Jess @ Jessmon v. United India Insurance Company Ltd

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. SATURDAY, THE 30[TH] DAY OF SEPTEMBER 2023 / 8TH ASWINA, 1945 MACA NO. 2839 OF 2018 ``` ``` AGAINST THE AWARD DATED 07.04.2018 IN OP(MV) 874/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR ``` ## **`APPELLANT/PETITIONER:`** ``` JESS @ JESSMON S/O JAMES, PUTHUPARAMBIL HOUSE, ERUMATHALA, ALUVA ``` ``` BY ADV A.N.SANTHOSH ``` ## **`RESPONDENT/2ND RESPONDENT:`** ``` UNITED INDIA INSURANCE COMPANY LTD BRANCH OFFICE, NO 3, ‘SHARNYA’, HOSPITAL ROAD, ERNAKULAM-682011 ``` ``` BY ADV SC -SRI.PMM.NAJEEB KHAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2839 OF 2018 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the petitioner in O.P.(M.V.) No.874/2013 on the files of the Motor Accident Claims Tribunal, Perumbavoor. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 06.12.2012. According to him, the accident occurred when the motorcycle on which the appellant was travelling was hit on the rear side of a parked car bearing Registration No.KL 40 H 60. It is contended by the appellant that the accident occurred due to the negligent riding of the motorcycle by the 1[st] respondent in the claim petition. The said motorcycle was insured with the 2[nd] respondent therein/respondent herein. According to him, he was working as a welder with a monthly income of Rs.9,000/-. He was aged 22 years. The claim petition was submitted in such circumstances seeking a total compensation of Rs.22,00,000/-. 3. The 1[st] respondent filed a written statement admitting the accident but denied the negligence on his part. It was also contended that the motorcycle was validly insured with the 2[nd] ``` MACA NO. 2839 OF 2018 ``` ``` 3 ``` respondent, and if at all there is any liability, it has to be indemnified by the 2[nd] respondent. 4. The 2[nd] respondent filed a written statement admitting insurance coverage over the motorcycle but disputed the liability on various grounds. The negligence and quantum of compensation were also disputed by them. 5. The evidence in this case consists of Exts. A1 to A9(a) series from the side of the appellant, and the disability certificate of the appellant was produced as Ext.C1. From the side of the 2[nd] respondent, Ext.B1 policy was also marked. After appreciating the materials placed on record, the Tribunal arrived at the conclusion that the accident occurred due to the negligent riding of the 1[st] respondent and being the insurer, the 2[nd] respondent was held liable to pay compensation. The quantum of compensation was fixed as Rs.13,48,669/- and the 2[nd] respondent Insurance Company was directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realisation with proportionate cost. This appeal is submitted in such circumstances ``` MACA NO. 2839 OF 2018 ``` ``` 4 ``` by the appellant being dissatisfied with the quantum of compensation. 6. Heard Sri.A.N.Santhosh, learned counsel appearing for the appellant and Sri.P.M.M. Najeeb Khan, learned counsel appearing for the respondent Insurance Company. 7. The learned counsel for the appellant raised various contentions highlighting the inadequacy of the compensation awarded by the Tribunal. He mainly contended that the monthly income taken by the Tribunal for assessing the compensation was on the lower side. It was pointed out that the appellant was a welder, which is discernible from the Police records, including the F.I.S., but the Tribunal did not properly consider the same, and the monthly income taken was only Rs.6,000/- which is on the lower side. 8. After considering the materials placed on record, I find some force in the contention put forward by the learned counsel for the appellant. While adopting the method of computation in the light of the principles laid down by **Ramachandrappa v. Manager,** ``` MACA NO. 2839 OF 2018 ``` ``` 5 ``` **Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] even in respect of an ordinary employee, the monthly income can be fixed as Rs.8,500/in respect of an accident occurred in the year 2012. Therefore, I am of the view that it would be reasonable to fix Rs.8,500/- as the monthly income in this case as well. 9. Another aspect to be considered is the percentage of disability. The learned counsel for the appellant contends that as per Ext.C1 certificate, the appellant had suffered 46% disability. He brought the attention of this Court to the nature of the injuries sustained to him, which are extracted in the award itself. It is also pointed out that it is discernible from the disability certificate that, consequent to the injury, the appellant impaired a long-term memory resulting in 10% neurological disability and 40% percent permanent visual disability due to left homo men our hemianopia. Therefore, it was pointed out by the learned counsel for the appellant that, thus, the functional disability of the appellant is ``` MACA NO. 2839 OF 2018 ``` ``` 6 ``` much higher than the percentage of disability certified by the Medical Board. For that reason also, enhancement is to be granted. 