IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 MACA.No. 607 of 2007 A --------------------------------------------- OPMV.288/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT:3RD RESPONDENT: --------------------------------------------- NEW INDIA ASSURANCE CO.LTD., IIND FLOOR, SWADESHABHIMANI COMPLEX, NEAR BUS STAND, NEYYATTINKARA, REP. BY ITS MANAGER. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN SRI.P.A.MOHAMMED ASHROF RESPONDENT(S): PETITIONER AND RESPONDENTS 1 & 2: ----------------------------------------------------------------------------------- 1. V.CATHERINE JOHN, W/O.JOHN, POZHIYOR KALLAMPOTTA PURAYIDAM, POZHIYORE P.O. 2. ARUMUGHAM ASSARI,THIRUVATHIRA, CHATHARAMPATHIKONAM,THANNIVILA, VEDIVECHANCOIL P.O.,BALARAMAPURAM. 3. T.RAJENDRAN, S/O.THANKAPPAN NADAR, THERIVILA PUTHEN VEEDU, NEAR MUDAVOORPARA, PALLICHAL P.O., NEYYATTINKARA. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 SRI.C.ANIL KUMAR FOR R2 & 3 SMT.A.K.PREETHA FOR R2 & 3 SRI.M.R.RAJESH FOR R2 & 3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2009, ALONG WITH MACA NO. 1519 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- MACA.NOS.607/07A & 1519/07A --------------------------------------------------- Dated this the 6th August, 2009 JUDGMENT K.M. Joseph, J. The Appeals being connected, they are disposed of by a common Judgment. MACA.No.607/07 is filed by the Insurance Company and MACA.No.1519/07 is filed by the petitioner. We refer to the appellant in MACA.No.1519/07 as the claimant and the appellant in MACA.No.607/07 as the insurer. 2. The claimant filed the petition under Section 166 of the Motor Vehicles Act. She has been awarded a total compensation of Rs.8,58,250/= with interest at 7.5 per cent. 3. The tribunal has awarded Rs.3,50,000/= towards future treatment. The claimant has filed the Appeal, feeling aggrieved by the tribunal limiting the amount of compensation towards future medical treatment to Rs.3,50,000/=. The insurer has filed the Appeal, feeling aggrieved by the award of Rs.3,50,000/= MACA.607 & 1519/07 A 2 towards future medical treatment. 4. Learned counsel for the insurer would point out that this is a case where there is no basis to award any amount towards future medical treatment. She would point out that on the basis of the disability certificate, the tribunal has already awarded a total sum of Rs.4,08,000/=, assessing the disability at 100 per cent. Ext.A12 is the Disability Certificate issued by the Medical Board. The tribunal found that the condition of the claimant is very severe. The main complaint of the claimant, of course, was that the claimant has lost the ability to hear. According to the claimant, she was a sewing mistress and was earning Rs.5,000/= per month. Thus, after awarding Rs.4,08,000/= towards permanent disability, learned counsel for the insurer would contend that there was no warrant at all for awarding any amount towards future medical treatment. She further points out the reasoning of the tribunal in the matter of award of Rs.3,50,000/=. The tribunal has found as follows: “From the facts and circumstances of the case, I am of the view that A13, the certificate MACA.607 & 1519/07 A 3 issued from the KIMS hospital cannot be ignored. The evidence shows that the only option available is to undergo cochlear implant surgery, which may require Rs.8,25,000/=, as per Ext.A13, if the same is to be performed in the KIMS hospital, which appears to be most convenient for the applicant. A young lady has been deprived of all her amenities and put to disability as above in the prima stage and even the wedded life is virtually spoiled. Future treatment is essential and the only reasonable course is to undergo surgery as stated above whether the same succeeds or not. No doubt, this involves much expense. Anyhow, the fact remains that compensation on account of permanent disability etc. has already been granted as above. So, it is not feasible to award Rs.8,25,000/= for future treatment as contended by the applicant. Yet in the interest of justice, it is quite essential to award a substantial amount for the purpose of future treatment. I am of the view that an amount of Rs.3,50,000/= is allowable on this count. The amount awarded as a whole comes to Rs.8,58,250/=.” MACA.607 & 1519/07 A 4 5. Thus, she points out that compensation on account of permanent disability had already been granted and it is not feasible to award Rs.8,25,000/= for future treatment. The tribunal has, however, proceeded to find that in the interest of justice, it is quite essential to award a substantial amount for the purpose of future treatment and Rs.3,50,000/= is awarded. In fact, learned counsel for the claimant would submit that the claimant is also aggrieved by this process of reasoning by which the quantum claimed by her is cut down from Rs.8,25,000/= to Rs.3,50,000/=. 6. Learned counsel for the claimant would, in fact, point out that Ext.A13 Certificate issued from the Cochlear Implant Surgeon Kims, would show that the amount of Rs.8,25,000/= is required for carrying out the treatment. But, apart from examining the husband of the claimant, there is no evidence. The person who issued Ext.A13 has not been examined. Learned counsel for the claimant would submit that the claimant MACA.607 & 1519/07 A 5 is prepared to adduce evidence in this matter. In view of the nature of the finding which we have adverted to, we feel that the question as to whether any amount has to be awarded towards future medical treatment and, if any amount has to be awarded, what is the quantum of the amount to be awarded, should be decided with an opportunity to the parties to adduce additional evidence. However, we see no reason why we should disturb the quantum fixed apart from Rs.3,50,000=. Thus, the upshot of this discussion is that both the Appeals are partly allowed and the Appeals are remanded back to the tribunal for deciding the issue as to whether after awarding Rs.4,08,000/=, taking 100 per cent disability, there is any warrant for awarding any amount towards future medical treatment and if any amount is liable to be awarded, what is to be the quantum of such amount. We make it clear that we are confirming the award of compensation in a sum of Rs.5,08,250/= with interest at 7.5 per cent as already awarded and we are only modifying the Award in so far as it relates to the award of Rs.3,50,000/=. The parties will appear MACA.607 & 1519/07 A 6 before the Motor Accidents Claims Tribunal, Neyyattinkara on 10.9.2009. The Appeals are allowed as above. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge