Kerala High Court
The Oriental Insurance Co. Ltd vs Chinnamma on 1 June, 2012
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 1ST DAY OF JUNE 2012/11TH JYAISHTA 1934
MACA.No. 2299 of 2007 ( )
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OPMV.3081/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR
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APPELLANT/3RD RESPONDENT:
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THE ORIENTAL INSURANCE CO. LTD.,
THRISSUR, REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.
BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)
RESPONDENT(S)/CLAIMANT:
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CHINNAMMA, W/O RAMAN,
RESIDING AT KUMBARA COLONY, CHETTIKUNNU,
KUMARANELLUR VILLAGE, THALAPPILLY TALUK.
BY ADV. SRI.SANTHEEP ANKARATH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 01-06-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Kss
PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.
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MACA. No. 2299 of 2007
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Dated this the 1st day of June, 2012
J U D G M E N T
Ramakrishna Pillai, J.
The Insurance Company is in appeal. The respondent a self employed lady was hit down by a car insured with the appellant Insurance Company on 19-6-2001 causing fracture to femur as well as tibia and fabula of her left leg. Against the claim of `2 lakhs the learned Tribunal awarded a sum of `2,32,650/- as compensation.
2. The compensation awarded includes a sum of `50,000/- awarded towards pain and suffering and a sum of `81,900/- awarded towards compensation for permanent disability computed on the basis of Ext.A12 certificate proved through PW-2 which states that the respondent is having a residual disability of 35%. The monthly income adopted for arriving at the compensation for permanent disability is `1500/- against a claim of `4500/-. The appellant mainly challenges the amount awarded for pain MACA No. 2299/07 -2- and suffering as well as compensation for permanent disability.
3. We have heard the learned counsel for the appellant Insurance Company and the learned counsel for the respondent. We have also perused the impugned award. Medical records reveal that the respondent sustained injuries as above. She was hospitalised for 593 days under different spells and she had suffered 11 surgical interventions. While the learned counsel for the appellant submits that the amount of compensation awarded by the Tribunal is on the higher side the learned counsel for the respondent justified the amount of compensation awarded for pain and suffering on the ground of long hospitalisation and the treatment which the appellant had undergone. What can be discerned from the medical records is that the repeated surgical interventions at different intervals was due to the failure of implants. The failure of implants can be attributed to the quality of treatments which the respondent got and we are of the view that the proper amount that could have been awarded by the Tribunal towards MACA No. 2299/07 -3- compensation for pain and suffering is `45,000/- . Thus the amount awarded by the Tribunal under that head shall stand reduced by `5000/-.
4. The learned Tribunal proceeded to award compensation for permanent disability under the presumption that the appellant was only 48 years old and the multiplier adopted was 13. The learned counsel for the appellant inviting our attention to Ext.A2 wound certificate submitted that the correct age of the appellant is 55. That means the multiplier that could have been adopted is 11.
5. The learned counsel for the appellant assailed Ext.A12 certificate also on the ground that the percentage of disability made mention of in Ext.A12 is on the higher side. Ext. A12 shows a disability of 35%. But we are of the view that the learned Tribunal was inclined to accept the percentage after evaluating the evidence of PW-2 who issued Ext.A12. It has to be borne in mind that the learned Tribunal also had an occasion to see the respondent. So we don't see any reason to interfere with the finding of the learned Tribunal regarding the percentage of disability which MACA No. 2299/07 -4- is supported by Ext.A12 medical certificate and the testimony of PW-2. When the disability compensation is recalculated adopting correct multiplier 11 it will stand reduced to `69,300/-. The amount awarded on that count shall stand reduced by `12,600/-. Thus in total there will be a deduction of `17,600/- from the amount awarded.
Appeal is allowed and the impugned award shall stand modified as above.
(PIUS C.KURIAKOSE, JUDGE) (A.V.RAMAKRISHNA PILLAI, JUDGE) ksv/-