ABOOBACKER v. NATIONAL INSURANCE CO. LTD. (CO No. 52 of 2023; MACA No. 2569 of 2016)

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` WEDNESDAY, THE 5[TH] DAY OF APRIL 2023 / 15TH CHAITHRA, 1945 ``` ``` CO NO. 52 OF 2023 ``` ``` AGAINST THE AWARD IN OPMV 1607/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ``` ``` ,KOZHIKODE ``` ## `CROSS OBJECTOR/RESPONDENT/PETITIONER IN OP(MV):` ``` ABOOBACKER AGED 48 YEARS S/O. PAREEKUTTY, AGED 48 YEARS, RESIDING AT PUNNIYATH HOUSE, KARINKAPPARA, P.O. OMACHAPPUZHA, THEYYALA, MALAPPURAM , PIN - 676320 BY ADVS. AVM.SALAHUDIN A.D.DIVYA ``` ## `RESPONDENT/APPELLANT/3RD RESPONDENT IN OP(MV):` ``` NATIONAL INSURANCE CO. LTD., KOZHIKODE, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,2ND FLOOR, OMANA BUILDING, M.G. ROAD, KOCHI., PIN - 682035 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2023, ALONG WITH MACA.2569/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [CO Nos.52/2023, 2569/2016] ``` ``` 2 ``` # `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 5[TH] DAY OF APRIL 2023 / 15TH CHAITHRA, 1945 ``` ## `MACA NO. 2569 OF 2016` ``` AGAINST THE ORDER/JUDGMENTOPMV 1607/2014 OF MOTOR ACCIDENT CLAIMS ``` ``` TRIBUNAL ,KOZHIKODE ``` ## `APPELLANT/3RD RESPONDENT:` ``` THE NATIONAL INSURANCE CO.LTD KOZHIKODE, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G. ROAD, KOCHI -35. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ## `RESPONDENT/CLAIMANT:` ``` ABOOBACKER S/O. PAREEKUTTY, RESIDING AT PUNNIYATH HOUSE, KARINKAPPARA, P.O. OMACHAPPUZHA, THEYYALA, MALAPPURAM-676 320.. BY ADVS. SMT.RENY ANTO SRI.SABIN BABU AVM SALAHUDDEEN A.D.DIVYA(K/1001/2010) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2023, ALONG WITH CO.52/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [CO Nos.52/2023, 2569/2016] ``` ``` 3 ``` ## `JUDGMENT` ``` This appeal and Cross Objections arise from the final Award of the Motor Accidents Claims Tribunal, Kozhikode, in OP(MV)No.1607/2014. ``` ``` 2.The afore original petition has been filed by the Cross Objector, who was involved in a road accident on 26.07.2014 - when the scooter he was riding was collided with the offending Car, driven in a rash and negligent manner. He had to undergo long period of treatment, including 17 days as an inpatient; and he, thereupon, filed the Original Petition seeking compensation of an amount of Rs.12,85,000/-, which has been, in fact, allowed to a sum of Rs.10,47,120/-. ``` ``` 2.The National Insurance Company Limited - which insured the offending vehicle, has filed the afore appeal, asserting that the ``` ``` [CO Nos.52/2023, 2569/2016] ``` **==> picture [8 x 9] intentionally omitted <==** ``` compensation awarded by the learned Tribunal is excessive; while, the Cross Objector, through the Cross Objection, contend that larger sums are eligible to him. ``` ``` 3.I have heard Smt.K.S.Santhi - learned ``` ``` counsel for the appellant - Insurance Company and Sri.A.V.M.Salahuddeen - learned counsel ``` ``` appearing for the Cross Objector; and have evaluated the afore rival contentions of the parties, testing them on the worth of the evidence on record – copies of which have been made available to this Court by the learned ``` ``` counsel for the parties across the Bar, with the ``` ``` express consent that they can be acted upon, without dispute. ``` ``` 4.The essential facts involved in this ``` ``` case are without dispute, as also the cause of the accident and the findings of the learned ``` ``` [CO Nos.52/2023, 2569/2016] ``` ``` 5 ``` ``` Tribunal regarding the negligence of the ``` ``` offending vehicle. ``` ``` 5.The controversy between the parties is confined to the quantum of compensation computed by the learned Tribunal; and in particular the notional income adopted by it in favour of the Cross Objector. ``` ``` 6.The Cross Objector claimed that he was a businessman, dealing in retail sale of “masala” and that he was earning Rs.20,000/- per month. However, as rightly found by the learned Tribunal, except his statement given to the police and recorded in Ext.A1 FIR, no evidence has been led by him to establish either his avocation or the claimed income. Obviously, therefore, the learned Tribunal could have only reckoned his notional income; but while doing so, it should have been guided by the ``` ``` [CO Nos.52/2023, 2569/2016] ``` ``` 6 ``` ``` standardization postulated by the Hon’ble Supreme Court inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited[(2011) 13 SCC 236]. In this precedent, ``` ``` the Hon’ble Supreme Court has declared that, even in the case of a “Coolie”, or a person with unascertainable income, in the year 2014 – when ``` ``` the accident occurred - the minimum income to be reckoned is Rs.9,500/-. I see no reason why even this has been denied. ``` ``` 7.However, since the statements in the FIR have not been controverted by the Insurance Company, in