IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 MACA.No. 353 of 2003 ---------------------- OPMV.1829/1997 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL APPELLANT/3RD RESPONDENT: --------------------------------------- UNITED INDIA INSURANCE COMPANY LIMITED, THIRUVELVELI, NOW REPRESENTED BY ITS ADMINISTRATIVE OFFICER, THIRD PARTY CLAIMS CELL, M.G.ROAD, KOCHI-16. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE RESPONDENTS: APPLICANT AND RESPONDENTS 1 AND 2: ------------------------------------------------- 1. V.KRISHNAN NAIR, S/O. VELAYUDHAN PILLAI, BINDU BHAVAN, EDAKKODU, KORANI POST, ATTINGAL. 2. S.S.MALIGAI, NO.1, MELA OORANI LANE, KARAIKUDI, P.M. DISTRICT, TAMIL NADU. 3. S.S.SUDALAIMANI @ GOVINDARAJAN, S/O. SELLADURAI NADAR, MAIN ROAD, KAVALKINARU, TAMIL NADU. ADV. SRI.V.PHILIP MATHEW FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 353/2003 I.A. 3698/2003 - CLOSED. I.A. 1792/2003 // DISMISSED // 22.12.2009. SD/-, P.R. RAMAN, JUDGE. SD/-, P.R. RAMACHANDRA MENON, JUDGE. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = M.A.C.A. NO. 353 OF 2003 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 22ND DAY OF DECEMBER, 2009. J U D G M E N T Raman, J. This is an appeal filed by the United India Insurance Company who is the third respondent in O.P. (MV)1829/1997 on the file of the Motor Accidents Claims Tribunal, Attingal. The first respondent herein was the claimant before the Tribunal who sustained serious injuries in a motor accident on 31.1.1997. He was employed in the Rubber Board as a Grade II Assistant. In connection with his employment, he was travelling in a trekker owned by the first respondent in the claim petition, which hit against a culvert resulting in the accident. The trekker was driven by the second respondent in the claim petition and it was alleged that the accident occurred as a result of the negligence on the part of the driver of the trekker. A sum of Rs. 9 lakhs was claimed as compensation against the driver and owner and also the insurer, jointly and severally. 2. The Tribunal found that the accident was due to the negligence on the part of the trekker driver and quantified the compensation payable to the claimant under different heads. A total amount of MACA 353/2003 2 Rs.4,00,682/- was awarded under different heads along with interest at 9% per annum from 15.11.1997 till realisation. Inter alia contending that the compensation awarded under some of the heads is excessive, this appeal has been preferred by the Insurance Company. 3. We have heard both the sides. In so far as the finding on negligence is not seriously challenged, the only point that arises for consideration is regarding the quantum awarded. The learned Senior Counsel Sri. Mathew Jacob appearing on behalf of the Insurance company points out that an amount of Rs. 1,30,478/- was awarded for permanent disability. The Tribunal has shown as to how this amount was worked out, which included the leave salary as also value of the earned leave, compensation for loss of earning (while he had availed earned leave) etc. On a perusal of the Award, we find that an amount of Rs. 95,198/- was awarded as loss of income including the value of earned leave taken, Rs. 15,000/- for transportation to the hospital, Rs. 5,000/- for extra nourishment, Rs. 500/- for damages to clothing, Rs. 14,000/- for bye-stander's fee, Rs.10506/- for medical expenses and Rs. 30,000/- for pain and suffering. Thus, while awarding Rs. 95,198/- as loss of income, it has already included the loss of income including the value of earned leave and hence, there is a duplication of Rs. 69,653/-. But the learned counsel Sri. Philip MACA 353/2003 3 Mathew, appearing on behalf of the first respondent/ claimant contended that though there may be a duplication under this head, the amounts awarded under other heads are inadequate, that compensation is not awarded under certain other heads and if the totality of the compensation awarded is taken, it can be seen that what has been awarded is only just and reasonable. Even if the compensation awarded under any particular head is found to be in excess, it is the totality of the compensation that has to be taken into account and ultimately it has to be decided whether any deduction from the compensation already awarded should be made or whether the award impugned should be sustained. 4. In this connection, it is to be noted that even after the initial treatment, the claimant had undergone several surgeries and continued with the treatment under different hospitals and expended huge amount towards post award treatment. He has produced along with I.A. 3698/2004 and I.A. 786/2007 certain bills and vouchers issued from the hospital, evidencing payments towards post award treatment. Annexure A1 to A6 to I.A. 3698/2004 are the bills produced. Annexure - 7 is the medical certificate issued by Dr.S. Mahesh Kumar MS (Ortho), Orthopedic Surgeon, Government Hospital, Thiruvananthapuram. Ext.A7 would show that the first respondent/claimant was under treatment for chronic osteomyelitis left MACA 353/2003 4 femur with multiple discharging sinuses, that he sustained this injury on 31.1.1997 due to a road traffic accident, that he had treatment from various hospitals, that he underwent internal fixation and interlocking nailing of the fracture in Medical College Hospital, Trivandrum, that the implants got infected and he developed osteomyelitis with discharging sinuses and he underwent sequestrectomy and debridement followed by prolonged antibiotic treatment for the condition; but as his fractures are still un-united the implants