Jeena v. Satheesh Babu K., Muraleedhara Panicker & Reliance General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 8[TH] DAY OF DECEMBER 2021 / 17TH AGRAHAYANA,** ## **1943** ## **RP NO. 625 OF 2021** **AGAINST THE ORDER/JUDGMENT IN MACA 1619/2011 OF HIGH COURT** ## **OF KERALA** ## **REVIEW PETITIONER/S:** JEENA,AGED 52 YEARS WIFE OF LATE GOPALAKRISHNAN, JEEBAS, VALLIKUNNU AMSOM AND DESOM, P.O.KADALUNDI NAGARAM, VALLIKUNNU, ATHANIKKAL, MALAPPURAM - 673 314. BY ADV JACOB ABRAHAM ## **RESPONDENT/S:** 1 SATHEESH BABU K. SON OF BALAN K., 24/09, KOLANGOTTY THARAVEEDU, PERUMUKHAM P.O., KOZHIKODE - 673 631. 2 MURALEEDHARA PANICKER SON OF BHASKARA PANICKER, THIRUMALAYIL KALLARIKKAL, BEYPORE AMSOM AND DESOM, P.O.BEYPORE, KOZHIKODE - 673 015. 3 RELIANCE GENERAL INSURANCE CO.LTD. REPRESENTED BY ITS BRANCH MANAGER, OPPOSITE TAGORE CENTENARY HALL, KOZHIKODE - 673 332. SRI.K.B.RAMANAND, R3 **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 08.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Review Petition No.625 of 2021 in MACA No.1619 of 2011 ## **C.S.DIAS, J.** ## **====================== Review Petition No.625 of 2021 in MACA No.1619 of 2011** ## **====================== Dated this the 8[th] day of December, 2021.** ## **ORDER** The review petition is filed to review the judgment in MACA 1619/2011. 2. The review petitioner was the appellant and the respondents were the respondents in the above appeal. 3. The review petitioner has in the memorandum of review petition averred that, there is an error apparent on the face of record because this Court omitted to award future prospects and compensation under the heads ‘disfigurement of face’ and ‘loss of marriage prospects’. Therefore, the judgment may be recalled and the appeal 3 Review Petition No.625 of 2021 in MACA No.1619 of 2011 be reheard. 4. Heard: Sri.Jacob Abraham, the learned counsel appearing for the review petitioner and Sri.K.B.Ramanand, the learned counsel appearing for the third respondent. As the third respondent has admitted the insurance policy, service of notice on the respondents 1 and 2 has been dispensed with. 5. Sri.Jacob Abraham argued that this Court in MACA 659/2017 has awarded future prospects to an injuredclaimant who had sustained a permanent disability of 15%. Similarly, the Honourable Supreme Court in **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd. - [(2014) 2 SCC 735], Vijay Kumar Rastogi vs. Uttar Pradesh State Roadways Transport Corporation [AIR 2018 SC 819]** and **Erudhaya Priya vs. State Express Transport Corporation Ltd [AIR 2020 SC 4284]** has awarded future prospects to the victims in the above cases who had sustained permanent 4 Review Petition No.625 of 2021 in MACA No.1619 of 2011 disability. Therefore, the review petitioner, who has sustained a permanent disability of 25%, as per Ext C1, is also entitled to future prospects. Likewise, the review petitioner is also entitled compensation under the heads ‘disfigurement of face’ and ‘loss of marriage prospects’. Hence, the review petition may be allowed and the impugned judgment may be recalled and appeal be reheard. 6. Sri.K.B Ramanand opposed the review petition by contending that this Court has already awarded reasonable and just compensation. The decisions relied on by the learned counsel appearing for the appellant are not applicable in the facts and circumstances of the case. Hence, the review petition may be dismissed. 7. The point that arises for consideration in this review petition is whether there is any error apparent on the face of record to review the impugned judgment? 5 Review Petition No.625 of 2021 in MACA No.1619 of 2011 8. The trump card of Sri.Jacob Abraham was that this Court and the Honourable Supreme Court have in the afore-cited precedents awarded future prospects to persons with permanent disability similar to that of the review petitioner. Thus, the review petitioner is also entitled to compensation for future prospects. Similarly, as the result of the serious nature of injuries sustained by the review petitioner in the accident, she is also entitled to compensation under the heads ‘disfigurement of face’ and ‘loss of marriage prospects’. 