Harzhad Azeez v. Reliance General Insurance Company Limited (C.O.No.16 of 2018 & MACA No.316 of 2017)

## **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. 16 OF 2018 AGAINST THE ORDER/JUDGMENT MACA 316/2017 OF HIGH COURT OF** **KERALA** ## **CROSS OBJECTOR/RESPONDENT/CLAIMANT:** HARZHAD AZEEZ, S/O. AZEEZ, AGED 25 YEARS, H. NO. VI/538, BASSAR ROAD, MATTANCHERY P.O. BY ADVS. P.K.IBRAHIM SREEJI K.B. FATHIMA FIDHA ## **RESPONDENT/APPELLANT/3RD RESPONDENT:** RELIANCE GENERAL INSURANCE COMPANY LIMITED, REP. BY IT'S LEGAL CLAIMS MANAGER, RELIANCE GENERAL INSURANCE COMPANY LIMITED, ERNAKULAM – 682 036. BY ADV SRI.R.AJITH KUMAR (128/84) THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2023, ALONG WITH MACA.316/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.O.No.16/2018 & M.A.C.A.No.316 of 2017 : 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. 316 OF 2017** **AGAINST THE ORDER/JUDGMENT OPMV 1308/2012 OF SPECIAL C SPE/CBI-I&3 ADDITIONAL DISTRICT COURT / I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, EKM** ## **APPELLANT/3RD RESPONDENT:** RELIANCE GENERAL INSURANCE CO.LTD., REP. BY ITS LEGAL CLAIMS MANAGER, RELIANCE GENEAL INSURANCE CO.LTD., ERNAKULAM BY ADV SRI.R.AJITH KUMAR (128/84) ## **RESPONDENT/CLAIMANT:** HARSHAD AZEEZ S/O AZEEZ, H.NO.VI/538, BASSAR ROAD, MATTANCHERRY P.O BY ADVS. P.K.IBRAHIM SREEJI K.B. FATHIMA FIDHA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2023, ALONG WITH CO.16/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.O.No.16/2018 & M.A.C.A.No.316 of 2017 : 3 : ## **DEVAN RAMACHANDRAN, J.** **========================= C.O.No.16 of 2018 & M.A.C.A.No.316 of 2017 ========================== Dated this the 5[th] day of April, 2023** ## **JUDGMENT** This Appeal and Cross Objections arise out of the final Award of the Additional Motor Accidents Claims Tribunal, Ernakulam (the 'Tribunal' for short), in OP(MV)No.1308 of 2012. 2. The afore Original Petition was filed by the Cross Objector – Sri.Harzhad Azeez, asserting that he was involved in a road accident on 05.11.2010, when the motorcycle ridden by him was hit by the offending car, driven in a rash and negligent manner. He says that he suffered very grievous injuries and had to be hospitalised for nearly 20 days, and then constrained to take follow-up medical treatment and physiotherapy. He thus filed the afore Original Petition seeking compensation of an amount of Rs.38,00,000/-, limited Rs.10,00,000/-; and which has been allowed only to a sum of Rs.11,54,774/-. 3. The Reliance General Insurance Company Limited – the appellant in MACA No.316/2017, however, challenges the afore Award of the learned Tribunal as being excessive, particularly because it has granted compensation to the Cross Objector both C.O.No.16/2018 & M.A.C.A.No.316 of 2017 : 4 : for “Disability” and “Partial Loss of Earning Capacity” simultaneously. They also assert that the notional income adopted by the learned Tribunal in favour of the Cross Objector is wrong; and thus prayed that this appeal be allowed. 4. While so, the Cross Objector has filed C.O.No.16 of 2018, asserting that the notional income adopted by the learned Tribunal is incorrect and less than what is prescribed; and praying that the compensation under both heads “Disability” and “Actual Loss of Earning” be enhanced. 5. I have heard Smt.K.S.Santhi, learned Standing Counsel for the Insurance Company – the appellant in MACA No.316 of 2017; and Sri.P.K.Ibrahim – learned counsel appearing for the Cross Objector. 6. As evident from the afore narrative, the parties are not in dispute with respect to the facts involved in this case. The controversy projected by the Insurance Company is against the learned Tribunal awarding compensation simultaneously under the heads “Disability” and “Partial Loss of Earning Capacity”; while the Cross Objector claims that the notional income adopted in his favour was incorrect. 7. I will first deal with the adequacy of the notional income adopted by the learned Tribunal in favour of the Cross Objector. C.O.No.16/2018 & M.A.C.A.No.316 of 2017 : 5 : 8. The Cross Objector asserts that he was working as a computer operator at the time of the accident, earning Rs.300/per day. It is also without dispute that he was only 20 years old at that time; and on such basis, he claimed compensation for “Disability” and “Actual Loss of Earning”. The learned Tribunal correctly held that there is no evidence to establish either the avocation or the income of the Cross Objector; but that, Ext.A7 along with Ext.A32, would show that he is a Diploma holder in Supply Chain Logistic and Shipping Management and that he had completed a job Internship Training for Logistics students also. It also then found, through Exts.A8 to A13, that he was a wrestler who had done well in the said field, though there were no certificates to show that he had participated in such competitions after the year 2008. On such basis, the learned Tribunal took the notional monthly income of the Cross Objector to be Rs.4,000/- and then added 50% as future prospects. 