Allowed

New India Assurance Co. Ltd., v. Reji Kumar S.

Kerala HC16 Oct 2023MACA/56/2019

Case brief

AI extract

What is this about?

In a motor accident appeal, the High Court accepted a challenge to the quantum of compensation. The Court fixed monthly income at the accident date rate, enhanced functional disability to 100%, adjusted the multiplier for future prospects, and partially reduced bystander expenses, refixing the total compensation.

What did the court decide?

Award dated 6.7.2018 was modified; compensation refixed at Rs.59,86,889/- with adjustment of interest already deposited.

New India Assurance Co. Ltd., Vs Reji Kumar S. — Insurance | Kerala HC (2023)

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MACA NO. 56 OF 2019

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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 ZIYAD RAHMAN A.A.
MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945

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MACA NO. 56 OF 2019

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AGAINST THE AWARD DATED 6.7.2018 IN OP(MV)NO.741/2009 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA APPELLANT/3RD RESPONDENT:

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NEW INDIA ASSURANCE CO. LTD.,
COLLEGE ROAD, PATHANAMTHITTA, REPRESENTED BY ITS
ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.
ROAD, ERNAKULAM.
BY ADVS.
K.S.SANTHI
SMT.LATHA SUSAN CHERIAN

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RESPONDENT/CLAIMANT:

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REJI KUMAR S.,
S/O RAVEENDRAN K.V., KALLUZHATHIL PUTHEN VEEDU,
MANAKALA P.O., ANTHICHIRA, THUVAYOOR NORTH, ADOOR.
BY ADV SRI.A.N.SANTHOSH

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OTHER PRESENT:

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R-SRI.A.N.SANTHOSH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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MACA NO. 56 OF 2019

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ZIYAD RAHMAN, A.A, J

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M.A.C.A No. 56 of 2019

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Dated this the 16th day of October, 2023

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JUDGMENT

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The appellant is the 3rd respondent in O.P.(MV).No.741 of

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2009 on the files of the Additional Motor Accidents Claims Tribunal, Pathanamthitta. The said claim petition was submitted by the respondent herein seeking compensation for

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the injuries sustained to him in a motor accident that occurred

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on 18.02.2009.

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The accident occurred when the motorcycle ridden by the

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respondent herein was hit by an autorickshaw insured with the appellant herein. According to the respondent, he was aged 33 years at the time of the accident and was employed as a Havildar in the Indian Army with a monthly income of Rs.20,000/-. Injuries suffered by him led to permanent disability, which was certified as 59% by the Medical Board.

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The claim petition was submitted in such circumstances,

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MACA NO. 56 OF 2019

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seeking compensation of Rs.1,08,57,000/-.

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The appellant/3rd respondent alone contested the

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matter by filing a written statement, wherein they admitted

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the coverage of policy in respect of the vehicle but disputed the liability on various grounds. The quantum of

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compensation was also disputed by them.

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To substantiate the contentions, the 1st respondent

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examined PW1 and Exts.A1 to A23 were marked. No evidence

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was adduced from the side of the respondents. After examining the materials placed on record, the Tribunal found that the accident occurred due to the negligence of the driver of the vehicle insured with the appellant herein and therefore, the appellant was held liable to pay the compensation. The quantum of compensation was fixed as Rs.75,56,509/- and the said amount was directed to be deposited by the Insurance Company with interest at the rate of 8% per annum from the date of petitioner till realisation. This appeal is submitted in

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such circumstances by the appellant, challenging the quantum

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MACA NO. 56 OF 2019

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of compensation.

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Heard Sri. George Cheriyan learned Senior counsel for the appellant, and Sri.A.N.Santhosh, learned counsel for the respondent.

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Learned Senior counsel raised various contentions highlighting that the quantum of compensation awarded under

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various heads is extremely on the higher side. The main contest is on the compensation under the head of loss of earning power consequent to the disability. The main factors based on which computation was made, such as the monthly income, permanent disability and the addition made towards future prospects, were seriously disputed by them.

