Partly allowed

The New India Assurance Co. Ltd. v. Nithin Vijayan @ Kannan

Kerala HC28 Jun 2022MACA/1949/2016

Case brief

AI extract

What is this about?

In this motor accident appeal, the High Court of Kerala modified the Tribunal's award by enhancing the permanent disability component through re-calculation of income but deducting an award for loss of earning power. The court applied a precedent holding that compensation for disability and loss of earning power cannot be claimed simultaneously.

What did the court decide?

The award was enhanced by Rs.3,73,268/- under permanent disability but reduced by Rs.6,48,000/- under loss of earning power, resulting in a new total of Rs.25,71,268/- payable with interest.

The New India Assurance Co. Ltd. Vs Nithin Vijayan @… — 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 MURALI PURUSHOTHAMAN

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TUESDAY, THE 28^TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944

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MACA NO. 1949 OF 2016

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AGAINST THE ORDER/JUDGMENT DATED 11.09.2015 IN OPMV NO.1415

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OF 2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM. APPELLANT/2ND RESPONDENT IN O.P(M.V):

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THE NEW INDIA ASSURANCE CO. LTD., KOTTAYAM, REPRESENTED BY THE DULY CONSTITUTED ATTORNEY, M.K. RAVIKRISHNAN (REGIONAL MANAGER), REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI – 682 011.

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BY ADV SRI. JACOB MURIKAN

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RESPONDENTS/PETITIONER & 1ST RESPONDENT IN O.P(M.V):

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1 NITHIN VIJAYAN @ KANNAN AGED 25 YEARS, S/O. VIJAYAN, PALATHARA HOUSE, LAIKKAD, PERUNNA P. O., CHENGANACHERRY, PIN – 686 102. 2 SURESHKUMAR T. P. AGE AND FATHER'S NAME NOT KNOWN, NANDAVANAM, CHENGALAM SOUTH P. O., KOTTAYAM, PIN – 686 022.

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BY ADVS. SRI. NANDAGOPAL S. KURUP SRI. G.SREEKUMAR CHELUR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA No.1949 OF 2016

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JUDGMENT

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This appeal is filed by the 2^nd respondent Insurance Company in O.P(MV) No.1415/2012 on the file of the Motor Accidents Claims Tribunal, Kottayam challenging the award passed thereon. The parties in this appeal are referred to as per their status in the claim petition.

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The petitioner, who was aged 21 years at the time of the accident, filed the claim petition seeking an amount of Rs.30,00,000/- for the injuries sustained by him in the accident which took place on 22.05.2012, while travelling as a pillion rider on a

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motor cycle when hit by a car owned and driven by the 1^st respondent.

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Before the Tribunal, the 1^st respondent remained ex-parte. The 2^nd respondent Insurance Company filed a written statement contending that

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MACA No.1949 OF 2016

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the accident happened due to the negligence of the petitioner in riding the motor cycle and that the amount claimed as compensation is excessive and exorbitant.

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The Tribunal found that the accident happened due to the rash and negligent driving of the car by the 1^st respondent and awarded an amount of Rs.28,46,000/- as total compensation with 9% interest per annum from the date of petition till realisation and proportionate costs. The Insurance Company was made liable to pay the compensation.

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Challenging the award of the Tribunal, the Insurance Company has come up in appeal. According to the appellant-insurance company, the Tribunal went wrong in awarding compensation under the heads ‘permanent disability’ and ‘loss of earning power’, since the claimant is entitled to compensation only under one of these heads.

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MACA No.1949 OF 2016

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The Tribunal has taken the notional income

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of the petitioner as Rs.10,000/- per month. He was a welder/fabricator, aged 21 years at the time of the accident. Towards future prospects, 40% of the income has to be added. Accordingly, the monthly income of the petitioner is re-fixed as Rs.14,000/- (10000 + 4000).

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The Tribunal has awarded an amount of Rs.9,33,100/- under the head permanent disability. The multiplier adopted is ‘18’. The Medical Board has assessed the percentage of his permanent

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disability as 43.2%. With the re-fixed income, the compensation for permanent disability is re-calculated as Rs.13,06,368/- (14,000 x 12 x 43.2% x 18). Therefore, the petitioner is entitled for an enhanced compensation of Rs.3,73,268/- (13,06,368 – 9,33,100 ) under the said head. A

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Division Be nch of this Court in National Insurance

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MACA No.1949 OF 2016

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Co. Ltd. V. Anoopkumar [2014 (1) KLT 266] has held that for disability, compensation can be given only under two heads; i.e., for loss of earning power and for disability/loss of amenities and enjoyment in life. In the light of the said decision, the petitioner is not entitled to compensation towards loss of earning power. Therefore, the amount of Rs.6,48,000/- awarded under the said head has to be deducted.

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The Tribunal has awarded just compensation under other heads.

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Accordingly, the petitioner is

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entitled for only an amount of Rs.25,71,268/- (28,46,000 + 3,73,268 - 6,48,000) as total compensation instead of Rs.28,46,000/-.

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At the time of the admission of the appeal, this Court had granted stay of the award on condition that the appellant deposits an amount of Rs.15,00,000/before the Tribunal. It is submitted by the learned

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MACA No.1949 OF 2016

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counsel for the appellant-insurance company that the said amount has been deposited and as per the directions of this Court, the petitioner has withdrawn the amount. The appellant shall deposit the balance amount with 9% interest per annum from the date of the petition till realisation, within a period of two months from the date of receipt of a copy of this judgment.

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The appeal is disposed of as above.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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SPR

The New India Assurance Co. Ltd. v. Nithin Vijayan @ Kannan

Case brief

What is this about?

What did the court decide?

The New India Assurance Co. Ltd. v. Nithin Vijayan @ Kannan

Case brief

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