MACA No. 2176 of 2014 & Co. 157 of 2021 (National Insurance Company Ltd. v. Prathapan, Suresh & Alex)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944** **MACA NO. 2176 OF 2014 AGAINST THE ORDER/JUDGMENT OPMV 91/2008 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH** ## **PARAVUR** ## **APPELLANT/RESPONDENT NO.3:** NATIONAL INSURANCE COMPANY LTD. BRANCH OFFICE MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, N.PARAVUR. REP. BY ITS MANAGER. BY ADVS. SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA ## **RESPONDENTS/CLAIMANT AND RESPONDENTS NO:1 AND 2:** 1 PRATHAPAN S/O.SANKAARANKUTTY, MUTHIRAPPARAMBU HOUSE, KOTTAPPURAM KARA, ALANGAD VILLAGE. 2 SURESH S/O.KESAVAN, VALUPPARAMBIL HOUSE, PANIGOTTUKARA, THEKKUMKARA VILLAGE, THRISSUR DISTRICT. 3 ALEX S/O.MATHEW, THUNDIPARAMBIL HOUSE, ANAPUZHA, KODUNGALLOOR. BY ADV SRI.A.N.SANTHOSH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2023, ALONG WITH CO NO.157 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.2176 of 2014 & Co. 157 of 2021 : 2 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 CO NO. 157 OF 2021** **AGAINST THE ORDER/JUDGMENT MACA 2176/2014 OF HIGH COURT OF** ## **KERALA** ## **CROSS OBJECTOR/1ST RESPONDENT:** PRATHAPAN, AGED 38 YEARS, S/O.SANKARAN, MUTHIRAPARAMBU HOUSE, KOTTAPPURAM KARA, ALANGAD VILLAGE. BY ADV A.N.SANTHOSH ## **RESPONDENT/APPELLANT:** NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, N.PARAVUR - 683 513. REPRESENTED BY ITS MANAGER. BY ADV LAL K.JOSEPH THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2023, ALONG WITH MACA.2176/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.2176 of 2014 & Co. 157 of 2021 : 3 : ## **DEVAN RAMACHANDRAN, J.** **========================= M.A.C.A.No. 2176 of 2014 & Co.157 of 2021 ========================== Dated this the 7[th] day of February, 2023** ## **JUDGMENT** Among the afore two cases, MACA No.2176 of 2014 has been filed by the National Insurance Company Ltd.; while C.O.No.157 of 2021 has been filed by the claimant in OP(MV) No. 91 of 2008 before the Motor Accidents Claims Tribunal, North Paravur (the 'Tribunal' for short). 2. The Insurance Company impugns the Award because it has granted compensation to the claimant under the head “loss of earning power”, even when compensation for “permanent disability” and “loss of income” have been granted; while, the claimant impugns it on the assertion that the amounts granted under the heads “loss of income”; “pain and suffering”; “permanent disability” and “future medical expenses” are inadequate. 3. I have heard Sri.Lal K.Joseph – learned counsel appearing for the appellant; Sri.A.N.Santhosh – learned counsel appearing for the cross objector; and Sri.M.A.Augustine – learned counsel appearing for respondent No.3 – owner of the offending vehicle. 4. To state the facts compendiously, the cross objector was M.A.C.A.No.2176 of 2014 & Co. 157 of 2021 : 4 : riding pillion on a motor cycle, when it was hit by the offending bus owned by the 3[rd] respondent; he and the rider thus sustaining injuries. They approached the Tribunal by separate Original Petitions, his being numbered as OP(MV)No.91/2008. He was 24 years at the time of accident, working as a Carpentor, claiming a monthly income of Rs.5,000/-. 5. After trial, the Tribunal awarded a compensation of Rs.6,59,900/- against the claim of Rs.21,35,000/-, limited to Rs.10,00,000/-, and the cross objector impugns this; while the Insurance Company, as seen above, limits their contention to the extent that the Tribunal has erroneously awarded “loss of earning” additionally, along with compensation, under various other heads. 6. Sri.A.N.Santhosh – learned counsel appearing for the cross objector, brought my attention to Ext.A9 – Wound Certificate, which record the following injuries: _“tenderness and swelling left clavicle and right maxilla, fracture left clavicle and right maxilla (zygomatic maxillary complex), multiple abrasions over face and extremities”_ (sic). He argued that even though Ext.X2 – Disability Certificate, certifies his client as having a disability of only 21%, the fact remains that, functionally, he is unable to go back to his avocation of carpentry. He added that his client is suffering from epilepsy, loss of memory, disfiguration of face, and it is difficult for him to sit M.A.C.A.No.2176 of 2014 & Co. 157 of 2021 : 5 : and climb; and that he had required dental treatment. 