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2020 Supreme(Ker) 264
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K.NARENDRAN, J.
The United India Insurance co. Ltd – Appellant
Versus
Dhanesh S/o.Ambujakshan – Respondent
MACA No.434 of 2014 & CO No.42 of 2014
Decided on : 09-03-2020
Advocate Appeared:
For the Appellant : SRI.GEORGE CHERIAN (SR.), SMT.K.S.SANTHI
For the Respondent: SMT.ANUPAMA JOHNY, SRI.GOPAKUMAR G. ALUVA, SRI.REJI GEORGE, SRI.A.N.SANTHOSH
IMPORTANT POINT
When compensation is awarded under loss of future earning capacity, in the event of 100% or more than 50%, the award of compensation separately under the head of loss of amenities or loss of expectation of life may disappear or a nominal amount may be awarded under that head.
Headnote:
Motor Vehicles Act- Section 166 -For the purpose of assessing compensation, the Tribunal has to take the gross earning of the claimant as shown in his salary slips.
• When compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear or a token or nominal amount may have to be awarded under that head.
Statement of facts:
The appellant is the 3rd respondent insurer in O.P(MV)No.738 of 2009 on the file of the Motor Accidents Claims Tribunal, North Paravur, a claim petition filed by the respondent herein under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 22.06.2009, while he was riding a motorcycle bearing registration No.KL-8/AP-3234. At the place of accident, the motorcycle was hit by a maruti omni van bearing registration No.KL-11/5551 driven by the 1st respondent and owned by the 2nd respondent before the Tribunal, and insured with the appellant herein. In the accident, the claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of maruti omni van by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.79,01,752/ under various heads, which was limited to Rs.50,00,000/-for the purpose of payment of Court Fee.
Findings of Court:
Considering the nature of disabilities, the compensation under the head permanent disability is re-fixed as Rs.31,69,478/-(25,743 x 12 x 18 x 57/100), resulting an additional compensation of Rs.9,53,318/-(31,69,478 – 22,16,160), the compensation under the head loss of earning is re-fixed as Rs.1,47,104/- (18,388 x 8), resulting an additional compensation of Rs.39,104/-(1,47,104 – 1,08,000). Considering the aspects of the appellant ought have faced, this Court deem it appropriate to re-fix the compensation under pain and suffering as Rs.5,00,000/-, resulting an additional compensation of Rs.2,00,000/-(5,00,0000 – 3,00,000). However, the compensation under the head past bystander expenses and future bystander expense is scaled down to a total sum of Rs.2,00,000/-, resulting an excess payment of Rs.2,00,000/-[(2,00,000 + 2,00,000) – 2,00,000], which has to be deducted from the additional compensation granted in this appeal.
Result: Appeal and Cross objection is disposed off.
JUDGMENT :
The appellant is the 3rd respondent insurer in O.P(MV)No.738 of 2009 on the file of the Motor Accidents Claims Tribunal, North Paravur, a claim petition filed by the respondent herein under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 22.06.2009, while he was riding a motorcycle bearing registration No.KL-8/AP-3234. At the place of accident, the motorcycle was hit by a maruti omni van bearing registration No.KL-11/5551 driven by the 1st respondent and owned by the 2nd respondent before the Tribunal, and insured with the appellant herein. In the accident, the claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of maruti omni van by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.79,01,752/ under various heads, which was limited to Rs.50,00,000/-for the purpose of payment of Court Fee.
2. Before the Tribunal, the driver of the maruti van filed written statement admitting the accident; however denying the negligence alleged against him. He alleged negligence against the claimant, who was riding the motorcycle. The owner of the maruti van remained absent and he was set ex parte.
3. The 3rd respondent insurer filed written statement admitting insurance coverage of the maruti van involved in the accident; however, denying the negligence alleged against its driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive.
4. Before the Tribunal, Exts.A1 to A21 series were marked on the side of the claimant. The claimant was examined as PW1. In order to prove the employment of the claimant, PW2 was examined. On the side of the respondents, the insurance policy of the maruti van was marked as Ext.B1.
5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the maruti omni van by its driver. Since insurance coverage of the said vehicle was not in dispute, the appellant insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.43,64,960/-(which was rounded off to Rs.43,65,000/-), together with interest at the rate of 8% per annum (excluding Rs.3,00,000/-awarded towards future medical expenses and Rs.2,00,000/-awarded towards future bystander’s expenses) from the date of petition, i.e. 09.12.2009, till realisation, with proportionate cost, and the appellant insurer was directed to satisfy the award.
6. The appellant insurer is before this Court in M.A.C.A. No.434 of 2014, contending that the compensation awarded by the Tribunal under various heads are on the higher side.
7. On receipt of notice in the appeal, the claimant filed Cross Objection No.42 of 2014, contending that the compensation awarded by the Tribunal under various heads are on the lower side, which requires enhancement.
8. On 12.02.2014, when M.A.C.A.No.434 of 2014 came up for admission, this Court admitted the matter on file and issued notice on admission to the respondent/claimant. In I.A. No.444 of 2014, this Court granted an interim order staying the execution of the award in O.P.(MV)No.738 of 2009, on condition that the appellant insurer deposits 50% of the award amount before the Tribunal.
9. Heard the learned Standing Counsel for the appellant insurer and also the learned counsel for the 1st respondent/claimant/cross objector in Cross Objection No.42 of 2014.
10. The issue that arises for consideration in this appeal and the cross objection is as to whether the compensation awarded by the Tribunal under various heads represents just and reasonable compensation.
11. In State of Haryana v. Jasbir Kaur
