Kerala High Court
Royal Sundaram Alliance Insurance ... vs Sarath Kumar (Minor) on 3 November, 2017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
FRIDAY, THE 3RD DAY OF NOVEMBER 2017/12TH KARTHIKA, 1939
MACA.NO.342 OF 2013 ()
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AGAINST THE AWARD IN O.P.(M.V.) NO.1639/2010 OF THE ADDITIONAL MOTOR
ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM
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APPELLANT(S)/ 3RD RESPONDENT :
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ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED,
ERNAKULAM, NOW REPRESENTED BY ITS MANAGER,
SUBRAMANIAM BUILDING, CLUB HOUSE ROAD,
ANNASALAI, CHENNAI-600 002.
BY ADVS.SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENT(S)/PETITIONER:
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SARATH KUMAR (MINOR)
NOW REPRESENTED BY HIS FATHER SHYAMKUMAR,
S/O.BALAN, REVATHY HOUSE,
CHEPPALATHPARAMBU BHAGOM,
PARAYIL LANE-5, PADAM ROAD,
ELAMAKKARA, KOCHI-682 026.
R1 BY ADV. SRI.V.R.REKESH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03-11-2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
NS
P.D. RAJAN, J.
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M.A.C.A. No.342 of 2013
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Dated this the 3rd day of November, 2017
J U D G M E N T
This appeal is preferred against the award in O.P.(M.V.) No.1639 of 2010 of the Additional Motor Accidents Claims Tribunal, Ernakulam by the insurer. One Sarath Kumar, who is a minor, sustained injuries in a motor accident on 04.08.2010 at 5.45 p.m., and the learned tribunal awarded an amount of Rs.67,332/- (Rupees Sixty Seven thousand three hundred and thirty two only) with interest and cost as compensation. The appellant insurance company was directed to satisfy the award. Being aggrieved by that, the insurer preferred this appeal.
2. Injured's case in the lower court was that on 04.08.2010 at 5.45 p.m., while he was riding a bicycle along Punnakkal-Perandoor public road and when he reached at Elamakkara, a lorry bearing registration No.KL-7/AX-4732 driven in a rash and negligent manner knocked down him as a result, he sustained serious M.A.C.A. No.342 of 2013 2 injuries. Immediately he was removed to hospital. The driver and owner of the vehicle were set ex parte. The insurer admitted the insurance of the vehicle. The injured did not adduce any oral evidence, but his documents were marked as Exts.A1 to A12.
2. Learned counsel appearing for the appellant contended that the tribunal already awarded Rs.45,532/- (Rupees forty five thousand five hundred and thirty two only) for treatment expenses. The injured had obtained a mediclaim policy under which, the Star Insurance Company, reimbursed the entire treatment expenses to him, hence claiming additional amount from the insurer is unsustainable in law. The learned counsel relied the decision reported in National Insurance Company Ltd. v. Akbar Badsha 2015 (4) KLT 442.
3. Ext.A3 is the wound certificate issued from Medial Trust Hospital, Ernakulam. The details of the injuries show that the injured sustained bleeding through nose, abrasion on the left side of chest both knees, lacerated wound on the right index finger, fracture right tempero parietal region pneumocephalus. C.T. Scan brain M.A.C.A. No.342 of 2013 3 shows fracture of the right tempero parietal region, pneumocephalus. Ext.A12, the discharge summary issued from the Department of Micro Vascular Surgery, Medical Trust Hospital, Ernakulam shows that there was fracture right tempero parietal region, pneumocephalus and conservative treatment was done in the Plastic Surgery department.
4. Apex court in Rajkumar v. Ajay Kumar and Anr. [2011 ACJ 1] held that the injured in a motor accident claim petition is entitled to get just amount of compensation, which reads as follows:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity.
To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning M.A.C.A. No.342 of 2013 4 capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.
5. Considering the nature of injuries sustained, this Court is of the opinion that a meagre amount was awarded by the tribunal on various heads. In National Insurance Company Ltd. v. Akbar Badsha 2015 (4) KLT 442, this Court overruled the decision relied by the court below in National Insurance Company Ltd. V. V.S. Bijumon and Ors. [2011 (2) KLT 20]. In the above decision, the claim received and the mediclaim policy were not considered while awarding compensation. The above proposition made by the Court in National Insurance Company Ltd. V. V.S. Bijumon and Ors. [2011 (2) KLT 20] was overruled and the arguments advanced by the insurance company were upheld and held that the treatment expense satisfied by availing mediclaim policy has to reckoned while fixing the quantum of compensation. In National Insurance Company Ltd. v. Akbar Badsha 2015 (4) KLT 442, it M.A.C.A. No.342 of 2013 5 was held as follows:
"We are in full agreement with the views expressed by the Division Bench of the Karnataka High Court, New India Assurance Company Ltd. v. Manish Gupta & Ors. (2013) (1) Karnataka Law Journal 624) and hod that the very purpose of insurance is to see that un-anticipated risk is covered to the extent necessary, lest there should be any loss to the party concerned because of the unforeseen contingency which occurred during the policy period. As it stands so, if a party sustains damage in respect of a vehicle or was made to spend a certain amount for availing treatment in connection with the injuries and if the said amount is satisfied by the insurer under a separate policy issued in this regard (of course based on premium collected separately for the sum assured) the same is labile to be reckoned for fixing the quantum of compensation payable under the MV Act and if only a finding is rendered that loss is still there, could it be compensated to the requisite extent. To put it more clear, if the party has obtained only a lesser amount under the 'Mediclaim Policy' taken by him (paying premium separately) the balance amount, if any, could very well be claimed in the claim petition to be preferred before the Tribunal with reference to the statutory coverage."
6. The injured claimed Rs.10,000/- for Medical Expenses, but the learned tribunal awarded Rs.45,532/- in view of the decision reported in National Insurance Company Ltd. V. V.S. Bijumon and Ors. [2011 (2) M.A.C.A. No.342 of 2013 6 KLT 20]. Hence the amount awarded under mediclaim policy has also to be considered by the tribunal while awarding compensation under medical expenses. The respondent sustained serious head injuries. The amount awarded by the tribunal under the heads of pain and sufferings, loss of amenities etc. are also very low. In the circumstances, the finding of the tribunal awarding compensation of Rs.45,532/- (Rupees forty five thousand five hundred and thirty two only) for treatment expenses is hereby set aside and the matter is remitted to the trial court for fresh consideration in view of the decisions rendered by the apex court in Rajkumar v. Ajay Kumar and Anr. [2011 ACJ 1] and a Division Bench of this Court in National Insurance Company Ltd. v. Akbar Badsha 2015 (4) KLT 442. Both parties are directed to appear before the tribunal on 12.01.2018. The learned tribunal shall dispose of the matter as per law within three months from the date of appearance of the parties.
Sd/-
P.D. RAJAN,
JUDGE
/ True Copy /
NS P.A. To Judge