9. The concept of awarding future prospects in injury cases was first considered in **V. Mekala v. M.Malathi and another – [(2014) 11 SCC 178]** wherein, the Supreme Court, while considering a case where the injured had suffered 70% permanent disability, held that the injured is entitled to future prospects. Subsequently, in **Jagdish v. Mohan and others [(2018) 4 SCC 571],** the Honourable Supreme Court, while 6 Review Petition No.625 of 2021 in MACA No.1619 of 2011 dealing with the case where the injured had suffered a permanent disability of 90%, due to the amputation of both hands, awarded future prospects on the ground that loss of hands is a complete deprivation of the ability to earn. Thereafter, the Honourable Supreme Court in **Anthony @ Anthony Swamy vs The Managing Director, K.S.R.T.C [ (2020) 7 SCC 161]** while considering a case of injury, where the victim had suffered 75% permanent disability, awarded future prospects. 10. In the instant case, it is evident from Ext C-1 disability certificate that, the review petitioner has suffered a permanent disability of 25% due to the right third nerve palsy with diplopia in primary position down gaze up gaze and partial optic atrophy and injuries sustained in the accident. Resultantly, this Court fixed the functional disability of the review petitioner at 25%. 11. Going by the ratio-decidendi in **V. Mekala, Jagdish** and **Anthony Swamy** (supra), future prospects is 7 Review Petition No.625 of 2021 in MACA No.1619 of 2011 directed to be granted only to those injured who are disabled from carrying on with their avocation, due to the injuries sustained in the accident. 12. The decision relied on by Sri.Jacob Abraham in MACA 659/2017 of this Court, based on **National Insurance Co.Ltd v Pranay Sethi -[(2017(4) KLT 662** **(SC)],** has no application to the facts and circumstances of the case because that was a case of death, but the present case is one of injury. Death and injury are on diametrically opposite spheres. 13. In **Erudhaya Priya, Vijay Kumar Rastogi** and **Syed Sadiq** (supra) **,** the Honourable Supreme Court has awarded future prospects considering the peculiar facts and circumstances of those case, but without considering the law laid down in **V. Mekala, Jagdish** and **Anthony Swamy** (supra). 14. As already observed the concept of awarding future prospects is to put the victim in the same 8 Review Petition No.625 of 2021 in MACA No.1619 of 2011 position as prior to the accident after taking into account the functional disability of the victim. 15. In the case at hand, the review petitioner has claimed that she was conducting a fancy-foot wear shop as per Ext.A-17 licence. There is little evidence on record to establish that the review petitioner has stopped her business due to the injuries sustained in the accident, and her avenues for expansion have got impaired. 16. It is also pertinent to note that, the review petitioner has not taken a ground in the memorandum of appeal that the Tribunal erred in not awarding ‘future prospects’ and compensation under the heads ‘disfigurement of face’ and ‘loss of marriage prospects’. The above points were also not argued at the time of hearing the appeal. It is for the first time in the review petition, that the above points have been raised; which is unsustainable in law and alien to review jurisdiction. 17. This Court while considering the appeal, after 9 Review Petition No.625 of 2021 in MACA No.1619 of 2011 comprehensively re-appreciating the pleadings and materials on record, had re-fixed the notional income of the appellant at Rs.5,000/-, instead of Rs.4,000/- fixed by the Tribunal; enhanced the compensation for loss of earnings by a further amount of Rs.6,000/-; assessed the functional disability of the appellant at 25% and consequently enhanced the compensation for loss due to disability from Rs.2,04,000/- to Rs.2,40,000/-. Accordingly, this Court had enhanced the compensation by a further amount of Rs.67,000/-. 18. Now the review petitioner has come up with the present review petition alleging that the above heads were not considered, which can only be branded as avariciousness and nothing more, because there is no material on record to award her compensation for ‘future prospects’, ‘disfigurement of face’ and ‘loss of marriage prospects’. I do not find any error in the impugned judgment warranting interference by this Court in 10 Review Petition No.625 of 2021 in MACA No.1619 of 2011 exercise of its review jurisdiction. The review petition is actually to be dismissed with cost, for wasting the precious judicial time. However, I refrain from doing the same perceiving the review petitioner to be innocent. The review petition is devoid of any merits and is hence dismissed. sd/- sks/8.12.2021 **C.S.DIAS, JUDGE**