cannot be removed completely. As per the certificate, the first respondent has to undergo another major surgery in the form of radical debridement, removal of all infected and dead bone, removal of infected intra medullary nail and external fixation followed by bone grafting and treatment of osteomyelitis by Illizerov's method, which only will give him a reasonable cure and that the treatment involves a big financial commitment from the part of the patient as well as long period of hospitalization. The certificate was issued on 23.3.2004. Annexure A1 is a discharge bill issued by the GG Hospital, Thiruvananthapuram, which will show that he was admitted in the hospital as an in-patient for the period from 7.7.2004 to 13.7.2004. Annexure 1 bill is for an amount of Rs. 12,408.51. Annexure 2 is a medical bill for Rs.492.10. Annexure 3 is a duplication since he has already included the consultation fee given to the doctor even in Annexure MACA 353/2003 5 1. Annexure 4 has been given credit to in Annexure 1. Annexure 5 is a bill issued by SP Fort Hospital, dated 14.10.2004. An amount of Rs. 16,625/- is the total amount as per the said bill. Annexure 6 series are bills for purchase of medicines issued by the SP Fort Hospital and from various other medical shops, which is not seen included in Annexure 5. Likewise, he has produced Annexure 1 to Annexure 8, along with I.A. 786/2007. Annexure 1 is the discharge summary issued by G.G. Hospital, Thiruvananthapuram, which shows that the first respondent was admitted in the said hospital on 17.9.2006 and was discharged on 20.9.2006. Though it was contended by the learned counsel appearing for the Insurance Company that the bills referred by Annexures 2 to 11 produced along with I.A. 786/2007 are not for treatment in connection with the injury sustained in the accident, but it is only for a fall while undergoing the treatment, we find that no counter affidavit as such is filed. Further, the nature of the injuries suffered in the accident, the treatment he has already undergone and the post award treatment necessitated as a result of the subsequent infection - all would show that the fall is not totally unconnected with the accidental injury and because of the disability suffered, the fall which happened during treatment and while he was under rest, is only a natural course of event. Considering the totality of the circumstances and taking MACA 353/2003 6 into consideration the various bills produced, we consider that the first respondent is entitled to be awarded an amount of Rs. 49998/- which is rounded to Rs. 50,000/- towards post award treatment. 5. It is further contended by the Insurance Company that an amount of Rs. 1,00,000/- has been paid towards loss of amenities. Even after considering the nature of the injuries sustained by the first respondent and the various treatment involving surgeries undergone by him, the compensation awarded is still on the higher side. In the circumstances, we sustain an amount of Rs. 70,000/- towards loss of amenities as against Rs. 1,00,000/- awarded. We find that towards transportation to the hospital on various occasions, an amount of Rs. 15,000/- is already awarded. But considering the post award treatment, he is found to be entitled for some more amount towards transportation for such treatment undergone during the post-award period. Hence we award an amount of Rs. 10,000/- towards transportation charges under this head. As against the claim of Rs. 30,000/- only a sum of Rs. 14,000/- is awarded as by-stander expenses. We award an amount of Rs. 3,000/- more under this head. 6. In the result, the total compensation awarded is reduced by Rs. 36,653/-, rounded to Rs. 36650/-. Since the principal amount has been MACA 353/2003 7 deposited, the balance amount refundable to the Insurance Company will be set off against the interest payable and the balance of interest will be deposited by the Insurance Company. 7. Even though the learned counsel for the Insurance Company submitted that 9% interest awarded is on a higher side, considering the fact that at the relevant time when the award was passed, the interest payable was 9% as per the decision of the Apex Court in Kaushnuma Begum v. New India Assurance Co. Ltd. (2001(1) KLT 408), we do not propose to alter the rate of interest. 8. It is now pointed out by the learned counsel appearing on behalf of the appellant that at the time of the accident, the trekker driver who is the second respondent in the claim petition had no valid licence and badge and in spite of steps taken he remained exparte and did not produce the same. Therefore, he prays that an adverse inference may be drawn. When it is specifically urged in the written statement filed by the Insurance Company that the second respondent did not have a valid licence and badge and in spite of steps taken, the same was not produced, necessarily an adverse inference is to be drawn against the driver and the owner. Since this is a violation of the policy condition, though the Insurance Company is primarily liable to deposit the amount, they are entitled to recover the same MACA 353/2003 8 from the driver and the owner. Accordingly, the Insurance Company is given an opportunity to proceed to recover the amount awarded from the driver and owner of the vehicle in question by taking appropriate steps in accordance with law. In the result, the appeal is allowed in part. No costs. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, (JUDGE) KNC/- MACA 353/2003 9 P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. M.A.C.A. 353 of 2003 J U D G M E N T DATED: 22.12.2009