Partly allowed

The Oriental Insurance Company Limited v. Sunitha

Kerala HC16 Dec 2021MACA/2017/2012

Case brief

AI extract

What is this about?

This judgment dismissed Motor Accident Claims Appeals challenging an earlier Tribunal award. It increased compensation to survivors by reducing contributory negligence from 50% to 25%, setting a 17x multiplier, and fixing a notional income of Rs. 4,000, granting an additional Rs. 2,50,000 total.

What did the court decide?

Additional compensation of Rs. 2,50,000 with 9% interest awarded; insurer to deposit sum within two months.

The Oriental Insurance Company Limited Vs Sunitha — Motor Accident Claims | Kerala HC (2021)

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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 T.R.RAVI

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THURSDAY, THE 16 T H DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943

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MACA NO. 2017 OF 2012

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AGAINST THE AWARD IN OPMV 348/1998 OF IST ADDITIONALMOTOR ACCIDENT

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CLAIMS TRIBUNAL, KOZHIKODE

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APPELLANT/2ND RESPONDENT:

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THE ORIENTAL INSURANCE COMPANY LIMITED KOZHIKODE NOW REPRESENTED BY ITS ASSISTANT MANAGER,REGIONAL OFFICE, METRO PALACE, KOCHI - 18. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW

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RESPONDENTS/SUPPL.PETITIONERS:

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1 SUNITHA W/O.LATE PRASANTH, PRIYA HOUSE, MAYANAD, KOZHIKODE, PIN - 673315

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2 VISHNU PRASANTH, AGED 2 (MINOR) S/O.LATE PRASANTH REPRESENTED BY ITS MOTHER SUNITHA, PRIYA HOUSE, MAYANAD,KOZHIKODE, PIN - 673315.

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3 C.K.IMBICHAN PRIYA HOUSE, MAYANAD KOZHIKODE, PIN - 673315. (DELETED) (RESPONDENT NO. 3 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 30.11.12 IN IA 2955/12 IN MACA 2017/2012) 4 DHANALAKSHMI WO.IMBICHAN PRIYA HOUSE MAYANAD KOZHIKODE PIN - 673315. BY ADV SRI.D.SAJEEV

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.10.2021, ALONG WITH MACA.116/2013, THE COURT ON 16.12.2021 DELIVERED THE FOLLOWING:

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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 T.R.RAVI

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THURSDAY, THE 16 T H DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943

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MACA NO. 116 OF 2013

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AGAINST THE AWARD IN OPMV 348/1998 OF IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL/1ST ADDL.DISTRICT JUDGE, KOZHIKODE

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APPELLANTS/SUPPL.PETITIONERS:

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1 SUNITHA PRIYA HOUSE, MAYANAD, KOZHIKODE. 2 VISHNU PRASANTH (MINOR) S/O. PRASANTH (LATE), AGED 16 YEARS, PRIYA HOUSE, MAYANAD, KOZHIKODE, REP. BY MOTHER SUNITHA. 3 C.K. IMBICHAN F/O. LATE PRASANTH PRIYA HOUSE, MAYANAD, KOZHIKODE. (DIED) 4 DHANALEKSHMI M/O. LATE PRASANTH PRIYA HOUSE, MAYANAD, KOZHIKODE. BY ADV SRI.D.SAJEEV

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RESPONDENTS/RESPONDENTS:

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1 HEMA V.G., MANAGING PARTNER KARMA ENTERPRISES, I.G.ROAD, KOZHIKODE P.O. 673 001 (OWNER OF THE CAR NO. KL-11/E.7799) 2 THE ORIENTAL INSURANCE COMPANY LTD. BRANCH OFFICE, KINGS WAY BUILDING, MAVOOR ROAD KOZHIKODE PO. 673 001 (INSURER OF THE CAR NO. KL-11/E.7799) BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.10.2021, ALONG WITH MACA.2017/2012, THE COURT ON 16.12.2021 DELIVERED THE FOLLOWING:

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MACA 2017 OF 2012 & 116 OF 2013

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T.R. RAVI, J.

