Jiju Francis v. National Insurance Company Ltd.

M.A.C.A.No.1815/2017 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943_ ## _MACA.No.1815 OF 2017(B)_ _AGAINST THE AWARD IN OPMV 1122/2011 DATED 23-03-2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA_ ## _APPELLANT/S:_ _JIJU FRANCIS, S/O.FRANCIS, OLLOOKARAN HOUSE, SOUTH THORAVU DESOM & VILLAGE, PUDUCAD P.O., MUKUNDAPURAM TALUK,_ _BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH_ ## _RESPONDENT/S:_ _THE NATIONAL INSURANCE COMPANY LTD. KOCHI-682 035._ ## _R1 BY ADV. SRI.P.JACOB MATHEW_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.1815/2017 2 ## **ZIYAD RAHMAN A.A, J.** -------------------------------------------------------M.A.C.A.No.1815 of 2017 ---------------------------------------------Dated this the 23[rd] day of March, 2021 ## **ORDER** This is an appeal filed by the petitioner seeking enhancement of compensation. The claim petition namely O.P.(MV).No.1122 of 2011 was filed by the petitioner before the Motor Accidents Claims Tribunal, Irinjalakkuda seeking compensation for the injuries sustained to him in a motor accident occurred on 11.07.2011. According to the claimant, the accident occurred, when the motor cycle on which the petitioner was pillion riding, skidded off and he was thrown off on the road. On account of the accident he sustained very serious injuries leading to permanent disablement. According to the petitioner he was working as a welder at the relevant time with a monthly income of Rs.10,000/-. The total amount of compensation claimed by him was Rs.24,21,000/-, but limited to Rs.15,00,000/-. 2. The Insurance Company alone contested the case. They filed written statement admitting the coverage of policy, but disputed the liability on various grounds. The quantum of M.A.C.A.No.1815/2017 3 compensation was also seriously disputed by them. Evidence in this case consists of Ext.A1 to A10 from the side of appellant. The disability certificate issued by the Medical Board was marked as Ext.X1. No evidence was adduced from the side of the respondents. After the trial, the Tribunal passed an award allowing a total compensation of Rs.11,17,300/- and the 3[rd] respondent Insurance Company was directed to deposit the said amount along with interest at the rate of 9% per annum. Being dissatisfied with the quantum of compensation this appeal is filed by the appellant/petitioner. 3. Heard the learned counsel for the appellant and the learned counsel for the respondent Insurance Company. One of the main contentions urged by the learned counsel for the appellant is that the monthly income taken by the Tribunal is only Rs.5,000/-, which is on lower side. According to him, he has produced Ext.A10 employment certificate indicating that the appellant was working as a welder at the time of accident. It was also pointed out by him that in Ext.A1 FIR, the avocation of the appellant is specifically mentioned as welder. Therefore, the monthly income taken by the Tribunal requires to be reviewed. In the light of the principles laid down by the Hon’ble Supreme Court M.A.C.A.No.1815/2017 4 in **Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735]** and **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd** **[(2011) 13 SCC 236],** the monthly income taken by the Tribunal is on lower side. Going by the principles laid down in the said judgment, in respect of a person without no known income, the notional income can be fixed as Rs.4,500/- for the year 2004 and Rs.500/- each shall be added in respect of the subsequent years. While computing the monthly income in this case, based on the said principles, the monthly income can be fixed at Rs.8,000/-. However, in this case, there is some evidence to show that the appellant was a welder at the relevant time. The above fact is evident from Ext.A10 employment certificate. It is true that Ext.A10 is not proved by examining the person who has issued the same. However, the fact that the avocation of the appellant finds a mention in the Ext.A1 FIR is a factor which can be taken note of while considering this issue. Therefore, since there is already some evidence with regard to the avocation of the appellant namely, welder, the monthly income can be fixed on higher rate than usually taken in respect of persons without known sources of income. In the facts and circumstances of the case, this Court is M.A.C.A.No.1815/2017 5 of the view that an amount of Rs.10,000/- per month shall be ideal for the purpose of computing the compensation. 