10. After considering the materials placed on record, I find some force in the contention put forward by the learned counsel for the appellant in this regard. It is a well settled position of law that what is relevant for considering the compensation for ‘loss of earning capacity’ is the ‘functional disability’ and to ascertain the same, the impact of the physical disability sustained by the victim to the employment in which he was engaged in has to be taken into account. In this case, it is evident from the records, including the contents of the Police reports, that the appellant was working as a welder at the relevant time. The nature of the disabilities, as referred to above, would certainly affect his employment, which would, in turn, affect his earning capacity in a substantial manner. Therefore, as rightly pointed out by the learned counsel for the appellant that a slightly higher percentage than certified in the medical certificate has to be taken as the ‘functional disability’ of the appellant for the purpose of calculating compensation for ‘loss ``` MACA NO. 2839 OF 2018 ``` ``` 7 ``` of earning capacity’. In the facts and circumstances of the case, I deem it appropriate to fix the same as 55%. 11. Another aspect pointed out by the learned counsel for the appellant relates to the future prospects to be added. It is pointed out that the appellant sustained serious injuries and consequential physical disablement at the young age of 22 years, and he has to live with that disabilities throughout his life. Considering the physical disability he suffered, the future prospects also have to be considered while computing the compensation for ‘loss of earning power’. After considering the serious nature of the injuries and the possible impact of the same on the employment of the appellant, who is aged only 22 years, I deem it appropriate to make an addition of 40% of the monthly income towards future prospects as well. 12. Thus, when reassessing the compensation of ‘permanent disability’ with the revised criteria, the amount would come to Rs.14,13,720/- and after deducting Rs.5,96,160/-, the amount already awarded by the Tribunal, the additional amount would come ``` MACA NO. 2839 OF 2018 ``` ``` 8 ``` to Rs.8,17,560/-. Consequent to the revision of monthly income, the appellant would be entitled to a further sum of Rs.25,000/- under the head of ‘loss of earnings’ as well and the said amount is awarded. Similarly, it is seen from the award that only an amount of Rs.300/- is awarded under the head of ‘extra nourishment’. The appellant had undergone 51 days of hospitalization at two different spells, and he continued the treatment for a considerable period. The Tribunal itself has taken the ‘loss of earnings’ for a period of ten months. In such circumstances, I am of the view that a further sum of Rs.10,000/- can be granted under the head of ‘extra nourishment’. The learned counsel further submitted that the amount awarded under the head of ‘loss of amenities’ is only Rs.60,000/-. In this regard, it is submitted that the petitioner is a person aged 22 years, and he has to live with the disabilities of serious nature. When considering the said aspects, a slightly higher amount ought to have been granted by the Tribunal, contends the learned counsel for the appellant. Even though the learned counsel for the respondent Insurance Company would oppose any ``` MACA NO. 2839 OF 2018 ``` ``` 9 ``` enhancement, I find some justification in the submission made by the learned counsel for the appellant in this regard. In the facts and circumstances of the case, I am of the view that a further sum of Rs.10,000/- can be granted under this head. Thus, the total compensation receivable by the appellant is fixed as Rs.8,62,560/(8,17,560 + 25,000 + 10,000 + 10,000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 07.04.2018 passed by the Motor Accident Claims Tribunal, Perumbavoor in O.P.(M.V) No.874/2013 is hereby modified by granting an additional compensation of Rs.8,62,560/- (Rupees eight lakhs sixty two thousand, five hundred and sixty only). The respondent Insurance Company is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and proportionate cost within a period of three months from the date of receipt of a copy of this judgment. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs