Kerala High Court
The Manager vs V. Catherine John on 23 March, 2012
Author: Pius C. Kuriakose
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 23RD DAY OF MARCH 2012/3RD CHAITHRA 1934
MACA.No. 2175 of 2010 (A)
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OPMV.288/2003 of M.A.C.T.,NEYYATTINKARA
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APPELLANT(S)/RESPONDENT NO.3:
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THE MANAGER, NEW INDIA ASSURANCE
COMPANY LTD., IIND FLOOR, SWEDESHABHIMANI COMPLEX
NEARS BUS STAND NEYYATTINKARA.
BY ADVS.SRI.KKM.SHERIF
SRI.A.A.ZIYAD RAHMAN
RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 AND 2:
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1. V. CATHERINE JOHN, W/O. JOHN,
POZHIYOOR KALLAMPOTTA PURAYIDOM, POZHIYOOR DESOM
POZHIYOOR.P.O., PIN-695513.
2. ARUMUGHAN ASARI, THIRUVANATHIRA,
CHATHRAMPATHIKONAM, THANNIVILA, VEDIVACHANCOIL.P.O
BALARAMPURAM-695132.
3. T. RAJENDRAN, S/O.THANKAPPAN NADAR,
THERIVILA PUTHEN VEEDU, NEAR MUDAVOORPARA
PALLICHAL DESOM, PALLICHAL.P.O., NEYYATTINKARA.
PIN-695020.
BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 23-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PIUS C. KURIAKOSE &
A. V. RAMAKRISHNA PILLAI, JJ.
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M. A. C. A No.2175 of 2010
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Dated this the 23rd day of March, 2012
JUDGMENT
Pius C. Kuriakose, J Under challenge in this appeal preferred by the Insurance Company is the award of ` 8,25,000/- by the Motor Accidents Claims Tribunal to the 1st respondent/claimant towards future treatment.
2. The one ground which is seriously raised in the memorandum of appeal is that the Motor Accidents Claims Tribunal having accepted the assessment of cent percent permanent hearing disability and having awarded disability compensation of ` 4,08,000/- on that basis is not justified in awarding ` 8,25,000/- towards future treatment i.e. for the conduct of cochlear implant surgery which is expected to restore the audibility of the 1st respondent in full.
3. The argument which was addressed before us by M. A. C. A No.2175 of 2010 -2- Sri.Ziyad Rahman was that if the operation is successful the payment of ` 8,25,000/- towards future treatment expenses and the sum of ` 4,08,000/- towards permanent hearing disability will amount to duplication.
4. Responding to a query put by us Sri.Pirappancode V.S. Sudheer, the learned counsel for the 1st respondent submitted that Doctors have assured the 1st respondent of 90% success in the prospective surgery.
5. We notice merit in the submission of Sri.Ziyad Rahman that awarding disability compensation on the basis that the 1st respondent suffered cent percent permanent hearing disability and allowing her ` 8,25,000/- for the conduct of a surgery which will restore her audibility in full will amount to double payment.
6. Under the above circumstances, we are inclined to grant relief to the appellant Company to a certain extent. We therefore dispose of the appeal in the following terms:-
1) The appellant/Company is directed to deposit the entire award amount of ` 8,25,000/- awarded under the M. A. C. A No.2175 of 2010 -3- impugned award towards future treatment before the Motor Accidents Claims Tribunal less ` 4,08,000/- already paid towards disability compensation within a period of two months from today. The 1st respondent will be entitled to receive the above amount to be deposited immediately.
Within six weeks of receiving the amount, the surgery (cochlear implantation) shall be got done and the 1st respondent shall appear before the Motor Accidents Claims Tribunal after the period of convalescence with records pertaining to the surgery done and the Doctors report regarding the success achieved in the surgery. If the medical reports reveal that the surgery was completely successful and the audibility of the 1st respondent has been restored the appellant will not be liable to make further deposit. However if full success is not achieved, depending on the rate of success achieved in the surgery it will be open to the Motor Accidents Claims Tribunal to pass appropriate orders directing deposit of the balance amount of ` 4,08,000/- or portions thereof, before the Motor Accidents Claims Tribunal. M. A. C. A No.2175 of 2010 -4-
The appeal is allowed as above. No costs.
Sd/-
PIUS C. KURIAKOSE JUDGE Sd/-
A. V. RAMAKRISHNA PILLAI JUDGE kns/-
//TRUE COPY// P.A. TO JUDGE