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.
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M.A.C.A.No. 539 of 2007
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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/-
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MACA 539/2007 4
Total : Rs.5,94,600/-
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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.