Partly allowed

The New India Assurance Company Ltd. v. Kochumol K

Kerala HC21 Nov 2022MACA/1683/2016

Case brief

AI extract

What is this about?

The High Court allowed the cross objection and cross appeal in part, increasing total compensation. It fixed notional income based on prior SC precedent, disregarded separate functional disability award, and ordered additional Rs.6,09,700 with interest.

What did the court decide?

Additional compensation of Rs.6,09,700 awarded with interest at 9% p.a.; award for functional disability set aside.

The New India Assurance Company Ltd. Vs Kochumol K — Motor Accident Claims | Kerala HC (2022)

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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 P.V.KUNHIKRISHNAN

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MONDAY, THE 21ST DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944

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MACA NO. 1683 OF 2016

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AGAINST THE AWARD IN OPMV 256/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM

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APPELLANT/3RD RESPONDENT IN OPMV:

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THE NEW INDIA ASSURANCE COMPANY LTD.
KOTTAYAM, REPRESENTED BY THE DULY CONSTITUTED
ATTORNEY,SARASWATHY BALACHANDRAN
(MANAGER),REGIONAL OFFICE, KANDAMKULATHY TOWERS,
M.G.ROAD, KOCHI-682011.
BY ADV SRI.M.JACOB MURICKAN

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RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 IN OPMV:

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1KOCHUMOL K
AGED 46 YEARS, W/O. VIJAYAN,
ANU BHAVAN @ NADUVELIKKAKATHUCHIRAYIL HOUSE,
MEMURY P.O., KOTTAYAM, PIN-686617.
2THE MANAGING DIRECTOR
KERALA STATE ROAD TRANSPORT CORPORATION,
THIRUVANANTHAPURAM, TRANSPORT BHAVAN,
EAST FORT, THIRUVANANTHAPURAM-695014.
3OMANAKUTTAN M.S.,
AGE AND FATHER’S NAME NOT KNOWN,
MANAYAKKUZHY HOUSE, VAIKAPRAYAR P.O.,
VAIKOM, PIN-686146.
BY ADVS.
DOMSON J.VATTAKUZHY
SRI.P.C.CHACKO, SC, KSRTC
ALEX ANTONY SEBASTIAN P.A.

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THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 21.11.2022, ALONG WITH CO.111/2016, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:

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MACA No.1683 of 2016 & co 111 of 2016

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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 P.V.KUNHIKRISHNAN MONDAY,THE 21^ST DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944

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CO NO. 111 OF 2016

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AGAINST THE AWARD IN OPMV 256/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM

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CROSS OBJECTIONER/1ST RESPONDENT:

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1 KOCHUMOL K AGED 46 YEARS, W/O. VIJAYAN, ANU BHAVAN @ NADUVELIKKAKATHUCHIRAYIL HOUSE, MEMURY P.O., KOTTAYAM, PIN-686617. BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY

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RESPONDENTS/APPELLANT & R2 AND R3:

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1 THE NEW INDIA ASSURANCE COMPANY LTD. KOTTAYAM, REPRESENTED BY THE DULY CONSTITUTED ATTORNEY,SARASWATHY BALACHANDRAN (MANAGER),REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI-682011.

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THE MANAGING DIRECTOR
KERALA STATE ROAD TRANSPORT CORPORATION,
2
THIRUVANANTHAPURAM, TRANSPORT BHAVAN,
EAST FORT, THIRUVANANTHAPURAM-695014.
OMANAKUTTAN M.S.,
AGE AND FATHER’S NAME NOT KNOWN,
3
MANAYAKKUZHY HOUSE, VAIKAPRAYAR P.O.,
VAIKOM, PIN-686146.
BY ADV SRI.M.JACOB MURICKAN
SRI.P.C.CHACKO, SC, KSRTC
ALEX ANTONY SEBASTIAN P.A.

¶24

THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 21.11.2022, ALONG WITH MACA.1683/2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA No.1683 of 2016 & co 111 of 2016

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P.V.KUNHIKRISHNAN, J.

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M.A.C.A.No.1683 of 2016 & C.O.No.111 of 2016 ---------------------------------------------Dated this the 21^st day of November, 2022

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JUDGMENT

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The 3^rd respondent in O.P.(MV) No.256 of 2013 on the file of the Motor Accidents Claims Tribunal, Kottayam, filed the above appeal, and the petitioner in the claim petition, who is the 1^st respondent herein, filed cross objection for enhancement of compensation. (Parties are hereinafter mentioned in accordance to their rank before the Tribunal.) 2. Brief facts are like this:

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The petitioner sustained grievous injuries in a motor traffic accident which took place on 06.10.2012. While the petitioner was driving an autorickshaw, a KSRTC bus came from behind and hit against the autorickshaw while overtaking. Thus the autorickshaw capsized and hit on a stationary lorry. The petitioner was taken to hospital and

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MACA No.1683 of 2016 & co 111 of 2016

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treated. The accident happened, according to the petitioner, due to the rash and negligent driving of the KSRTC bus. The petitioner claimed an amount of Rs.30 lakhs as compensation.

