The Oriental Insurance Co. Ltd. v. K. R. Asokan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939 MACA.No. 178 of 2007 ( ) ------------------------AGAINST THE AWARD IN OPMV 1438/1998 of ADDL. MACT, ERNAKULAM DATED 03-02-2006 APPELLANT(S)/3RD RESPONDENT: ------------------------------------- THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S)/CLAIMANT: ----------------------- K.R.ASOKAN, S/O.REGHUVARAN, KAITHAVELIKKAKATH HOUSE, NEAR PANCHAYAT OFFICE, PANANGAD P.O. R,R1 BY ADV. SRI.ANIL S.RAJ R,R1 BY ADV. SMT.ANILA PETER R,R1 BY ADV. SMT.MANJUSHA MOHANDAS R,R1 BY ADV. SMT.K.N.RAJANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** **========================== M.A.C.A. No.178 OF 2007 ==========================** Dated this the 24[th] day of July, 2017 ## **JUDGMENT** _Anil K. Narendran, J._ This appeal arises out of the award passed by the Additional Motor Accidents Claims Tribunal, Ernakulam dated 3.02.2006 in O.P. (MV).No.1438 of 1998, an application filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident which occurred on 10.4.1998, while he was driving an autorickshaw bearing Reg.No.KL-7/N-2617. At the place of accident, the autorickshaw was hit by a jeep bearing Reg.No.KL-7/M-8071 owned and driven by respondents 1 and 2 before the Tribunal and insured with the appellant/insurer who was the third respondent before the Tribunal. As a result of the accident, the respondent/claimant **M.A.C.A.178/2007** 2 sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the jeep by its driver, claim petition was filed before the Tribunal claiming compensation under different heads. 2. Before the Tribunal, Exts.A1 to A11 series were marked on the side of the respondent/claimant and Ext.B1 insurance certificate was marked on the side of the appellant/insurer. Both sides have not chosen to adduce any oral evidence. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the jeep by its driver. Since the said vehicle was covered by a valid insurance policy, the appellant/insurer was held liable to indemnify the owner of the jeep. 4. Under different heads, the Tribunal awarded a total compensation of Rs.1,59,831/- (wrongly shown as Rs.1,57,831/- in the award) and directed the appellant/insurer to deposit the said amount before the Tribunal together with interest at the rate of 9% per annum from the date of the petition till payment. 5. Challenging the quantum of compensation awarded by the **M.A.C.A.178/2007** 3 Tribunal under different heads, the appellant/insurer is before this Court in this appeal. 6. Heard the learned senior counsel for the appellant/insurer and also the learned counsel for the respondent/claimant. 7. The sole issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under different heads warrants interference by this Court. 8. The accident is of the year 1998 and at the time of the accident, the respondent/claimant was aged 38 years. He claimed a monthly income of Rs.3,000/-, as an autorickshaw driver. Though no reliable materials were produced before the Tribunal to prove his monthly income at the time of the accident, considering the fact that the accident is of the year 1998 and it occurred while the claimant himself was driving the autorickshaw, the Tribunal accepted his claim that he was earning a monthly income of Rs.3,000/-. The said finding of the Tribunal is perfectly legal, which warrants no interference in this appeal. 9. The injuries sustained by the respondent/claimant in the **M.A.C.A.178/2007** 4 accident, as borne out from Ext.A8 wound certificate, read thus:- “Contusion on the nose with bleeding through the nose, abrasions on the forehead and both hands, two teeth luxated, fracture of clavicle left and fracture of left humerus.” Due to the injuries sustained in the accident, the respondent/claimant had undergone inpatient treatment for a period of 20 days which is evident from the medical records. Ext.A10 is the disability certificate issued by the Medical Board in which the percentage of permanent disability has been assessed 15%. Considering the nature of the injuries sustained, the Tribunal has accepted the percentage of disability noted in Ext.A10 disability certificate by the Medical Board, which also warrants no interference in this appeal. 10. The compensation awarded by the Tribunal under different heads reads thus:- |**_Head of claim_**|**_Compensation awarded_**| |---|---| |Compensation for disability|86400/-| |Pain and sufferings|30000/-| |Transport to hospital|1000/-| |Extra nourishment, bystander etc.|2200/-| |Loss of earnings for 3 months|9000/-| |Loss of amenities|20000/-| **M.A.C.A.178/2007** 5 |**_Head of claim_**|**_Compensation awarded_**| |---|---| |Medical bills|11231| |Total|159831| 11. Towards disability compensation, the Tribunal awarded a sum of Rs.86,400/-. The Tribunal took the monthly income as Rs.3000/- while assessing the compensation. Since the claimant was aged 38 years, the Tribunal took the multiplier of '15' which is the proper multiplier applicable going by the decision of the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802].** Therefore, taking the multiplicand as 3,000, applying the multiplier of '15' and the percentage of disability as 15%, the compensation payable under the head disability comes to Rs.81,000/- (3000x12x15x15/100). However, in the award, the compensation under this head is wrongly shown as Rs.86,400/-, resulting an excess payment of **Rs.5,400/-** . The said amount shall be deducted from the balance compensation payable to the respondent/claimant. 12. Towards pain and suffering, the Tribunal awarded as sum of Rs.30,000/-. The accident is of the year 1998. Considering the nature **M.A.C.A.178/2007** 6 of the injuries sustained and the treatment the respondent/claimant had undergone, as borne out from the medical records, we find that the compensation awarded by the Tribunal under this head is on a higher side. A sum of Rs.15,000/- would represent just and reasonable compensation under this head. Therefore, the compensation awarded by the Tribunal under the head pain and suffering is scaled down to **Rs.15,000/-** . 13. Towards loss of amenities, the Tribunal awarded a sum of Rs.20,000/-. Considering the nature of the injuries sustained by the respondent/claimant and the permanent disability of 15% that had arisen therefrom, as certified in Ext.A10 disability certificate, we find that the compensation awarded under this head is also on a higher side which has to be scaled down to **Rs.15,000/-** and we do so. 14. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation which warrants no interference in this appeal. 15. In the result, the total compensation payable to the respondent/claimant is re-fixed as **Rs.1,34,431/-** **M.A.C.A.178/2007** 7 (81,000+15,000+1,000+2,200+9,000+15,000+11,231) with interest at the rate of 9% per annum from the date of the petition till payment. 16. The learned Senior Counsel for the appellant/insurer would submit that in terms of the interim order passed by this Court on 17.12.2007, the appellant/insurer has already deposited 50% of the compensation awarded by the Tribunal. 17. Since the insurance coverage of the vehicle is not in dispute, the appellant/insurer shall deposit the balance amount due in terms of this judgment before the Tribunal within one month from the date of receipt of a certified copy of this judgment. Appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN** **(JUDGE)** **spc/** **M.A.C.A.178/2007** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.178/2007** 9 **JUDGMENT September, 2010**