4. The next aspect highlighted by the learned counsel for the appellant is that, on account of the injuries sustained, he has sustained functional disability at the rate of 100%. It was pointed out by him that even though the whole body disability certified in Ext.A7 was 52%, the Tribunal, taking note of the physical as well as mental disability caused to the appellant, had taken the functional disability as 70%. According to him, even 70% itself is on lower side, in view of the fact that, the nature of the avocation of the appellant involves physical activities. On account of the injuries, he is completely deprived of continuing the said avocation and therefore, 100% disability has to be taken for the purpose of computing the compensation. While considering the above issue, the observation made by the Tribunal is relevant. At paragraph No.8 of the award, it is observed by the Tribunal, by relying upon the documents that, the appellant had suffered impairment of personal care (bathing, brushing, shaving etc.). Therefore, it is evident that, apart from pursuing his avocation as a welder, he is even prevented from pursuing his daily routine of life. The learned counsel also brought the attention of this Court to the judgment M.A.C.A.No.1815/2017 6 rendered by this Court in M.A.C.A.No.1787 of 2015. In the said judgment, after relying upon a large number of cases rendered by the Hon’ble Supreme Court, this Court had taken the functional disability of a person employed as a welder, as 100%, even though whole body disability certified by the Medical Board therein was 75%. 5. On going through the observations made in the said judgment, it can be seen that while passing the judgment, this Court had taken note of the judgments rendered in **R.D.Hattangtadi v. Pest Control (India) Pvt.Ltd. and others [(1995) 1 SCC 551], Govind Yadav v. New India Insurance Company Ltd. [(2011) 1 SCC 683], G.Ravindranath v. E.Srinivas and another [2013 ACJ 2161], N.Manjegowda v. Manager United India Insurance Co.Ltd. [2014 ACJ 617], V.Mekala v. M.Malathi and another [2014 ACJ 1441], Minor Basid v. Sanu [2018 (2) KLT 453], Parminder sing v. New India Assurance Co.Ltd. [2019 ACJ 2401]** and **Kajal v. Jagdish Chand [2020 (1) KLT 743 (SC)].** 6. However, after examining the factual position in the said judgment, this Court is of the view that there is some distinction. In the said case, the petitioner was completely M.A.C.A.No.1815/2017 7 paralyzed and the whole body disability assessed was 75%. In this case, even going by the materials available, it is to be noted that the appellant was not paralyzed and the percentage of disability is 52%. Therefore, this Court is of the view that, it is not necessary to take the functional disability as 100%. However, in the facts and circumstances of the case, certainly functional disability has to be taken at slightly higher percentage than found by the Tribunal. After analyzing the entire materials on record, this Court is of the view that, taking the percentage of functional disability as 85% would be reasonable. 7. It was also pointed out by the learned counsel for the appellant that, the Tribunal failed to make any addition towards future prospects, even though the percentage of disability is high. Going by the principles laid down by the Hon’ble Supreme Court in this regard, appellant is entitled for an addition of 40% of the monthly income towards future prospects, in view of the fact that he was aged 25 years only at the time of accident. Therefore, an addition of 40% in this regard has to be made. 8. While re-working the compensation under the head of permanent disability with the above revised criteria, the amount payable under this head will be Rs.25,70,400/- [14000 x 12 x 18 x M.A.C.A.No.1815/2017 8 85%]. The Tribunal has already awarded an amount of Rs.7,56,000/- under this head. After deducting the said amount, the additional amount receivable by the appellant shall be Rs.18,14,400/-. 9. The other point raised by the learned counsel for the appellant is regarding the amount receivable under the head of loss of earning. By virtue of the revision of the monthly income, the appellant will be entitled for a further sum of Rs.50,000/- for loss of earnings. 10. It is further pointed out that the amounts awarded under the heads of pain and sufferings (Rs.90,000/-), loss of amenities (Rs.30,000/-) are also on lower side. It is further contended that, even though an amount of Rs.2,00,000/- was claimed under the head of loss of marriage prospects, no amount is awarded by the Tribunal. Similarly, the learned counsel for the appellant also sought for enhancement under the head of attendant expenses, which was Rs.75,000/-, granted by the Tribunal. While considering the amount awarded under the head of loss of amenities and loss of marriage prospects, the fact that the appellant sustained very serious injuries and disability at the age of 25 is a relevant aspect and hence, some revision is to be M.A.C.A.No.1815/2017 9 made. On an analysis of the entire materials, this Court is of the view that a total sum of Rs.2,00,000/- will be ideal under the heads of loss of amenities and loss of marriage prospects taken together. The amount already awarded by the Tribunal under this head is Rs.30,000/- and therefore, the additional amount receivable by the appellant in this regard will be Rs.1,70,000/- (2,00,000 – 30,000). Even though the learned counsel for the appellant urged for revision of attendant expenses, which was Rs.75,000/-. Taking into consideration the amount additionally granted by this Court in other heads, no interference is warranted. Thus the total additional amount of compensation receivable by the appellant shall be Rs.20,34,400/- (18,14,400 + 50,000 + 1,70,000). The respondent Insurance Company shall deposit the said amount along with interest at the rate of 8% and proportionate costs within a period of three months from the date of receipt of a copy of this judgment M.A.C.A. disposed of as above. **Sd/ZIYAD RAHMAN A.A.(JUDGE)** DG