Kerala High Court
National Insurance Company Limited vs Laveen Luiz
Bench: P.R.Ramachandra Menon, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 5TH DAY OF JANUARY 2016/15TH POUSHA, 1937
MACA.No. 636 of 2011
-------------------------
AGAINST THE AWARD INDATED 2295/2006 of M.A.C.T.,ERNAKULAM
OPMV
15-11-2010
APPELLANT/3RD RESPONDENT:
---------------------------
NATIONAL INSURANCE COMPANY LIMITED,
TRIPUNITHURA NOW REPRESENTED BY ITS MANAGER,
KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD,
KOCHI-35.
BY ADVS.SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENT :
-------------
LAVEEN LUIZ, S/O.LANCY LUIZ,
CHERUPUNNATHIL HOUSE, 'LAYAM', JANATHA ROAD SOUTH,
VYTTILA P.O., PIN-682 019.
BY ADV. SRI.ANIL S.RAJ
BY ADV. SMT.K.N.RAJANI
BY ADV. SRI.G.ARUN GOPAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
05-01-2016, ALONG WITH MACA. 767/2011, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
------------------------------------------------------------------
M.A.C.A.Nos.636 & 767 of 2011
------------------------------------------------------------------
Dated this the 5th day of January, 2016
JUDGMENT
Ramachandra Menon, J.
These appeals have been preferred by the insurance company contending that the amounts awarded by the Tribunal in respect of the injuries sustained by the claimants in the concerned cases are much on the higher side; thus seeking to have it scaled down to an appropriate extent.
2. The respondent in M.A.C.A.No.636/2011 and respondent in the other M.A.C.A.No.767/2011 were proceeding on the motor cycle bearing No.KL-7/AD 6846, which was being ridden from the South to the North along the Vaikom- Tripunithura road. The respondent in the former case was on the pillion of the motor cycle which was being ridden by the respondent in the other appeal. While so, on 07.07.2006, when the vehicle reached the spot of occurrence, the bus bearing No.KL.7/H-4827 owned, driven and insured by the respondents 1 to 3 before the Tribunal coming from the opposite direction, that M.A.C.A.Nos.636 & 767 of 2011 2 is, from the North to South, dashed against the motor cycle throwing them down and causing serious injuries, which was sought to be compensated by filing separate claim petitions before the Tribunal.
3. The 1st and 2nd respondents before the Tribunal did not choose to contest the matter and were set exparte. The matter was contested by the appellant/insurance company, on general grounds, on the principle of quantum and negligence. The evidence adduced before the Tribunal consists of Exts.A1 to A17 produced and marked from the side of the claimant in the former case and Exts.A18 to A25 produced and marked from the side of the claimant in the other case. Based on the available materials on record, the Tribunal arrived at a finding that the bus was completely on the wrong side and that the accident was only because of the negligence on the part of the driver of the bus.
4. Coming to the quantum of compensation, the Tribunal observed that the claimants were pursuing their studies for a professional course, being B.Tech students. The claimant in the former case was pursuing his studies in the 3rd semester for M.A.C.A.Nos.636 & 767 of 2011 3 Electronics and Communications Engineering, whereas the claimant in the other case was pursuing his studies in the 4th semester for B.Tech. It is stated that the claimants could not pursue their studies because of the seriousness of the injuries and longer extent of hospitalization and they lost their academic year, which hence is also sought to be compensated. The injuries sustained by the claimant in the former case are mainly fracture to the right femur and fracture to the right tibia and fibula, plus such other injuries including abrasions. In respect of the claimant in the other case, there was a fracture to the nasal bone and fracture to the right tibia and fibula, plus such other injuries. The hospitalization in the former case was to an extent of 69 days, whereas in the other case, it was 21 days. The medical expenses in the former case is to an extent of 2,46,460/-, whereas in the other case, it is 1,02,295/-.
