Ashwin Paul v. Jerish Xavier and Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **FRIDAY, THE 24[TH] DAY OF MAY 2024 / 3RD JYAISHTA, 1946** **MACA NO. 192 OF 2023** **[AGAINST THE AWARD DATED 14.10.2022 IN OP(MV) NO.667 OF 2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VIII, ERNAKULAM / IV ADDITIONAL MACT-IV, ERNAKULAM]** ## **APPELLANT/PETITIONER:** **ASHWIN PAUL AGED 22 YEARS** **S/O. FRANCIS XAVIER, POOPPADY HOUSE, MUNDAMVELI, NEAR JISHY HOSPITAL, MUNDAMVELI, KOCHI, PIN - 682507** **BY ADVS. A.R.NIMOD M.A.AUGUSTINE** ## **RESPONDENTS/RESPONDENTS:** - **1 JERISH XAVIER S/O. XAVIER, AKKARA HOUSE, NEAR INDUSTRIAL ESTATE,OLLUR P.O., THRISSUR, PIN - 680306** - **2 ORIENTAL INSURANCE COMPANY LIMITED, I.P. CLAIM CELL, METRO PALACE, KOCHI-682035 , REPRESENTED BY BRANCH MANAGER.** **BY ADVS. PMM.NAJEEB KHAN SAHEERA K.(K/001432/2018)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.192 OF 2023 :-2-: ## **J U D G M E N T** **Oral judgment dated 23.05.2024 is** ## **recalled.** **2. This appeal has been impelled by the claimant in O.P.(MV) No.667/2019 before the Motor Accidents Claims Tribunal-IV, Ernakulam. The respondents herein are the respondents before the Tribunal.** **3. According to the appellant, he was a pillion rider on a motorcycle No. KL-43-J-8764 going through Ernakulam-Chathiyath public road. When he reached near Prestige flat, car No.KL-08AP-4145 driven by the first respondent came and hit on the motorcycle on which the appellant was a pillion rider and the appellant suffered serious injuries. The appellant approached the tribunal claiming a total compensation of** ` **10,00,000/-.** MACA NO.192 OF 2023 :-3-: **4. The first respondent remained** _**ex parte.**_ **The second respondent filed a written statement admitting the insurance policy, but disputing the quantum of compensation claimed. No oral evidence was adduced on either side. Exts.A1 to A8 were marked on the side of the appellant. Ext.C1 disability certificate was marked. The Tribunal, on proper appreciation of the evidence, passed an award for an amount of** ` **8,25,000/- together with interest** @ **8% per annum from the date of petition till realisation, with proportionate costs. The appellant has come up before this Court seeking enhancement of compensation.** **5. I have heard the learned counsel for the appellant as well as the learned Standing Counsel for the second respondent.** **6. Notice to the first respondent was dispensed with since the policy was admitted and** MACA NO.192 OF 2023 :-4-: **no right of recovery was ordered against the first respondent.** **7. The main ground on which enhancement of compensation is claimed by the counsel for the appellant is that the Tribunal failed to consider the future prospects of the appellant, along with the notional income, while awarding compensation.** **8. Learned counsel for the appellant submits that the appellant was aged only 17 years at the time of the accident and though he was a student, he was also working as assistant with an event management company and he was earning an income of** ` **25,000/-. According to the learned counsel for the appellant, income could not be proved by using any documentary evidence. Learned counsel referred to the following judgments viz., Syed Sadiq and others v. Divisional Manager, United India Insurance Co. [(2014)2 SCC 735]; The Manager, Universal Sompo General Insurance Co.Ltd. v. Suja** MACA NO.192 OF 2023 :-5-: **George and others (MACA No.1860/2015), Jagdish v. Mohan and others [2018 ACJ 1011], Vijay Kumar Rastogi v. Uttar Pradesh State Roadways Transport Corporation [2018 AIR SC 819], Lalan.D.@ Lal & another v. The Oriental Insurance Company Ltd [2020 AIR SC 4508], Erudhaya Priya v. State Express Transport Corporation Ltd. [2020 ACJ 2159], Pappu Deo Yeadav v. Naresh Kumar and others [AIR 2020 SC 4424], Satheesh.E. v. The New India Assurance Co.Ltd (Civil Appeal Nos.8059-8060/2022] and Muhammed v. United India Insurance Co.Ltd** **[2023 ACJ 894]. Relying on the aforesaid judgments, learned counsel submits that it is not on the basis of the permanent disability that future prospects have to be calculated, but it is a component of income and the appellant, being very young person, future prospects have to be considered on the basis of the table given in National Insurance Co.Ltd. v. Pranay Sethi and** MACA NO.192 OF 2023 ## :-6-: ## **others [(2017) 16 SCC 68].