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On the other hand, the learned counsel for the respondent would submit that the amount awarded by the Tribunal is reasonable, taking note of the physical condition of the respondent as is discernible from the medical records and the consequences of the injuries sustained by the respondent.

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It was also pointed out that his service was terminated by the

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MACA NO. 56 OF 2019

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authorities concerned, as he was declared unfit to continue in

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the employment consequent to the injuries sustained in the accident.

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I have carefully gone through the materials placed

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on record. The first question to be considered is with respect

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to the monthly income to be taken. The monthly income claimed was Rs.20,000/-, whereas the Tribunal has taken the monthly income for the purpose of computing the compensation for disability as Rs.26,360/- and added 50% thereof towards the future prospects. The monthly salary of the respondent was fixed as Rs.26,360/- based on Ext.A16 pay slip, which pertains to the year, 2011, which is the period when the respondent was terminated from his service consequent to the injuries. The main contention put forward by the learned Senior counsel for the appellant is that, as the accident occurred in the year 2009, i.e., two years prior to the termination, his actual income, which he was drawing at the relevant time alone, could have been taken. After considering

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MACA NO. 56 OF 2019

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the said aspects, I find some force in the said contention. As

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the accident occurred on 18.12.2009, the monthly income which is relevant for computation can only be the monthly income which he used to draw at the time of the accident, and I do not find any justification for adopting a higher monthly income, which he was drawing at the time when his services were terminated. Compensation was granted in this case by taking into account future prospects as well, by adding 50% of the amount. Therefore, I am of the view that the finding of the Tribunal in this regard is not correct, and thus, the monthly income in this case is fixed as Rs.20,000/-, which is claimed in the claim petition.

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The next aspect relates to the physical disability. As per Ext.A21, the medical board certified his disability as 59%, out of which 55% was towards urological disability and 4% towards orthopaedic disability. The Tribunal, after seeing him when he was produced before the court, observed that he

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was in a vegetative state. Further, the injuries and

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MACA NO. 56 OF 2019

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the consequential disability resulted in the termination of the employment was also taken into account. The Tribunal also considered the lack of prospects for the respondent to get employed profitably in future, even after the termination of the service. It thus took the functional disability, which was assessed as 85%. The learned Senior counsel for the appellant contends that such an assessment was erroneous. However, after carefully going through the contents of the Ext.A21 disability certificate, evidence of PW1 and other relevant materials along with the claim petition, I am not inclined to accept the said contention.

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It is true that it has come out in evidence that the respondent was having remaining service of about five years

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when his services were terminated. However, the crucial aspect to be noted is that as per Ext.A1 disability certificate, he had sustained physical disability of 59%. The aforesaid certificate, coupled with the deposition of PW1, would make it clear that, he was unable to move or walk without the help of

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MACA NO. 56 OF 2019

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a third person. The learned counsel for the appellant contends

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that the functional disability at a higher percentage than the physical disability certified by the doctor can be taken only in the cases of persons who are employed as manual labourers. Therefore, it was pointed out that such a method of computation should not have been adopted in this case, considering the nature of the employment of the respondent. According to him, the fact that he had only five years of service left at the time when his services were terminated was also a relevant fact. However, after carefully considering the facts and circumstances of the case, I do not find any reason to interfere with the fixation of functional disability as 85%. The very fact that the disability was fixed 59% by itself would indicate that his normal life is critically affected. A disability of such nature would certainly prevent him from getting engaged in any profitable employment after his retirement from the service as well. Moreover, the injuries and a consequential disability deprived him of continuing his service

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MACA NO. 56 OF 2019

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for the entire tenure as the services were terminated by the

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authorities concerned about five years before the completion of

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his eligible term. Thus, the losses sustained by the respondent are manifold, i.e. loss of the opportunity to complete the tenure of his employment, inability to pursue any job after the accident due to the termination of the service, the other benefits, including the possible promotion he would have received had he continued in service, etc., are crucial factors to be taken into account. When all the aforesaid aspects are taken into consideration, I am of the view that the functional disability taken by the Tribunal as 85% appears to