5. For convenience of reference, the amounts awarded by the Tribunal under different heads in both the cases are extracted below:-
M.A.C.A.Nos.636 & 767 of 2011 4 M.A.C.A.No.636/2011 Heads of the claim Amount claimed Amount awarded (in (in .) .) Transportation expenses 15000 4000 Extra nourishment 20000 5000 Attendance expenses 20000 15000 Medical Expenses 246460 vide Exts.A14 300000 & 15 bills Damage to clothing 2000 and articles 500 Compensation for pain and sufferings 150000 50000 Compensation for loss of amenities and enjoyment of life 200000 40000 Compensation for loss of one academic year 100000 50000 Total 410960 M.A.C.A.No.767/2011 Heads of the claim Amount claimed Amount awarded (in (in .) .) Transportation 10000 expenses 5000 Extra nourishment 10000 2500 Attendance expenses 15000 4000 Medical Expenses 200000 102295 vide Ext.A23 bills Damage to clothing 2000 and articles 500 M.A.C.A.Nos.636 & 767 of 2011 5 Heads of the claim Amount claimed Amount awarded (in (in .) .) Compensation for pain 100000 and sufferings 20000 Compensation for loss 100000 of amenities and enjoyment of life 15000 Compensation for loss 50000 of one academic year 50000 Total 199295
6. Heard the learned counsel for the appellant/insurer as well as the learned counsel appearing for the claimants in both the cases.
7. The learned counsel for the appellant vehemently argued that the amounts awarded by the Tribunal are quite excessive; particularly in respect of the heads 'pain and suffering', 'loss of amenities and enjoyment in life' and further that no proof has been produced as to the loss of one year warranting compensation to an extent of 50,000/- in both the cases. But the fact remains that the documents were produced from the part of the claimants, Ext.A17 by the claimant in former case and Ext.A24 by the claimant in the other case reveal the loss of studies for one Academic year. It has to be borne in mind M.A.C.A.Nos.636 & 767 of 2011 6 that the hospitalization itself was to an extent of 69 days and 21 days respectively and by virtue of the nature of injuries sustained, they had to continue at home, taking rest, to have complete recovery before proceeding to pursue their studies in the college. It is also quite known that, unless the students are having the requisite extent of attendance, they will not be permitted to participate in the terminal examinations for the concerned academic session and the position will be more stringent, when it comes to the professional courses like B.Tech, which was being pursued by the claimants. The claimants were made to lag behind, losing one year, which was only because of the injuries sustained in the accident. It is also relevant to note that no compensation has been awarded by the Tribunal towards any permanent disability and the amounts awarded are mainly in respect of pain and suffering, loss of amenities and enjoyment in life, besides the compensation for loss of one academic year. This Court does not find anything arbitrary or illegal in the course pursued by the Tribunal and in fixing the quantum of compensation payable.
M.A.C.A.Nos.636 & 767 of 2011 7
8. Coming to the submissions made by the learned counsel for the appellant as to the negligence, that, atleast a portion of the liability should have been mulcted on the rider of the motor cycle towards contributory negligence, it is pertinent to have a look at the place of occurrence. The road is lying North to South, the bus was proceeding from the North to the South, whereas the motor cycle was coming from the South to the North. The spot of occurrence is 1.49 metres to the East from the Western tarred end of the road. This clearly reveals that the motor cycle was proceeding along the proper/correct side of the road, whereas the bus, which was being driven by the 2nd respondent, was completely on the wrong side. As such, there is absolutely no room for fixing any contributory negligence on the part of the rider of the motor cycle. This being the position, the fixation of negligence completely on the driver of the bus, in turn fixing the liability to pay compensation on the respondents before the Tribunal, is perfectly within the four walls of the law and is well supported by the pleadings and evidence on record. M.A.C.A.Nos.636 & 767 of 2011 8 We do not find any reason to interfere with the awards passed by the Tribunal. The appeals fail and they are dismissed accordingly.
Sd/-
P.R.RAMACHANDRA MENON, JUDGE Sd/-
ANIL K.NARENDRAN, JUDGE skj True copy P.A to Judge