Kerala High Court
The Oriental Insurance Co.Ltd vs Sujith on 18 October, 2010
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: "C. R."
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
SATURDAY, THE 20TH DAY OF DECEMBER 2014/29TH AGRAHAYANA, 1936
MACA.No. 249 of 2011 (C)
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AGAINST THE AWARD IN OPMV 2085/2005 of M.A.C.T.,PERUMBAVOOR
DATED 18-10-2010
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APPELLANT/2ND RESPONDENT IN THE OP:
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THE ORIENTAL INSURANCE CO.LTD.,
ANGAMALY BRANCH, REPRESENTED BY THE ASSISTANT
MANAGER & AUTHORISED SIGNATORY, THE ORIENTAL
INSURANCE CO.LTD., REGIONAL OFFICE ERNAKULAM
METRO PALACE, ERNAKULAM NORTH, KOCHI-18.
BY ADV. SRI.A.R.GEORGE
RESPONDENTS/CLAIMANT & IST RESPONDENT IN THE OP:
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1. SUJITH, S/O.SURENDRAN, THYKOOTTU HOUSE,
NOCHIMA, KOMBARA, ALUVA-683 101.
2. RAJU, S/O.VARGHESE,
KOZHIPATTU HOUSE, NEAR SIMHASANA CHURCH, THURUTHISSERY,
MEKKAD.P.O., CHENGAMANAD-683 589.
BY ADV. SRI.GOPAKUMAR G. (ALUVA)
BY ADV. SMT.ANUPAMA JOHNY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 20-12-2014, ALONG WITH MACA. 276/2011, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
THOTTATHIL B. RADHAKRISHNAN
&
BABU MATHEW P. JOSEPH, JJ.
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M. A. C. A. Nos.249 & 276 of 2011 "C. R."
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Dated this the 20th day of December, 2014
JUDGMENT
Thottathil B. Radhakrishnan, J.
These appeals arise from an award of the Motor Accidents Claims Tribunal. One is by the claimant and the other by the insurer.
2. Claimant lost one of his kidneys as a result of the accident. He also suffered three fractures. The Medical Board, to which the case was referred by the Tribunal, determined the disability, noting the nephorology related disability as 25% and orthopaedic disability as 5%; the total disability being, thus, 30%.
3. The insurer appeals on the plea, and it is argued on its behalf, that it has to be accepted as a principle of law, that loss of a kidney ought not to be treated as resulting in any disability, because kidney donation and transplant has M. A. C. A. Nos.249 & 276 of 2011 -2- become an acceptable mode and it is the matter of scientific impression that no loss would be caused to the donor if one loses a kidney. We are unable to countenance this. For one thing, there is a wide difference between one person making a voluntary donation of one of his organs during his life time, permitting it to be harvested from his body, on his volition, while he is alive, vis-a-vis, the loss that is suffered without his consent. Such suffering depriving one of his organs, that too, as a result of a road traffic accident or other incident for which some other person is held to be negligent or culpable can never be treated at par with a voluntary organ donation by a human being. Voluntary donation of an organ by a living human being is a conscious and consentual self deprivation of the highest order and a salutary sacrifice of pre-eminence. Deprivation of an organ as a result of negligence, by way of an actionable wrong, or as a result of the commission of an offence punishable in law is, not merely disablement, but also deprivation of the systemic efficacy of the human body and, consequently, of the mind M. A. C. A. Nos.249 & 276 of 2011 -3- as well. This notwithstanding, the deprivation of an organ, limb or life is an affront to the unsurrenderable and inexcusable constitutional right to life of every citizen in terms of Article 21 of the Constitution of India. Any infraction in that regard will also be violative of the doctrines relating to human rights recognized in the domain of civilized societies. Apart from that, the nephorologist who was in the team of the Medical Board of the Kottayam Medical College Hospital, deposing as PW1, denied the suggestion in cross examination that if one kidney is removed the remaining kidney can carry out the entire renal function. She specifically says that the total functioning disability is 75% and though the patient does not have any problem now, in future problems will be developed. She denied the suggestion that the claimant has no disability. We are also of the view that the insurer appears to be not aware of the scientific materials and data in the relevant domain regarding the multifarious risks of an organ donor. With the evidence on record, we do not find any justification to M. A. C. A. Nos.249 & 276 of 2011 -4- interfere with the impugned award at the instance of the insurer, even on the question of percentage of disability fixed. The insurer's appeal is hence repelled as wholly unfounded.
4. Onto the claimant's appeal, at the outset we may say that on the basis of the different materials evidencing the injuries and treatments, the compensation granted for pain and suffering needs to be enhanced. We grant him an additional compensation of 20,000/- over and above the amount of 30,000/- awarded by the Tribunal on that count. He is entitled to an amount of 10,000/- more towards loss of amenities. We grant it. Towards bystander's expenses, he was granted only 1,200/-. We grant him an additional amount of 3,000/- under this head. Coming to the question of loss of earnings and loss of earning power, we determine his loss of earnings to be at the rate of 3,500/- per month at the time of the accident instead of 3,000/- as done by the Tribunal. This means that the claimant is entitled to an amount of 500 x 6 = 3,000/- more towards loss of earnings M. A. C. A. Nos.249 & 276 of 2011 -5- during the period of six months for which he was found entitled to such relief by the Tribunal. The claimant was 28 years old at the time of the accident and his projected income to determine the loss of earning power can be taken as 5,500/-. He is entitled to an amount of 5,500 x 12 x 17 x 30/100, i.e., equal to 3,36,600/- as compensation for loss of earning power. It is so held and awarded accordingly. We do not find any ground to interfere with the compensation awarded by the Tribunal under any other heads.
In the result:
(i)the appeal by the insurer (M.A.C.A. No.249 of 2011) is dismissed;
(ii)the appeal of the claimant (M.A.C.A. No.276 of 2011) is allowed awarding the claimant additional compensation of 3,72,600/- (Rupees three lakh seventytwo thousand and six hundred only) with interest at the rate of 9% per annum from the date of institution of the claim petition till realisation. The insurer is directed to satisfy M. A. C. A. Nos.249 & 276 of 2011 -6- this appellate award within a period of two months from today.
(iii)Having regard to the very persuasive submission of the insurer's learned counsel in that regard, and having regard to the enhancement in compensation awarded above, to the claimant, we dissuade ourselves from imposing an order of costs against the insurer on its appeal.
Sd/-
THOTTATHIL B. RADHAKRISHNAN JUDGE Sd/-
BABU MATHEW P. JOSEPH JUDGE kns/-
The order dated 22.09.2015 passed on I.A. No.1321/2015 allowing corrections in the common judgment dated 20.12.2014 in M.A.C.A. Nos.249 and 276 of 2011 is appended.
Sd/- Registrar (Judicial) M. A. C. A. Nos.249 & 276 of 2011 -7-