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be on the lower side. In this case, the Tribunal already observed that, although it was a case where 100% disability was to be taken, considering overall circumstances and also taking note of the imponderable of life and the uncertainty in the life of everyone to live up to the estimated period of life expectancy, the same has to be fixed as 85%. But, while considering this issue, the fact that he is completely deprived

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MACA NO. 56 OF 2019

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of pursuing any other employment at a younger age of 35

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years is a factor to be considered. The fact that he was terminated from service due to his physical disability is also a crucial aspect. Therefore, I am of the view that, due to the above reason, 100% per cent functional disability ought to be taken in this case, and it is accordingly revised.

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The next aspect relates to the addition for future prospects. It is a well-settled position of law that when a person who is employed with a regular income dies or is subjected to serious disability consequent to the accident, the addition of 50% can be made towards future prospects. In this case, while considering the said aspect, one crucial matter that has to be taken into consideration is that the respondent had only five years of service remaining when his services were not terminated. Another aspect is that he continued in the employment with full salary for a period of two years after

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the accident. However, even though these aspects are relevant for consideration for loss of earning capacity, the

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MACA NO. 56 OF 2019

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addition of 50% to be made towards future prospects need not

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be interfered with. At the same time, as the respondent received full salary for a period of two years after the accident, instead of making any deduction towards the prospects, the multiplier can be modified as 13, taking into account the period of service after the accident. Thus, the multiplier is to be determined as 13, instead of 15, as considered by the Tribunal. While reassessing the compensation with the above criteria, i.e., Rs.20,000/- as

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monthly income and the multiplier as 13, the compensation of loss of earning power consequent to the disability would come

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to Rs.46,80,000/-. The amount already awarded by the Tribunal under this head is Rs.60,49,620/- .Therefore, an amount of Rs.13,69,620/- is in excess.

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The learned senior counsel objects to the amount of Rs.5,00,000/- awarded under the bye stander expenses and Rs.5,00,000/- granted under the grant of loss of amenities. As

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far as the compensation for amenities and enjoyment of life is

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MACA NO. 56 OF 2019

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concerned, the crucial aspect to be noted is that, from the deposition of PW1, the wife of the respondent, the physical

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condition of the respondent is very much discernible, and the same is fortified by the Ext.A21 disability certificate. The said evidence would indicate that the respondent is dependent upon PW1 for his day-to-day activities. Therefore, I do not find any justifiable reason to interfere with the amount of RS.5,00,000/- granted under the head of loss for amenities of life. However, with respect to the amount of Rs.5,00,000/granted under the head of by-stander expenses appear to be on the higher side. There is no case for the respondent that he had to engage a third person to attend to the needs of the respondent, and he had incurred additional expenses for him. Therefore, I am of the view that an amount of Rs.5,00,000/- is on the higher side and hence the same is modified as Rs.3,00,000/-. Thus, it is found that the compensation awarded by the tribunal is in excess by Rs.15,69,620/-. Accordingly, the total amount of compensation

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MACA NO. 56 OF 2019

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is refixed as Rs.59,86,889/-.

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Accordingly, this appeal is allowed, and the award

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dated 6.7.2018 in OP(MV)NO.741/2009 passed by the Additional Motor Accidents Claims Tribunal, Pathanamthitta is hereby modified by refixing the compensation as Rs.59,86,889/(7556509-1569620) and the said amount shall be deposited by the appellant along with interest at the rate, as ordered by the Tribunal within a period of three months from the date of receipt of a copy of this judgment, after adjusting the amount

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already deposited.

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This appeal is allowed accordingly.

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sd/-

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ZIYAD RAHMAN, A.A, JUDGE

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R.AV

New India Assurance Co. Ltd., v. Reji Kumar S.

Case brief

What is this about?

What did the court decide?

New India Assurance Co. Ltd., v. Reji Kumar S.

Case brief

What is this about?

What did the court decide?

What the court decided

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