The New India Assurance Company Limited Neyyattinkara now represented by its Manager, Regional Office, M.G Road, Kochi 11 V. Carold Wilson Lazer J

CO/80/2018

AI Insights

The case involves an appeal by The New India Assurance Company Limited against the award of compensation to Carold Wilson Lazer, who sustained severe injuries in a motorcycle accident caused by an autorickshaw. The Motor Accidents Claims Tribunal awarded Rs.54,37,000/- to Lazer, which the insurance company contested as excessive. Lazer, in turn, filed a cross objection claiming the compensation was inadequate. The High Court examined the compensation under various heads such as loss of earnings, permanent disability, pain and suffering, and future medical expenses, adjusting the amounts based on evidence and expert assessments.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 798359 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 12-06-2023
• Assessment Year: misc
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: BLAZE JOSE
• Assessee Lawyers: MATHEWS JACOB; P JACOB MATHEW
• Keywords: Compensation; Motor Accident Claims Tribunal; Negligent driving; Permanent disability; Personal Injury

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 12TH DAY OF JUNE 2023 / 22ND JYAISHTA, 1945 MACA NO. 1934 OF 2014 AGAINST THE ORDER/JUDGMENT IN OPMV 181/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA APPELLANT: THE NEW INDIA ASSURANCE COMPANY LIMITED NEYYATTINKARA NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G ROAD, KOCHI 11 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS: CAROLD WILSON LAZER J CAROILLAM, CHINNATHURAI, THUTHOON, NOW RESIDING AT SEHIYON, KARICHAL, KANJIRAMKULAM 695320 BY ADVS. SRI..BLAZE K.JOSE (CAVEATOR) BLAZE K.JOSE(K/322/1997) CAVEATER THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 12.06.2023, ALONG WITH CO.80/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1934 OF 2014 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 12TH DAY OF JUNE 2023 / 22ND JYAISHTA, 1945 CO NO. 80 OF 2018 AGAINST THE ORDER/JUDGMENT IN MACA 1934/2014 OF HIGH COURT OF KERALA PETITIONER: CAROLD WILSON LAZER.J CAROILLAM, CHINNATHURAJI, THUTHOON, NOW RESIDING SEHIYON, KARICHAL, KANJIRAMKULAM – 695 524 BY ADV SRI.BLAZE K.JOSE RESPONDENT: THE NEW INDIA ASSURANCE CO. LTD REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI - 11 BY ADV SRI.P.JACOB MATHEW THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 12.06.2023, ALONG WITH MACA.1934/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1934 OF 2014 3 J U D G M E N T [MACA No.1934/2014 and C.O. No. 80/2018] The appeal is filed by the insurance company against the award dated 11.04.2014 in O.P.(M.V.) No.181/2010 on the files of the Motor Accidents Claims Tribunal, Neyyattinkara. The claimant is the Cross Objector. The parties are referred to as per their status in the claim petition. 2. The petitioner sustained personal injuries while travelling as a pillion rider on a motorcycle when the motorcycle was hit by an autorickshaw bearing registration No. KL-01/H-5216 driven by the 1st respondent. The 4th respondent is the insurer of the autorickshaw. The petitioner was treated as an inpatient for 386 days. The petitioner claimed an amount of Rs.65,00,000/- as compensation for the personal injuries sustained in the accident. 3. The Tribunal found that the accident happened due to the negligent driving of the autorickshaw by the 1st respondent and awarded an amount of Rs.54,37,000/- together with 9% interest per annum from the date of this petition till realisations with proportionate costs as compensation to the petitioner. The 4th MACA NO. 1934 OF 2014 4 respondent insurance company was directed to satisfy the award. 4. The compensation was awarded under the following heads; Sl. No. Head of Claim Amount claimed Amount awarded 1 Loss of earning 3,00,000/- 7,64,424/- 2 Transportation expenses 50,000/- 10,000/- 3 Extra nourishment 1,00,000/- 5,000/- 4 Damage to clothing 1,000/- 500/- 5 Medical Expenses 22,00,000/ - 17,11,500/- 6 Bystanders expense 40,000/- 38,600/- 7 Pain and suffering 2,00,000/- 2,00,000/- 8 Loss of amenities and enjoyment in life 5,00,000/- 6,50,000/- 9 Permanent disability -- 19,56,928/- 10 Future medical expense -- 1,00,000/- Total 54,36,952/- rounded to 54,37,000/- 5. The appeal is preferred by the insurance company contending that, the amount of compensation awarded under various heads is excessive and exorbitant. MACA NO. 1934 OF 2014 5 6. The cross objection is filed by the petitioner contending that the compensation awarded by the Tribunal is totally inadequate. 7. In view of the rival contentions, this Court has to find out whether the compensation awarded by the Tribunal is just and reasonable; if not what is the reasonable compensation that can be awarded under various heads. 8. At the time of accident, the petitioner was working as an Assistant Professor in the Department of Mathematics, Lourdes Matha College of Science and Technology, Kuttichal. Due to the injuries sustained in the accident, he was not in a position to continue his employment as Assistant Professor and he was engaged by the management in the office work, on sympathetic consideration. He was aged 34 years at the time of accident and was unmarried. As per Ext. A8 certificate, the petitioner was drawing an amount of Rs.28,312/- as salary. He relied on Ext.A27 disability certificate to show that he was having 40% permanent disability. Relying on Ext.A8 salary certificate and deducting 10% towards income tax, the Tribunal MACA NO. 1934 OF 2014 6 arrived at the annual income of the petitioner as Rs.3,05,770/-. Taking into account the age of the petitioner, the Tribunal adopted ‘16’ as the multiplier and on the basis of Ext.A27 disability certificate, fixed the percentage of his functional disability as 40%. 