Partly allowed

The New India Assurance Co.Ltd. v. O.K.Azees

Kerala HC5 Nov 2013MACA/1820/2010

Case brief

AI extract

What is this about?

The High Court allowed the insurance company's appeal partly. It held that the Tribunal incorrectly assessed 100% disability instead of 55%. The Court recalculated 'loss of earning power' and enhanced 'loss of amenities' to set the total compensation at Rs. 5,70,210/-.

What did the court decide?

Compensation re-fixed to Rs. 5,70,210/- payable by the appellant within two months to the third respondent.

The New India Assurance Co.Ltd. Vs O.K.Azees — Insurance | 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 & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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TUESDAY, THE 5TH DAY OF NOVEMBER 2013/14TH KARTHIKA, 1935

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MACA.No. 1820 of 2010 (B)

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AGAINST THE AWARD IN OPMV 280/2007 of MACT, VADAKARA.

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APPELLANT(S)/3RD RESPONDENT:

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THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD ERNAKULAM, REP. BY ITS DEPUTY MANAGER.

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BY ADV. SRI.VPK.PANICKER

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RESPONDENT(S)/PETITIONER:

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1. O.K.AZEEZ, S/O.O.K.AYAMMED KUTTY HAJI, ODAKKAKUZHIYIL HOUSE, P.O.KUNNAMANGALAM KOZHIKODE DISTRICT-673 571.

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2. SUNIL B.K., S/O.SREEDHARAN, KEEZHOTH HOUSE, ELATHUR VILLAGE, CHETTIKULAM P.O.CHETTIKULAM, KOZHIKODE DISTRICT-673001.

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3. FIROS, AGED 24 YEARS, S/O.MOIDEEN, ARIF HOUSE, PALLIKKARA AMSOM DESOM P.O.PALLIKKARA, KOYILANDY TALUK-675 522.

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R1-2 BY ADV. SRI.JACOB ABRAHAM R3 BY ADV. SMT.K.V.RESHMI

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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S. Siri Jagan & K. Ramakrishnan, JJ.

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M.A.C.A. No. 1820 of 2010

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Dated this, the 5^th day of November, 2013.

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J U D G M E N T

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Ramakrishnan, J.

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The Insurance Company in O.P.(MV) No. 280/2007 on the file of the Motor Accidents Claims Tribunal, Vadakara, is the appellant herein. The 3^rd respondent herein filed an application for compensation for the injuries and consequential disabilities caused in a motor vehicle accident on account of the negligent driving of the vehicle by the 2^nd respondent, owned by the 1^st respondent and insured with the appellant. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the 2^nd respondent insured with the appellant and awarded a total compensation of Rs. 8,33,410/- on various heads as follows:

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Pain and suffering	Rs. 50,000/-
Transportation charges	Rs. 3,000/-
Incidental expenses and bystander’s expenses	Rs. 19,600/-
Review	Rs. 150/-
Medical bills	Rs. 21,660/-
Loss of amenities, mental agony, inconvenience	Rs. 15,000/-
Extra nourishment and future treatment	Rs. 10,000/-
Permanent disability and loss of earning power	Rs. 7,14,000/-
Total	Rs. 8,33,410/-

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Aggrieved by the quantum of compensation awarded, the appellant has filed this appeal before this Court.

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Heard counsel for the appellant and counsel for the 1^st

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M.A.C.A. No. 1820 of 2010 -: 2 :-

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respondent.

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Counsel for the appellant submitted that the 3^rd respondent was an autorickshaw driver and he claimed that he was getting a monthly income of Rs. 7,500/- and the Tribunal has taken Rs. 3,500/-, which itself is on the higher side. Further, the medical board assessed 55% disability, but the Tribunal has taken 100% disability and awarded an amount of Rs. 7,14,000/- under the head ‘loss of earning power’, which is unsustainable in law. In fact, he was capable of doing other works and the Tribunal has not taken that fact while awarding compensation under that head. The amounts awarded under the other heads are also on the higher side.

