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The Oriental Insurance Co. Ltd vs Mrs. Elisa Fernandez on 14 December, 2010

Kerala High Court
The Oriental Insurance Co. Ltd vs Mrs. Elisa Fernandez on 14 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 539 of 2007()


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

                        Vs



1. MRS. ELISA FERNANDEZ, W/O MARCEL
                       ...       Respondent

2. LINGAPPA GOWDA, S/O CHEMEPPA GOWDA,

3. T.K.NARAYANAN, S/O KUNHIKKANNAN NAIR,

                For Petitioner  :SRI.VPK.PANICKER

                For Respondent  :SRI.K.RAKESH ROSHAN

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :14/12/2010

 O R D E R
              A.K.BASHEER & P.Q.BARKATH ALI, JJ.
               =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
                    M.A.C.A.No. 539 of 2007
               =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
           Dated this the 14th day of December, 2010

                          JUDGMENT

Barkath Ali, J.

Appellant is 3rd respondent/Insurance Company in O.P.

(MV) No.698 of 2001 on the file of the Motor Accidents Claims

Tribunal, Vadakara. In this appeal the appellant challenges the

judgment and award of the Tribunal dated July 31, 2006

awarding a compensation of Rs.5,94,600/- for the loss caused

to the claimant on account of the injuries sustained in a motor

accident.

2. Claimant in the O.P. sustained the following injuries in

a motor accident that occurred on May 25, 2000 :-

1) Lacerated wound 4 x 1 bone deep occiptal
region.

2) Fracture of left sigma.

3) Epistaxis.

4) Contusion on the servical code.

5) Fracture of servical spine and the subluxation of
C3, C4 vertebra with minimal disk collapse and
myelemalacia of the code.

MACA 539/2007 2

At the time of the accident he was aged 55 and was working

as Railway Shunting Master Panamboor at Mangalore. The

accident happened while the claimant working near M.C.M.

Factory Railway Gate, a lorry hit the railway gate and as a

result of which he sustained injuries and become paraplegic.

Alleging negligence against 2nd respondent in the O.P./driver

of the offending lorry, the claimant filed the O.P. before the

Tribunal under section 166 of the Motor Vehicles Act claiming

a compensation of Rs.6 lakhs.

3. Respondents 1 and 2 in the O.P., the owner and driver

of the offending lorry, remained absent before the Tribunal.

The 3rd respondent/insurer of the offending lorry filed a written

statement admitting the policy. PW1 was examined and

Exts.A1 to A13 and Exts.X1 to X3 were marked on the side of

the claimant. Exts.B1 was marked on the side of the

respondents. On an appreciation of the evidence, the Tribunal

found that the accident happened due to negligence of the 2nd

respondent in the O.P. and awarded a compensation of

Rs.5,94,600/- with interest at 6% p.a. from the date of petition

MACA 539/2007 3

till realization and cost of Rs.15,000/-. The 3rd respondent

Insurance Company has come up in appeal challenging the

quantum of compensation awarded by the Tribunal.

4. Heard learned counsel for the appellant and learned

counsel for the 3rd respondent, claimant.

5. The finding of the Tribunal that the accident occurred

due to the negligence of the 2nd respondent/driver of the lorry

and that the claimant sustained injuries mentioned above in

the accident are not challenged in this appeal. Therefore, the

only question, which arises for consideration, is whether the

compensation awarded by the Tribunal is excessive.

6. Tribunal awarded a total compensation of

Rs.5,94,600/-. Break up of the compensation awarded is as

under:-

       1) Pain and suffering         :   Rs. 50,000/-
       2) Hospital expenses          :   Rs. 16,600/-
       3) Mental shock and           :   Rs. 30,000/-
           inconvenience caused.

       4) Permanent happy life       :   Rs. 30,000/-
           including the marital life.
       5) Loss of income             :   Rs. 72,000/-
       6) Permanent disability       :   Rs.3,96,000/-
                                      -------------------------

MACA 539/2007                 4

           Total                   :   Rs.5,94,600/-
                                      =========

7. The Tribunal took the monthly income of the claimant

as Rs.6,000/-, took the percentage of disability as 50%, as

assessed by the Medical Board, adopted a multiplier of 11 and

awarded a compensation of Rs.3,96,000/- for the disability

caused.

8. Learned counsel for the appellant contended that the

monthly income taken by the Tribunal as Rs.6,000/- is on the

higher side and that as the claimant was aged 55 at the time of

the accident, the proper multiplier ought to have been adopted

by the Tribunal 8 instead of 11.

9. As regards the monthly income taken by the Tribunal

as Rs.6,000/-, we find force in the contention of the appellant

that it is on the higher side. The claimant was working as a

Railway Shunting Master at Panambcer, Mangalore. He was

earning a salary of Rs.7,230/- as evidenced by Ext.A13 series

pay slips. As he was aged 55 at the time of the accident, he has

to retire at the age of 60 and will be earning pension.

Therefore, we feel that the monthly income of the claimant for

MACA 539/2007 5

the purpose of assessing the compensation for the disability

caused can be taken as Rs.5,000/-. As regards the multiplier

adopted by the Tribunal as 11 and the percentage of disability

as 50% assessed by the Medical Board, we find the same to be

reasonable. Thus, calculated for the disability caused, the

claimant is entitled to a compensation of Rs.3,30,000/-

(Rs.5,000/- x 12 x 11 x 50%) instead of Rs.3,96,000/-.

10. There is another aspect in this case. The Tribunal

awarded Rs.72,000/- for the loss of earning for one year. As

compensation is awarded for the disability caused and for loss

of earning power, separate compensation should not have been

awarded by the Tribunal towards loss of earning. As regards

the compensation awarded under other heads, we find the

same to be reasonable and therefore we are not disturbing the

same.

11. In the result, the claimant is found entitled to a

compensation of Rs.4,56,600/- instead of Rs.5,93,600/-

awarded by the Tribunal. The Tribunal awarded interest only

@ 6% per annum from the date of petition till realization,

MACA 539/2007 6

which appears to be very low. The claimant is entitled to

interest @ 7.5% per annum from the date of petition till

realization. The award of the Tribunal is modified to the above

extent.

The appeal is disposed of as found above.

A.K.BASHEER, JUDGE

P.Q.BARKATH ALI, JUDGE

mn.

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