9. Since the appellant/insurance company had disputed the percentage of disability certified in Ext.A27, this Court, vide order dated 16.02.2023, referred the petitioner to the Medical Board for assessing his permanent disability. The Medical Board, assessed 50% permanent partial disability to the right lower limp as per certificate dated 22.03.2023. Later, pursuant to the directions of this Court dated 12.04.2023, the Medical Board assessed the expenses for future treatment as Rs.80,000 to Rs.1,00,000. 10. The Tribunal has fixed the monthly income of the petitioner on the basis of Ext.A8 salary certificate. The functional disability of the petitioner was taken as 40%. Though the petitioner lost his employment as Assistant Professor, it has come out in evidence that he has been assigned office work by MACA NO. 1934 OF 2014 7 the college management. Thus, even after the accident, he was working, though with a lesser scale of salary. In view of the present avocation of the petitioner, his monthly income has to be re-fixed. In the facts and circumstances of the case, I find that an amount of Rs.22,000/- can be fixed as the monthly income of the petitioner for the purpose of computation of compensation. With regard to the functional disability of the petitioner, in the light of the medical certificate issued by the Medical Board, his functional disability can be taken as 40%. 11. The Tribunal has awarded an amount of Rs.7,64,424/- towards loss of earnings. The Tribunal found that petitioner could not work for 27 months as he was in incapacitated due to the accident. The petitioner is entitled for compensation towards the loss of earnings only from the date of accident till the filing of claim petition. The accident took place on 22.02.2009 and the claim petition was filed on 27.08.2010. Accordingly, the compensation for loss of earning is re-fixed as Rs.5,09,616/- (Rs.28,312 X 18). Since an amount of Rs.7,64,424/- has been awarded, an amount of Rs.2,54,808/- has to be deducted MACA NO. 1934 OF 2014 8 under this head. 12. Towards the compensation for permanent disability, in view of my findings in foregoing paragraphs, the monthly income of the petitioner is fixed as Rs.22,000/- and the multiplier is fixed as ‘16’ and the percentage of functional disability is taken as 40%. The petitioner is also entitled to add 50% of the income towards future prospectus. Accordingly, the permanent disability of the petitioner is reworked as Rs.25,34,400/- (33,000 X 12 X 16 X 40/100). Since the petitioner has already been awarded an amount of Rs.19,56,928/-. The petitioner will be entitled for an enhanced amount of Rs.5,77,472/-. 13. Towards pain and suffering, the petitioner has been awarded an amount of Rs.2,00,000/-. Considering the nature of injuries sustained by the petitioner, I find that the compensation awarded under the said head is just and reasonable. 14. Towards loss of amenities and enjoyment in life an amount of Rs.6,50,000/- has been awarded. Since the petitioner has been adequately compensated under other heads, I find MACA NO. 1934 OF 2014 9 that an amount of Rs.5,00,000/- will be a just and reasonable compensation under the head of loss of amenities and enjoyment in life. Accordingly, I fix the compensation for loss of amenities and enjoyment in life as Rs.5,00,000/-. An amount of Rs.1,50,000/- has therefore, to be deducted under the said head. 15. For future medical expense, the tribunal has awarded an amount of Rs.1,00,000/-. The Medical Board has assessed the future treatment expenses of the petitioner at Rs.1,00,000/-. However, the report furnished before this Court by the Medical Board shows that the same covers mainly the cost of the implants and surgical consumables. Taking into account, the report of the Medical Board as well as the nature of the injuries sustained by the petitioner, I fix the compensation for future medical expense at Rs.2,00,000/-. The petitioner will be entitled for an additional amount of Rs.1,00,000/- under the head of compensation for future medical expenses. However, it is made clear that, the amount awarded towards future medical expenses will cover interest only from the date of the award. MACA NO. 1934 OF 2014 10 16. The amounts awarded under other heads are just and reasonable. Accordingly, the petitioner will be entitled for an enhanced compensation of Rs.2,72,664/- (Rs.5,77,472+ 1,00,000-2,54,808-1,50,000). The appellant/ insurance company shall deposit the said amount with 9% interest per annum from the date of petition till realization with proportionate cost before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The cross objection is filed with delay of 1113 days. While calculating the interest, the petitioner will not be entitled for interest for the period of delay of 1113 days. Sd/- MURALI PURUSHOTHAMAN JUDGE LU MACA NO. 1934 OF 2014 11 APPENDIX OF CO 80/2018 PETITIONER ANNEXURES : ANNEXURE 1 A COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR.R.MOHANDHAS, SUSHRUSHAH HOSPITALS, NAGERCOIL DATED 03.05.2014. ANNEXURE 2 A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 06.01.2017 ISSUED BY DR.Y.JOSEPH SEN, CHIEF CIVIL SURGEON & ORTHOPAEDIC CONSULTANT, KANYAKUMARI GOVT. MEDICAL COLLEGE HOSPITAL. Annexure 3 THE ORIGINAL CERTIFICATE ISSUED BY DR. SUGANTHI DAVID, PROFESSOR & HOD, ORTHOPEDICS AT SREE MOOKAMBIKA INSTITUTE OF MEDICAL SCIENCE DATED 10/01/2023 // True Copy // PA To Judge "