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On the other hand, counsel for the claimant submitted that he was aged 24 years and working as an autorickshaw driver and after the accident, he could not work as an autorichshaw driver since his occupational disability is 100%. So, the Tribunal was perfectly justified in taking his occupational disability as 100% and no interference is called for. Further, the 3^rd respondent was only aged 24 years, the proper multiplier applicable is 18 and not 17. So, the Tribunal has erred in favour of the Insurance Company and there is no necessity to interfere with the total compensation awarded, considering the injuries and disabilities sustained by the 3r respondent, which is just and proper.

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We have considered rival contentions of both

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M.A.C.A. No. 1820 of 2010

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-: 3 :-

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parties in detail.

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It is an admitted fact that the accident occurred at the time when the 3^rd respondent herein was driving his autorickshaw. So, the fact that he was an autorickshaw driver was proved by facts of this case itself. He had also produced Ext. A10 driving licence to prove that he is having valid licence and badge to drive the vehicle. So, considering these aspects, the Tribunal was justified in taking Rs.3,500/during 2006 as his monthly income, which cannot be said to be on the higher side. The disability certificate issued by the medical board shows that he is having 55% disability. The nature of disability mentioned are “post head injury sequalae - Ataxia - Moderate constraint, definite impairment to adaptation in social and industrial conduct, moderate adjustment required. General paresis moderate symptoms and adjustment ”. The doctor who issued this certificate was not examined to show that this will affect his earning capacity to the extent of 100%. Further, even though he is not able to do work as an autorickshaw driver, there will not be any bar for him to do some other work and to get some income for his livelihood. This has to be taken into consideration as a mitigating circumstance while considering the occupational disability of a person to award compensation under the head ‘loss of earning capacity.’ Further, there is no evidence to show as to whether he had renewed his driving licence or not. So, in the circumstances, the Tribunal was not justified in taking 100%

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M.A.C.A. No. 1820 of 2010

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-: 4 :-

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occupational disability to assess compensation under the head ‘loss of earning capacity.’ Considering the nature of injuries and disability mentioned, we are inclined to take the disability of 55% assessed by the medical board for assessing compensation under the head.

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There is some force in the submission made by the counsel for the 3^rd respondent that the proper multiplier applicable to the age group of 24 years as the 3^rd respondent was at the time of the accident, is 18 and not 17 as taken by the Tribunal in view of the dictum laid down in the decision reported in Sarla Verma v. Delhi Transport Corporation, 2010(2) KLT 802. If, a re-calculation is made on that basis, the 3^rd respondent will be entitled to get only Rs. 4,15,800/- (3500 x 12 x 18 x 55%) instead of Rs.7,14,000/- awarded by the Tribunal under the head ‘loss of earning capacity’. So, there is excess amount of Rs.2,98,200/- awarded under that head which will have to be deducted from the total amount. But the Tribunal has awarded only Rs. 15,000/- under the head ‘loss of amenities in life’. Considering the nature of disability narrated in Ext. C1 disability certificate and considering the age of the 3^rd respondent, this will have a great impact in his personal life. So, the amount of Rs. 15,000/- awarded by the Tribunal under the head loss of amenities in life’ is on the lower side, which we enhance to Rs. 50,000/-. So, the excess amount awarded by the Tribunal will be Rs. 2,63,200/-, which has to be deducted from the total amount of Rs. 8,33,410/-

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M.A.C.A. No. 1820 of 2010 -: 5 :-

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awarded by the Tribunal to arrive at the just compensation payable to the 3^rd respondent for the injuries and consequent disability suffered by him in the accident which will come to Rs. 5,70,210/-. So, we re-fix the compensation payable to the 3^rd respondent to Rs.5,70,210/- instead of Rs.8,33,410/- awarded by the Tribunal. The appellant Insurance Company is liable to pay this amount with interest awarded by the Tribunal within two months from today.

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With the above modification of the impugned award of the Tribunal, this appeal is partly allowed.

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Tds/

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[True copy]

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P.S to Judge.

The New India Assurance Co.Ltd. v. O.K.Azees

Case brief

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The New India Assurance Co.Ltd. v. O.K.Azees

Case brief

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