The New India Assurance Co. Ltd vs Nithin Vijayan @ Kannan
2022 Latest Caselaw 7778 Ker

Citation : 2022 Latest Caselaw 7778 Ker
Judgement Date : 28 June, 2022

Kerala High Court

The New India Assurance Co. Ltd vs Nithin Vijayan @ Kannan on 28 June, 2022

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
   TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
                     MACA NO. 1949 OF 2016
AGAINST THE ORDER/JUDGMENT DATED 11.09.2015 IN OPMV NO.1415
 OF 2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM.
APPELLANT/2ND RESPONDENT IN O.P(M.V):

            THE NEW INDIA ASSURANCE CO. LTD.,
            KOTTAYAM,
            REPRESENTED BY THE DULY CONSTITUTED ATTORNEY,
            M.K. RAVIKRISHNAN (REGIONAL MANAGER),
            REGIONAL OFFICE, KANDAMKULATHY TOWERS,
            M.G.ROAD, KOCHI - 682 011.

            BY ADV SRI. JACOB MURIKAN


RESPONDENTS/PETITIONER & 1ST RESPONDENT IN O.P(M.V):

    1       NITHIN VIJAYAN @ KANNAN
            AGED 25 YEARS,
            S/O. VIJAYAN, PALATHARA HOUSE,
            LAIKKAD, PERUNNA P. O.,
            CHENGANACHERRY, PIN - 686 102.
    2       SURESHKUMAR T. P.
            AGE AND FATHER'S NAME NOT KNOWN,
            NANDAVANAM, CHENGALAM SOUTH P. O.,
            KOTTAYAM, PIN - 686 022.

            BY ADVS.
            SRI. NANDAGOPAL S. KURUP
            SRI. G.SREEKUMAR CHELUR



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION    ON   28.06.2022,   THE    COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 MACA No.1949 OF 2016

                                    2

                                 JUDGMENT

This appeal is filed by the 2nd respondent

Insurance Company in O.P(MV) No.1415/2012 on the

file of the Motor Accidents Claims Tribunal, Kottayam

challenging the award passed thereon. The parties in

this appeal are referred to as per their status in the

claim petition.

2. The petitioner, who was aged 21 years at the

time of the accident, filed the claim petition seeking

an amount of Rs.30,00,000/- for the injuries

sustained by him in the accident which took place on

22.05.2012, while travelling as a pillion rider on a

motor cycle when hit by a car owned and driven by

the 1st respondent.

3. Before the Tribunal, the 1 st respondent

remained ex-parte. The 2nd respondent Insurance

Company filed a written statement contending that MACA No.1949 OF 2016

the accident happened due to the negligence of the

petitioner in riding the motor cycle and that the

amount claimed as compensation is excessive and

exorbitant.

4. The Tribunal found that the accident

happened due to the rash and negligent driving of the

car by the 1st respondent and awarded an amount of

Rs.28,46,000/- as total compensation with 9%

interest per annum from the date of petition till

realisation and proportionate costs. The Insurance

Company was made liable to pay the compensation.

5. Challenging the award of the Tribunal, the

Insurance Company has come up in appeal.

According to the appellant-insurance company, the

Tribunal went wrong in awarding compensation under

the heads 'permanent disability' and 'loss of earning

power', since the claimant is entitled to compensation

only under one of these heads.

MACA No.1949 OF 2016

6. The Tribunal has taken the notional income

of the petitioner as Rs.10,000/- per month. He was a

welder/fabricator, aged 21 years at the time of the

accident. Towards future prospects, 40% of the

income has to be added. Accordingly, the monthly

income of the petitioner is re-fixed as Rs.14,000/-

(10000 + 4000).

7. The Tribunal has awarded an amount of

Rs.9,33,100/- under the head permanent disability.

The multiplier adopted is '18'. The Medical Board

has assessed the percentage of his permanent

disability as 43.2%. With the re-fixed income, the

compensation for permanent disability is re-calculated

as Rs.13,06,368/- (14,000 x 12 x 43.2% x 18).

Therefore, the petitioner is entitled for

an enhanced compensation of Rs.3,73,268/-

(13,06,368 - 9,33,100) under the said head. A

Division Bench of this Court in National Insurance MACA No.1949 OF 2016

Co. Ltd. V. Anoopkumar [2014 (1) KLT 266] has

held that for disability, compensation can be given

only under two heads; i.e., for loss of earning power

and for disability/loss of amenities and enjoyment in

life. In the light of the said decision, the petitioner is

not entitled to compensation towards loss of earning

power. Therefore, the amount of Rs.6,48,000/-

awarded under the said head has to be deducted.

8. The Tribunal has awarded just compensation

under other heads.

         9.   Accordingly,         the      petitioner       is

    entitled for   only an amount of         Rs.25,71,268/-

    (28,46,000     +   3,73,268     -    6,48,000)   as   total

compensation instead of Rs.28,46,000/-.

At the time of the admission of the appeal, this

Court had granted stay of the award on condition that

the appellant deposits an amount of Rs.15,00,000/-

before the Tribunal. It is submitted by the learned MACA No.1949 OF 2016

counsel for the appellant-insurance company that the

said amount has been deposited and as per the

directions of this Court, the petitioner has withdrawn

the amount. The appellant shall deposit the balance

amount with 9% interest per annum from the date of

the petition till realisation, within a period of two

months from the date of receipt of a copy of this