Partly allowed

The Oriental Insurance Co.Ltd v. Vivek.R.

Kerala HC20 Nov 2013MACA/660/2011

Case brief

AI extract

What is this about?

Appeal against MACT award of compensation for motor accident injuries. Court held the Tribunal erred in multiplier application and future treatment award. Reduced compensation by correcting calculation errors while leaving other heads intact.

What did the court decide?

Appeal allowed in part. Compensation reduced from ₹25,99,267 to ₹23,15,539 by correcting multiplier and reducing future treatment head.

The Oriental Insurance Co.Ltd Vs Vivek.R. — 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 &

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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WEDNESDAY, THE 20TH DAY OF NOVEMBER 2013/29TH KARTHIKA, 1935

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MACA.No. 660 of 2011

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AGAINST THE AWARD IN OP(MV)NO. 603/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM DATED 27-10-2010

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APPELLANT(S)/3RD RESPONDENT:

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THE ORIENTAL INSURANCE CO. LTD., THIRUVANANTHAPURAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.

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BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)

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RESPONDENT(S)/CLAIMANT:

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VIVEK P., S/O.RAMACHANDRAN NAIR, RAM NIVAS, KALADISOUTH, KARAMANA P.O., THIRUVANANTHAPURAM, PIN-695 002.

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BY ADVS. SRI.R.GOPAN SRI.SHAJIN S.HAMEED

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.

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M.A.C.A. No.660 of 2011

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Dated this the 20^th day of November, 2013

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J U D G M E N T

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K. Ramakrishnan, J

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Insurance company / 3^rd respondent in O.P. (M.V.).No.603/2005 on the file of the Motor Accidents Claims Tribunal, Thiruvnanthapuram is the appellant herein. Respondent herein filed the application for compensation for the injuries and consequential disabilities suffered by him in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by its driver 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 its driver insured with the appellant and awarded a total compensation of 25,99,267/- on various₹ heads as follows:

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M.A.C.A. No.660 of 2011

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Sl.	Head of claim	Amount
No.		awarded₹
1	Medical and miscellaneous expenses	2, 97, 339
2	Transportation	15, 000
3	Bystander's expenses	5, 200
4	Extra nourishment	30, 000
5	Damage to clothing	250
6	Loss of earning	1, 44, 360
7	For pain and suffering	1, 00, 000
8	For continuing disability and for loss of earning power	15, 07, 118
9	For loss of amenities and future treatment	5, 00, 000
	Total	25, 99, 267

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

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We have heard counsel for both parties.

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The counsel for the appellant submitted that, the respondent is a freelance photographer and claimed a monthly income of 20,630/-. But the tribunal₹ has taken 12,030/- as his monthly income for the₹ purpose of assessing compensation, which is on the higher side. Further he was aged between 25 and 30, the proper multiplier applicable as per the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC) to such age group

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M.A.C.A. No.660 of 2011

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is 17 and not 18, as taken by the tribunal. Further, the amount awarded under the head loss of amenities in life and future treatment is also on the higher side. So, the total compensation awarded is excessive and disproportionate to the nature of injuries and disabilities suffered by the respondent. Further, the tribunal has not considered the fact that, he can do work with that disability as well as mitigating circumstance which assessing compensation.

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We have considered the rival contentions

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of both parties.

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It is seen from the records that the appellant was a freelance photographer, associated with Asianet and other institutions, apart from conducting his own studio. He had produced documents to show that he was getting average monthly income of 12,030/-. He₹ went to the witness box and deposed about the same as well. There was no much cross examination of the respondent on this aspect. So under the circumstances,

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M.A.C.A. No.660 of 2011

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we do not find any infirmity on the part of the tribunal adopting 12,030/- as his monthly income for the purpose₹ of assessing compensation.

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It is also admitted that, he suffered amputation of one leg (L) below knee and suffered 58% occupational disability. This has been taken into consideration by the tribunal as well. Being a photographer, this may have great impact on his earning capacity as well. He will have to travel with this difficulty, that may reduce his income. So considering this aspect, the tribunal was perfectly justified in taking 58% as occupational disability to assess compensation under the head loss of earning capacity. There is some force in the submission made by the counsel for the appellant, regarding the multiplier adopted by the tribunal. It is seen from the records that, he was in the age group of 25 to 30, so the proper multiplier applicable to such group, as per the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation

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M.A.C.A. No.660 of 2011

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(supra) is 17 and not 18. If a recalculation is made on that basis, the appellant will be entitled to get ₹14,23,390/-(12,030x12x17x58%) instead of 15,07,118/-₹ awarded by the tribunal. An excess amount of 83,728/-₹ is awarded under that head.

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Further, the tribunal has awarded ₹5,00,000/-, as compensation for loss of amenities and future treatment. In fact there is no document produced to prove his future treatment. However, considering the fact that 58% has been taken as his disability, and awarded a reasonable compensation under the head loss of earning capacity, we feel that the amount of ₹ 5,00,000/- awarded by the tribunal under that head appears to be on the higher side and we reduce the same to 3,00,000/-. So there is an excess compensation of₹ ₹ 2,83,728/- awarded by the tribunal, which has to be reduced from the total compensation of 25,99,267/-₹ awarded by the tribunal. If this deduction is made, the respondent will be entitled to get only 23,15,539/- as₹

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M.A.C.A. No.660 of 2011

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compensation. So, we re-fix the compensation payable to the respondent as 23,15,539/- instead of 25,99,266/-₹ ₹ awarded by the tribunal. We are not inclined to interfere with the amounts awarded under other heads, as we feel that it is just and reasonable.

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

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Sd/S. Siri Jagan, Judge

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Sd/K. Ramakrishnan, Judge

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// True Copy //

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P.A. to Judge

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The Oriental Insurance Co.Ltd v. Vivek.R.

Case brief

What is this about?

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The Oriental Insurance Co.Ltd v. Vivek.R.

Case brief

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