9. However, even in the case where the income has not been proved, the Hon'ble Supreme Court in **Ramachandrappa** **v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** postulates that the notional income of a “Coolie” or a person with an unascertainable income, in the year 2010 – when the accident occurred, must be reckoned to C.O.No.16/2018 & M.A.C.A.No.316 of 2017 : 6 : be a minimum of Rs.7,500/-. In this case, there is sufficient evidence to show that the Cross Objector was not merely a “Coolie”, but had sufficient qualification and experience to have secured a much better avocation. The factum that he was a good wrestler would certainly also have helped him in doing well in his life. I am, therefore, sure in my mind that the dictum of the Hon'ble Supreme Court in **Rajani v. Oriental Insurance Co.Ltd. [2022 (5) KLT Online 1012]** should also come into play, which enjoins this Court to take a more robust view in such circumstances. I, therefore, propose to fix the notional income of the Cross Objector to be Rs.8,000/- per month, which is only a mere Rs.500/- more than what is authorised by **Ramachandrappa (supra)** in the case of a “Coolie”. 10. Now coming to the question of future prospects, the learned Tribunal has erred in adopting 50% in such regard because, **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662]** sanctions only 40% in the case of a person without permanent job. This, of course, certainly has to be offered to the Cross Objector. 11. Now, turning to the arguments of the Insurance Company, they are right in asserting that the learned Tribunal has awarded compensation to the Cross Objector both under the C.O.No.16/2018 & M.A.C.A.No.316 of 2017 : 7 : heads “Disability” and “Loss of Earning Capacity”. This does not appear to be correct, going by the judgment of this Court in **George v. E. T. Thomas & Ors [2013 (1) KHC 453];** and it is also well settled that, in cases of injury, the compensation has to be confined to “Disability”, which would subsume the requirements of “Loss of Earning” also. It is, therefore, that law prescribes that the notional income of the injured be taken and eligible future prospects added to it, and then the applicable multiplier adopted, as per **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802].** 12. There is little doubt, it being uncontested, that the multiplier applicable in the case of the Cross Objector is '18', since he was only 20 years old at the time of the accident; and that his percentile of disability is 38.6%, as has been certified in Ext.X1 – Disability Certificate, which is issued by a competent Medical Board. However, the learned Tribunal appears to have reduced it to 30%, while computing compensation under one head, saying that same must be reckoned as the functional disability; but am of the view that this is very exiguous. This is because, the medical evidence on record, particularly Ext.A3 – Wound Certificate and A4 – Discharge Summary, show that the Cross Objector sustained the following injuries: C.O.No.16/2018 & M.A.C.A.No.316 of 2017 : 8 : 1. Fracture of L2 Vertibra 2. Fracture of clavicle (Rt) 3. Contusion of chest, lungs (Rt) 4. Abrasion on right eye, right hip 5. C6 root avulsion of right side 6. Multiple abrasions 7. Blunt abdominal trauma with Liver Laceration and contusion with hemoperitoneum 8. Contusion on the right lung, right pleural effusion. This is more so because, the learned Tribunal has also recorded that the right hand of the Cross Objector has been rendered without power; while, he is unable to climb stairs and lift weights in future. 13. As I have said above, he was treated as an inpatient for nearly 20 days, and the percentile of disability is 38.6%, as per Ext.X1. In fact, interestingly, the learned Tribunal has accepted this percentile for computing the compensation under the head “Permanent Disability”; but then reduced it to 30%, for reckoning the “Partial Loss of Earning”. As I have already said above, these cannot run together; and am, therefore, of the view that the percentile to be adopted for the case of “Disability” C.O.No.16/2018 & M.A.C.A.No.316 of 2017 : 9 : continues to be 38.6%, as certified by the competent Medical Board in Ext.X1, which remains unimpeached and without any contest. 14. Since the Insurance Company raises no dispute regarding other heads, except the notional income adopted – which I have already answered as above, I deem it appropriate to dispose of this Appeal and Cross Objections, in the following manner: (a) The compensation under the head “Disability” is revised to Rs.9,33,811/-, from Rs.3,33,504/-, reckoning the notional income of the Cross Objector to be Rs.8,000/- per month, with 40% future prospects added to it and his percentile of disability reckoned as 38.6%, as per Ext.X1. (b) Axiomatically, the compensation awarded by the learned Tribunal under the head “Partial Loss of Earning Capacity”, to the sum of Rs.3,88,800/-, is deleted. - (c) In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the Cross Objector will be at full liberty to recover the compensation, as modified by this Court, from the C.O.No.16/2018 & M.A.C.A.No.316 of 2017 : 10 : Insurance Company, along with interest at the rate of 8%, as awarded by the Tribunal, from the date of the claim until it is recovered. He will also be entitled to proportionate costs, on the enhanced amount, as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. After I dictated this part of the judgment, Sri.P.K.Ibrahim, intervened to say that his client has also sought Rs.2,00,000/towards “Future Treatment Expenses”. However, I do not find any evidence to establish that the Cross Objector requires any such sum; and in the absence of the same, as rightly found by the learned Tribunal, I cannot accede to it. The said contention is hence repelled. **Sd/DEVAN RAMACHANDRAN JUDGE** anm