Allowed

Valsan A.K. v. the New India Assurance Co.Ltd.

Kerala HC15 Nov 2013MACA/1188/2011

Case brief

AI extract

What is this about?

This appeal challenged the quantum of compensation awarded by the Motor Accidents Claims Tribunal to a paraplegic mason insured by the respondent. The Court recalculated loss of earning capacity based on 100% disability, adjusted compensation for loss of amenities, pain and suffering, and future expenses.

What did the court decide?

Additional compensation of Rs.1,61,600/- granted, with interest at 9% per annum on specified components, and future expenses fixed at Rs.50,000/- without interest.

Valsan A.K. Vs the New India Assurance Co.Ltd. — Motor Accident Claims | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN &

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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FRIDAY, THE 15TH DAY OF NOVEMBER 2013/24TH KARTHIKA, 1935

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M.A.C.A.No. 1188 of 2011 ( )

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AGAINST THE AWARD IN OP(MV) 1748/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,PERUMBAVOOR DATED 29-03-2011 APPELLANT(S):

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VALSAN.A.K,AGED 32 YEARS, S/O.KUMARAN, APPILLY HOUSE, KUZHIYAMPADAM BHAGAM, NADUVATTAM KARA, MANJAPRA P.O, MANJAPRA VILLAGE, ALUVA TALUK.

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BY ADVS.SRI.GOPAKUMAR G. (ALUVA) SMT.ANUPAMA JOHNY

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RESPONDENT(S):

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THE NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, KODAVATH SHOPPING COMPLEX SUB JAIL ROAD, ALUVA 683 101.

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R1 BY ADV. SRI.M.RAJAGOPALAN R1 BY ADV. SRI.RAJIT

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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S.Siri Jagan & K. Ramakrishnan, JJ

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==============================

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M.A.C.A.No.1188 of 2011

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=============================== Dated this, the 15^th day of November, 2013.

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J U D G M E N T

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Siri Jagan, J.

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An unfortunate young man, who became a paraplegic on account of the injuries suffered by him in an accident caused by the negligent driving of a vehicle insured with the respondent, is the appellant herein. He filed OP(MV) No.1748/2006 before the Motor Accidents Claims Tribunal, Perumbavoor, claiming compensation for the injuries and consequent disabilities sustained by him in the accident. The Tribunal, after finding the negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows:

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Head of Claim	Amount Awarded (in Rupees)
Compensation for Loss of earning	24,000
Partial loss of earnings	12,000
Transport to Hospital	1,000
Extra nourishment	4,000
Damage to clothings etc	250
Bystander expenses	15,700
Medical expenses	1,48,796
Pain and suffering	40,000
Loss of amenities etc	20,000
Disability	5,18,400
Total	7,84,146.00

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Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal seeking enhanced compensation.

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The first contention raised by the appellant is regarding the income and the percentage of disability adopted by the Tribunal for calculating the loss of earning capacity. The accident was on 24.1.2006. The appellant was aged 32 years at that time. He was a mason by profession. He claimed that he was earning an income of Rs.5,000/- per month. But the Tribunal fixed the monthly income only as Rs.3,000/-, which is on the lower side is the contention raised by the appellant. The counsel for the appellant would contend that in Ext.X1 disability certificate obtained by the court by referring the appellant to a medical board, although 90% physical disability was certified, loss of earning capacity was certified to be 100% and insofar as he became a paraplegic as a result of the injuries suffered by him in the accident, the Tribunal ought to have calculated loss of earning capacity taking 100% disability, is the contention regarding percentage of disability. It is submitted that the appellant was in hospital for 157 days and and he was in acute pain all along, despite which, the Tribunal awarded only Rs.40,000/towards pain and suffering. Lastly it is contended that despite the fact that the appellant practically has no future enjoyment in his life, the Tribunal awarded only Rs.20,000/- towards loss of amenities in life.

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On the other hand, the learned counsel for the Insurance Company points out that if 100% of disability is taken for the purpose of calculating loss of earning capacity then the appellant is not entitled to loss of earnings and partial loss of earning for which together, the Tribunal had awarded Rs.36,000/-. It is further submitted that the Tribunal considered every aspect of the matter in the right perspective and awarded just and proper compensation under all heads, which does not require any interference at the hands of this court.

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We have considered the rival contentions in detail.

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Considering the fact that the accident was in 2006 and

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the appellant was a mason by profession aged 32 years, we are not inclined to enhance the monthly income in so far as in the year 2006, monthly income of Rs.3,000/- for a mason cannot be stated to be on the lower side in the absence of any evidence regarding the income of the appellant. But insofar as he had became a paraplegic as a result of the injuries in the accident, loss of earning capacity undoubtedly is 100%. If compensation is calculated on these parameters, for loss of earning capacity, the appellant is entitled to Rs.5,76,000/- (3000x12x16x100%) instead of Rs.5,18,000/- awarded by the Tribunal as compensation. The difference would be Rs.57,600/-. But, as pointed out by the counsel for the Insurance Company, if compensation for loss of earning capacity is awarded for 100% from the date of the accident,

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separately no loss of earnings can be awarded. Therefore, the amount of Rs 36,000/- awarded towards loss of earnings and partial loss of earnings has to be deducted from the said amount. Consequently, the additional compensation the appellant would be entitled for loss of earning capacity is only Rs.21,600/-. But insofar as the appellant would be confined to bed for the rest of his life and he would be leading the life of a vegetable, we are inclined to enhance the compensation for loss of amenities to Rs.1,00,000/from Rs.20,000/-. We are also inclined to enhance compensation for pain and suffering to Rs.50,000/- from Rs.40,000/-. The appellant is entitled to compensation for a bystander for the future also, apart from the expenses for a bystander during the period of hospitalization. He will also require some future medical treatment as well. For both these together, we fix the compensation as Rs.50,000/-. We are not inclined to enhance compensation under the other heads, since we are of opinion that the amount of compensation awarded by the Tribunal under those heads is just and proper.

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Resultantly, the appellant would be entitled to additional compensation of Rs.1,61,600/- over and above what has been awarded by the Tribunal, out of which the amounts other than the compensation for future bystander expenses and for future treatment expenses would carry interest at the rate of 9% per annum from the date of the claim petition till date of payment.

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Rs.50,000/- awarded for future bystanders expenses and future treatment expenses together, will not carry any interest. The respondent Insurance Company is directed to deposit this amount also within two months.

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With the above modification of the impugned award, the appeal is disposed of.

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Sd/- S. Siri Jagan, Jugde.

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Sd/ K.Ramakrishnan, Judge.

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[True copy]

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P.A to Judge

Valsan A.K. v. the New India Assurance Co.Ltd.

Case brief

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Valsan A.K. v. the New India Assurance Co.Ltd.

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