** **8.a. Learned counsel also referred to Satheesh.E. (supra), wherein the Honourable Supreme Court has held that the claimant therein would be entitled to an additional compensation towards future prospects @ 25% of the monthly income in view of the fact that he was 48 years old at the time of accident. In that case, though the disability of the claimant is 24%, the Apex Court has not taken into consideration the percentage of disability, but has only considered future prospects of the injured, who is only 48 years and awarded future prospects @ 25% based on Pranay Sethi (supra). Learned counsel for the appellant also referred to the judgment in M.A.C.A.No.1860 of 2015, wherein this Court had awarded 30% towards future prospects, though the disability of the claimant was only 8%, relying on the judgment of the Apex Court in Syed Sadiq (supra).** MACA NO.192 OF 2023 :-7-: **8.b. Per contra, the learned Standing Counsel for the Insurance Company submits that the claimant, being a student at the time of the accident and has only 18.15% permanent disability, no compensation can be considered under the head ‘future prospects’. The learned Standing Counsel further submits that in Pranay Sethi(supra), it was a case of death and in this case, the claimant had only 18.15% permanent disability, and hence no amount shall be granted as regards the future prospects.** **8.c. As far as the claimant is concerned, who was aged 17 years, as rightly pointed out by the learned counsel for the appellant, future prospects have nothing to do with the permanent disability of the claimant, as held in Satheesh.E. (supra). It was further held in the afore case that the declarations in Pranay Sethi (supra) as stated in paragraph 59.4, entitle the claimant,** MACA NO.192 OF 2023 :-8-: **who suffered 24% whole body disability, future prospects. It is true that the permanent disability of the claimant herein is only 18.15%. The disability to an extent also affects the future prospects of the claimant. The tribunal, while fixing the notional income, has taken more than what is prescribed as per the dictum laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance [(2011)13 SCC 236 (DB)].** **8.d. On a perusal of the award, it is seen that the Tribunal has found that the injury will affect his earning capacity, but no amount was awarded towards the future prospects.** **8.e.On consideration of the entire facts of the case, I am inclined to grant 15% towards future prospects to the notional income arrived at by the Tribunal. Accordingly, an amount of** ` **1,800/- has to be added to the notional income of** MACA NO.192 OF 2023 :-9-: ` **12,000/- fixed by the tribunal, which comes to** ` **13,800/- for granting compensation for continuing or permanent disability. Thus, the compensation awarded under the head of compensation for continuing or permanent disability is recalculated thus:** ` **13,800 x 12 x 18 x18.15/100, which comes to** ` **5,41,015/-. The amount awarded by the tribunal under the said head was** ` **4,70,448/-. Thus, there will be an additional amount of** ` **70,567/- (Rupees Seventy Thousand Five Hundred and Sixty Seven only) as compensation under the head.** **9. Under all other heads, I find that the compensation granted by the tribunal is just and reasonable and the amount awarded by the Tribunal under the other heads shall remain unaltered.** **In the result, this appeal is allowed in part. The award dated 14.10.2022 passed by the Additional Motor Accidents Claims Tribunal-IV,** MACA NO.192 OF 2023 :-10-: **Ernakulam in O.P(MV) No.667/2019 is hereby modified by awarding an additional compensation of** ` **70,567/-(Rupees Seventy Thousand Five Hundred and Sixty Seven** **only) over and above the compensation awarded by the** **tribunal with interest @ 8% per annum, to the appellant, from the date of petition till realization and proportionate costs. The second respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The appellant/claimant shall furnish copies of the PAN Card, ADHAAR Card and bank details before the second respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit** MACA NO.192 OF 2023 :-11-: **being made, the entire amount shall be disbursed to the appellant at the earliest, in accordance** **with law.** **Sd/-** **SHOBA ANNAMMA EAPEN, JUDGE** **MBS/-**