case safely be presumed that the Cross Objector was not merely a “Coolie”, but someone engaged in a better avocation. Therefore, as per Rajani v. Oriental Insurance ``` ``` Company[(2022) 5 KLT online 1012 SC],this Court is now obliged to take a more robust view; ``` ``` [CO Nos.52/2023, 2569/2016] ``` **==> picture [8 x 9] intentionally omitted <==** ``` and I, therefore, fix the notional income in favour of the Cross Objector to be Rs.10,000/-, which is a mere Rs.500/- more than what has been ``` ``` authorized in Ramachandrappa (supra) in the case of a Coolie. ``` ``` 8.That being said, the percentile of ``` ``` disability recorded by a competent Medical Board ``` ``` in favour of the Cross Objector, in Ext.C1 is ``` ``` 25%. This is also without dispute. The Hon’ble Supreme Court has declared in various judgments, ``` ``` includingSyed Sadiq and others v. Divisional ``` ``` Manager, United India Insurance Company Ltd. ``` ``` [(2014) 2 SCC 735],Vijaya Kumar Rastogi v. ``` ``` Uttar Pradesh State Roadways Transport ``` ``` Corporation [AIR 2018 SC 819] andErudhaya – ``` ``` Priya v. State Express Transport Corporation Ltd. [2020 ACJ 2159],Satheesh E. v. The New ``` ``` India Assurance Company Ltd. and Others [(2022) ``` ``` [CO Nos.52/2023, 2569/2016] ``` **==> picture [8 x 9] intentionally omitted <==** ``` SCC OnLine 1828], that in cases where the ``` ``` percentile of permanent disability is found to be 25% or thereabout, future prospects becomes eligible to the injured. Going byNational ``` ``` Insurance Company Ltd. v. Pranay Sethi [2017 (4) ``` ``` KLT 662], the percentile of future prospects to be adopted is 25% - but not 50% as has been done by the learned Tribunal - which certainly ``` ``` becomes eligible to him. ``` ``` 9.I am persuaded to the afore view also because the medical evidence on record, particularly Ext.A2 - Wound Certificate ``` ``` establishes that the Cross Objector had suffered fracture of femur and knee joint. The union of ``` ``` these fractures would have taken some time and the learned Tribunal has, in fact, reckoned the period for such purpose to be nine months, which, in my view, was correct. The compensation ``` ``` [CO Nos.52/2023, 2569/2016] ``` **==> picture [8 x 9] intentionally omitted <==** ``` awarded by the learned Tribunal under the heads “Loss of Amenities” and “Pain and Suffering” of Rs.15,000/- and Rs.30,000/-, certainly, are not excessive; but am of the firm view that, taking ``` ``` into account the pain and agony that would have been surely endured by the Cross Objector, the compensation under the head “Pain and Suffering” require to be enhanced marginally, which I propose to be Rs.40,000/-. ``` ``` 10.Finally, on the question of future ``` ``` treatment, the learned Tribunal appears to have granted sums under such head without any evidence and without even a discussion about it ``` ``` in the impugned award. I am afraid that, ``` ``` therefore, the compensation under the said head cannot be sustained. ``` ``` Resultantly, this Appeal and Cross Objection are allowed in the following manner: ``` ``` [CO Nos.52/2023, 2569/2016] ``` ``` 10 ``` ``` a)The compensation under the head “Loss of ``` ``` income due to disability”, is reduced to ``` ``` Rs.5,62,500/-, reckoning the notional income of the Cross Objector to be Rs.10,000/- per month ``` ``` with 25% future prospects added to it and his ``` ``` disability maintained as 25%, as correctly found ``` ``` by the learned Tribunal, based on Ext.X1 certificate. ``` ``` b)Axiomatically, the compensation under the head “Loss of Earnings” is enhanced to ``` ``` Rs.90,000/-, from Rs.80,000/- as awarded by the learned Tribunal, reckoning the notional income of the Cross Objector to be Rs.1,000/- per ``` ``` month, for nine months period, as correctly ``` ``` found by the learned Tribunal. ``` ``` c)The compensation under the head “Future Treatment”, of Rs.69,860/-, is deleted. ``` ``` d)The compensation under the head “Pain ``` ``` [CO Nos.52/2023, 2569/2016] ``` ``` 11 ``` ``` and Suffering” is enhanced Rs.40,000/-, from Rs.30,000/- now awarded by the learned Tribunal. ``` ``` (e)In all other heads, the compensation ``` ``` awarded by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the Cross Objector will be ``` ``` entitled to recover the compensation, as modified by this Court, from the respondent – Insurance Company, along with interest at the rate of 8.5% ``` ``` (reducing it from the figure of 9% awarded by the ``` ``` learned Tribunal, because it is too high), from ``` ``` the date of filing of the claim until it is realised. ``` ``` The Cross Objector will also be entitled to ``` ``` proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance ``` ``` [CO Nos.52/2023, 2569/2016] ``` **==> picture [16 x 9] intentionally omitted <==** ``` Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` SAS ```