main challenge is the sweep

¶72

of the injuries and the percentage of
disability suffered by the Cross Objector. The
medical evidence on record, particularly Ext.X1

¶73

- Disability Certificate and Ext.A2 - Wound
Certificate show that the Cross Objector
suffered the following injuries:

¶74

(3)Fracture right patella

¶75

(4)Fracture on right tibia

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(5)Fracture on distal phalanx right toe

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(6)Fracture on second and fifth toe

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 right open type-II.”

¶79

8.The Cross Objector was aged only 42

¶80

years at the time of the accident and the

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Tribunal itself has recorded that he had

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appeared before it, with the aid of crutches and

¶83

MACA No.3544/2021, C.O.No.36/2022

¶84

with the assistance of a person, even when he

¶85

took to the witness box. However, it then went
on to say that, since the Cross Objector had
been able to come to the Court - which is on the
1st floor of a building, without a lift - it is
to be assumed that he was able to climb steps,
albeit with the aid of a person or walking
assistance. On such reasoning, it went on to
reduce the disability to 50%, holding it to be
the “whole body disability”, though it noticed
that PW2 – doctor, who was part of the Medical
Board which issued Ext.X1, deposed vehemently
that 85% ought to be reckoned as his functional
disability.

¶86

9.There can be no doubt, going by the

¶87

medical evidence on record, that the injuries
sustained by the Cross Objector were extremely
grave and that the aftermath of it has led him
to be under great trauma and stress. In spite of

¶88

MACA No.3544/2021, C.O.No.36/2022

¶89

this, the learned Tribunal concluded, based on

¶90

the afore circumstances, that “he could carry on
some other lessor scale of activities and
functions so that he can continue to earn his
livelihood.” (sic).

¶91

10.The afore observations of the Tribunal

¶92

are certainly conjectural because, when the
Cross Objector has been found to be unable to
walk without aid and when it itself records that
he cannot now engage himself in any work which
requires physical labour, the observation that
he can do a “lesser scale activity” cannot
justify its conclusion to reduce the percentile
of disability to a mere 50%. When the competent

¶93

doctor as PW2 and Ext.X1 - Disability
Certificate issued by a Medical Board, certify
his functional disability to be 85%, certainly,
the Tribunal could have revised it only to a
slightly lesser extent, taking note of the

¶94

MACA No.3544/2021, C.O.No.36/2022

¶95

physical condition of the Cross Objector, but

¶96

not to the level which it has now done.

¶97

11.Taking note of thetotality of the

¶98

circumstances and the medical evidence on

¶99

record, I propose that the whole body disability

¶100

of the Cross Objector be taken as 75%.

¶101

Obviously, when the Cross Objector suffers from

¶102

such a high degree of disability, future

¶103

prospects also ought to be added to his income;
and taking note of the fact that he was aged 42
years at the time of the accident, 25% will
have to be adopted.

¶104

12.That being said, the amount awarded by

¶105

the Tribunal, under the head compensation for
“Pain and Suffering”, appears to be excessive,
because it has granted Rs.4,00,000/- and I am of

¶106

the view that an amount of Rs.2,00,000/- would
have been sufficient.

¶107

13.Similarly, as rightly argued by Sri.John

¶108

MACA No.3544/2021, C.O.No.36/2022

¶109

Joseph Vettikad, the Tribunal has already

¶110

offered compensation to the Cross Objector for
“Loss of Earning”from 15.09.2015 to 15.03.2016.

¶111

Resultantly and for the reasons above, I

¶112

dispose of the afore Appeal and Cross Objection
in the following manner:

¶113

“PermanentDisability”isenhancedto

¶114

Rs.16,53,750/- (Rupees sixteen lakhs fifty three
thousand seven hundred and fifty only), instead
of Rs.8,82,000/-, reckoning the notional income

¶115

of the Cross Objector to be Rs.10,500/-, then
adding 25% future prospects to it and adopting
75% as his permanent disability.

¶116

(b)The compensation awarded by the Tribunal
under the head “Pain and Suffering” is reduced
to Rs.2,00,000/- (Rupees two lakhs only).

¶117

(c)In all other heads, the compensation

¶118

granted by the Tribunal will remain intact.

¶119

MACA No.3544/2021, C.O.No.36/2022

¶120

Needless to say, the Cross Objector will be

¶121

at full liberty to recover the compensation, as
afore modified by this Court, from the Insurance
Company, along with interest at the rate of
7.5%, as awarded by the Tribunal, from the date
of claim until it is recovered. He will also be
entitled to proportionate costs on the enhanced
amount, as ordered by the Tribunal.

¶122

Sd/-

¶123

DEVAN RAMACHANDRAN

¶124

JUDGE

¶125

akv

Abdul Latheef v. Sreeram General Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

Abdul Latheef v. Sreeram General Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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