The National Insurance Co. Ltd vs Thomas Mathew @ Aniyan on 4 February, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1213 of 2008()


1. THE NATIONAL INSURANCE CO. LTD.,
                      ...  Petitioner

                        Vs



1. THOMAS MATHEW @ ANIYAN,
                       ...       Respondent

                For Petitioner  :SRI.GEORGE CHERIAN (THIRUVALLA)

                For Respondent  :SRI.PHILIP M.VARUGHESE

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :04/02/2009

 O R D E R
                    C.N.RAMACHANDRAN NAIR &
                            C.K.ABDUL REHIM, JJ.
               ....................................................................
                  M.A.C.A. Nos.1213 & 2559 of 2008
               ....................................................................
               Dated this the 4th day of February, 2009.

                                      JUDGMENT

Ramachandran Nair, J.

The connected appeals arise from a claim petition filed by the

driver of a mini lorry who was seriously injured on account of collision

between the mini lorry he was driving and a tempo van. The driver of

the tempo van was found negligent and consequently it’s insurer was

called upon to pay compensation totaling Rs.5,21,400/-, out of which

Rs.85,000/- represents compensation granted for damage to the vehicle.

The claimant and the Insurance Company are both in appeal before us,

one for enhancement and the other for reduction of compensation

granted. We have heard counsel appearing for both sides.

2. Counsel for the Insurance Company referred to Full Bench

decision of this court in ORIENTAL INSURANCE COMPANY LTD.

V. HARIPRASAD (2005(4) KLT 977) and contended that granting of

compensation for permanent disability and again separately for loss of

earning power is impermissible. It is seen that MACT after awarding

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compensation of Rs.2,75,400/- towards compensation for 45%

permanent disability, on account of amputation of right leg below the

knee, again granted Rs.50,000/- for loss of earning power. Even

though we agree with the counsel for the Insurance Company that grant

of compensation under the above two heads simultaneously is against

law, considering the argument of counsel for the claimant that the

income adopted is low and his disability as a driver is 100% on account

of loss of leg, we do not think any modification is required in the award

because even if we allow the appeal of the Insurance Company by

cancelling Rs.50,000/- additionally granted for loss of earning power,

we will have to enhance the compensation atleast by this amount on

account of eligibility for fixation of higher income for the claimant.

Moreover, compensation granted for loss of amenities and enjoyment

in life which is only Rs.10,000/- is also very low. We, therefore, feel

that the relief to be granted in the appeal filed by the Insurance

Company will be neutralised when we increase compensation in the

appeal filed by the claimant. Since we find that the compensation

granted in absolute terms is fairly reasonable, we feel the better course

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will be to allow the same to attain finality. We, therefore, dismiss both

the appeals.

C.N.RAMACHANDRAN NAIR
Judge

C.K.ABDUL REHIM
Judge
pms