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To substantiate the case before the Tribunal, Exts.A1 to A19 were produced by the petitioner and Ext.X1 is the disability certificate. Based on the pleadings and documents, the Tribunal found that the petitioner is entitled for a total amount of Rs.18,45,200/- with interest a the rate of 9% per annum from the date of petition. The 3^rd respondent was directed to pay the compensation. Aggrieved by the quantum of compensation, the 3^rd respondent insurance company filed M.A.C.A.No.1683 of 2016 and the petitioner/claimant filed C.O.No.111 of 2016.

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Heard both sides.

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The counsel for the 3^rd respondent insurance company submitted that in the light of the judgment of this Court in National Insurance Co. Ltd. V. Anoopkumar

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[2014 (1) KLT 266] , the Tribunal erred in granting compensation for permanent disability and functional

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MACA No.1683 of 2016 & co 111 of 2016

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disability separately. The counsel also submitted that the amount awarded on the other heads also is on a higher side.

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The counsel for the petitioner/claimant submitted that admittedly the petitioner was an autorikshaw driver. In the light of the decision of the Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] , the Tribunal ought to have fixed the notional income of the petitioner as Rs.8,500/-. The counsel further submitted that while fixing the monthly income, 25% is to be added towards future prospects. The counsel also argued that the compensation for loss of earnings is also on a lower side. It is the submission of the petitioner that there is amputation of the left arm and no amount is granted towards future treatment. It is also submitted by the petitioner that towards pain and sufferings also, only a small amount is granted.

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This Court considered the contentions of the petitioner/claimant and the counsel for the insurance

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MACA No.1683 of 2016 & co 111 of 2016

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company. It is an admitted fact that the accident happened while the petitioner was driving an autorikshaw. That itself shows that he is an autorikshaw driver. The Tribunal fixed the notional income as Rs.6,000/-. The accident happened in the year 2012. Taking note of the principle laid down by the Apex Court in Ramachandrappa’s case (supra), the notional income of the petitioner ought to have been fixed as Rs.8,500/-. Moreover, 25% of the monthly income of the petitioner is to be added to that towards loss of future prospects. If that is the case, the monthly income of the petitioner can be safely fixed as Rs.10,625/- (8500+ 8500 x 25/100). Since the notional income of the petitioner is refixed as Rs.8,500/-, loss of earnings can be recalculated for 5 months, which comes to Rs.42,500/- (8,500 x 5). Therefore the petitioner is entitled for an additional compensation of Rs.12,500/- (42,500 – 30,000) towards compensation for loss of earnings.

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As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. Admittedly the

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MACA No.1683 of 2016 & co 111 of 2016

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petitioner suffered serious injuries and there is amputation of his left arm. Considering the nature of injuries sustained and the treatment the petitioner had undergone, an amount of Rs.50,000/- can be granted under this head. Therefore the petitioner is entitled for an additional compensation of Rs.20,000/- (50000 -30000) under this head. Similarly, for future treatment,also Rs.10,000/- can be allowed.

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As far as functional disability is concerned, in the light of compensation awarded towards permanent disability, I think the same is not justified in the light of the decision reported in Anoopkumar’s case (supra). Since the notional monthly income of the petitioner is re-fixed as Rs.10,625/- , the compensation for permanent disability is re-fixed as Rs.13,03,050/- (10,625 x 12 x 73 x 14/100). The amount already awarded under this head is to be deducted and the balance additional compensation payable is Rs.5,67,200/- (13,03,050 – 7,35,850).

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In such circumstances, the additional compensation amount entitled by the petitioner can be

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MACA No.1683 of 2016 & co 111 of 2016

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summarized as follows:

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Loss of earnings : 12,500/Pain and suffering : 20,000/Future treatment : 10,000/Permanent disability : 5,67,200/------------------------

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6,09,700/-

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==========

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In the result, M.A.C.A.No.1683/2016 is allowed in part and the compensation awarded for functional disability (Rs.9,56,600/-) is set aside. C.O.No.111/2016 is also allowed in part. The petitioner/cross objectioner is entitled for an additional amount of Rs.6,09,700/-, which will carry interest at the rate of 9% per annum from the date of petition till realisation.

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sd/-

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P.V.KUNHIKRISHNAN

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JUDGE

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The New India Assurance Company Ltd. v. Kochumol K

Case brief

What is this about?

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The New India Assurance Company Ltd. v. Kochumol K

Case brief

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