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M.A.C.A.Nos.2017 OF 2012 & 116 OF 2013

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Dated this the 16^th day of December, 2021

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JUDGMENT

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The above two appeals are filed challenging the award passed by the 1^st Additional Motor Accidents Claims Tribunal, Kozhikode. M.A.C.A.No.2017 of 2012 has been filed by the Insurance company who was the 2^nd respondent before the Tribunal. The original claimant died pending the claim petition and his legal representatives were impleaded as additional claimants. M.A.C.A.No.116 of 2013 has been filed by the additional claimants before the Tribunal. The parties are referred to as per their status before the Tribunal.

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On 15.5.1997, when the original claimant was travelling in a motorcycle, he was hit by a car driven in a rash and negligent manner. He was taken to Medical College Hospital, Kozhikode for treatment, which resulted in amputation of his right leg. He thus became permanently disabled. In the claim petition filed before the Tribunal, the Tribunal passed an award granting a compensation of Rs.2,80,100/-. The claimants have filed appeal claiming enhanced compensation and the Insurance Company has challenged the award.

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Heard the counsel for the claimants and the respondents.

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The counsel for the claimants contended that the Tribunal

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MACA 2017 OF 2012 & 116 OF 2013

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went wrong in disallowing the claim of the claimants that the deceased was working as a Medical Representative and earning Rs.6,000/- per month at the time of the accident. He was 30 years of age at the time of accident. It is also contended that the Tribunal went wrong in fixing 50% contributory negligence on the deceased original claimant. The counsel for the 2^nd respondent Insurer contended that the Tribunal went wrong in adopting a multiplier of 18 since the original claimant did not live for 18 years after the accident.

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Ext.A1 is the copy of the FIR registered against the driver of the car which had hit against the motor cycle driven by the original claimant. It says that the driver of the car was negligent. Ext.B1 is the charge laid against the original claimant. Since the original claimant died pending the case, C.C.No.94/1998 initiated against him was closed as abated. Thus what is available before the court are the two FIRs which have different versions regarding the negligence. PW2 who is an independent witness, who had taken the deceased to the Hospital has stated that it was the car which had hit the motor cycle, supporting the case of the claimants that the deceased was not negligent. However, I am of the opinion that the death of the original claimant cannot be a reason to fix the entire negligence on the driver of the car. I am of the opinion that it would be just and proper to fix the contributory negligence of the original claimant as 25% instead of

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MACA 2017 OF 2012 & 116 OF 2013

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50% fixed by the Tribunal.

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Since the death of the original claimant was not due to the accident, the case has to be treated as one of injury. Going by the decision in Sarla Verma vs Delhi Transport Corporation & Ors. reported in [2010 (2) KLT 802] , the multiplier to be adopted in the case of a 30 year old is 17 and not 18. Though there is no evidence regarding the income, I am of the opinion that the notional monthly income of a Medical Representative during 1997 should be fixed at Rs.4,000/-. The claimants will be entitled to a sum of Rs.4,08,000/(4000x12x17x50%) towards compensation for permanent disability. The fact that the original claimant did not survive for 17 years cannot be a reason to reduce the claim under permanent disability. After deducting the sum of Rs.2,16,000/- awarded by the Tribunal, the claimants will be entitled to a sum of Rs.1,92,000/- under the above head. The Tribunal granted only a sum of Rs.10,000/- under the head loss of amenities and enjoyment in life, though it is a case where the original claimant lost one of his limbs. I am hence of the opinion that the claimants are entitled to additional compensation of Rs. 40,000/- under the head loss of amenities. The loss of earnings for 9 months at the rate of Rs.4,000/- per month will be Rs.36,000/-. After deducting the sum of Rs.18,000/- awarded by the Tribunal, an additional compensation of Rs.18,000/- is awarded under that head. The

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MACA 2017 OF 2012 & 116 OF 2013

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amounts awarded under the other heads are fair and reasonable and do not warrant interference.

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In the result, the two appeals are disposed of modifying the award passed by the Tribunal, by awarding additional compensation of Rs.2,50,000/ (Rupees Two Lakhs Fifty Thousand only) with interest at the rate of 9% per annum from the date of filing of the claim petition (26.02.1998) till the date of realisation, with proportionate costs. The insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the claimants liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the claimants shall be in accordance with law.

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Sd/-

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T.R. RAVI JUDGE

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dsn

The Oriental Insurance Company Limited v. Sunitha

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Company Limited v. Sunitha

Case brief

What is this about?

What did the court decide?

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