7. Sri.A.N.Santhosh, thereafter, argued that the notional income adopted for his client by the Tribunal – namely Rs.5,000/– is too low, because, going by the judgment of the Hon'ble Supreme Court in **Anilkumar and others v. M.K.Aiyappa and Another [(2013) 10 SCC 705],** it has been declared that even in the case where a skilled worker admits to a lower income, the Court is expected to take the just figure modulated by the attendant circumstances. He argued that, therefore, even though his client averred before the Tribunal that he was only earning Rs.5,000/-, as per **Anil Kumar (supra),** it ought to have taken at least Rs.6,000/-. He then submitted that since his client is now suffering from great amount of disability, which is a continuing one – thus being incapacitated from even making a proper livelihood – at least 40% future prospects ought to have been added to his income, which has now been denied by the Tribunal. He relied upon various judgments of the Hon'ble Supreme Court, including **Raj Kumar v. Ajay Kumar and Another [(2011) 1 SCC 343]** in substantiation. He concluded his submissions, saying that loss of income also ought to have been, therefore, proportionately increased; while the compensation awarded for “pain and suffering” of a mere Rs.1,50,000/-, is extremely low and M.A.C.A.No.2176 of 2014 & Co. 157 of 2021 : 6 : inadequate. 8. In response, Sri.Lal K.Joseph – learned counsel appearing for the Insurance Company, submitted that assessment of the compensation by the Tribunal is without error, except that it has granted an amount of Rs.1,00,000/- under the head “loss of earning power”, even when compensation for “permanent disability” and “loss of income” for six months had been granted. He, therefore, prayed that MACA No.2176/2014 be allowed and C.O.No.157/2021 be dismissed. 9. I have evaluated the afore submissions on the touchstone of various materials and evidence on record - copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that they can be acted upon by this Court without dispute. 10. As I have already said above, the only ground taken by the appellant Insurance Company in MACA No.2176/2014 is to the extent to which the Tribunal has granted Rs.1,00,000/- towards “loss of earning power”. In fact, I do not need to delve into this issue in detail because, it is virtually conceded by Sri.A.N.Santhosh that such an amount could not have been granted, going by the fact that “permanent disability”, “pain and suffering”, and “loss of income” had been reckoned and compensation granted against the M.A.C.A.No.2176 of 2014 & Co. 157 of 2021 : 7 : same. To such an extent, I find favour with the Insurance Company. 11. Coming to the compensation fixed by the Tribunal, I must say that I find favour with the submissions of Sri.A.N.Santhosh, because, the medical records show that, on account of the injuries sustained by the appellant, it is difficult for him to sit and climb steps. He has also recurrence of epilepsy; along with loss of memory and disfiguration of his face. He also had required dental treatment. The injuries disclosed by the evidence on record clearly cannot be reckoned to be trivial, but are ones which surely leaves indelible stress on the cross objector, particularly when it is without doubt that he is suffering from bouts of epilepsy, as has also been recorded by the Tribunal. I am, therefore, of the firm view that the amount of Rs.1,50,000/- granted by the Tribunal under the head “pain and sufferings” is inadequate, and propose to enhance it to Rs.2,50,000/-. 12. As far as the income of the petitioner is concerned, I am afraid that I cannot find favour with A.N.Santhosh, even relying on **Anil Kumar (supra)** , that it ought to have been enhanced to Rs.6,000/-. This is because, it is not a case where the victim of the accident did not survive, as in the case of **Anil Kumar (supra),** and where the income of the deceased could have been reckoned only through other evidence. It is in such a scenario that the M.A.C.A.No.2176 of 2014 & Co. 157 of 2021 : 8 : Hon'ble Supreme Court said that, even when evidence was not fully forthcoming with respect to the income of the deceased, the Court was bound to take a figure that was just and equitable. However, in the case at hand, the victim of the accident survived, and the cross objector then expressly admit that he was only earning Rs.5,000/-. Obviously, **Anil Kumar (supra),** cannot apply to the facts of this case; and I, therefore, cannot revise the notional income adopted by the Tribunal, which, in any case, is accurate. 13. That said, I find favour with the submissions of Sri.A.N.Santhosh that future prospects ought to have been added to the income of the cross objector, particularly because he was a carpenter and whose capacity to work in future would be severely impaired on account of the bouts of epilepsy and such other complications suffered by him. Since Ext.X2 – disability certificate establishes that he suffers from a whole body disability of 21%, I am certain that this Court will be justified in holding that his functional disability would be more than that, and that I propose a conservative estimate of 25%. This being so, I am certain that this percentile should be awarded to the cross objector as future prospects, since his earning capacity indubitably has been reduced from what he could have had he continued to work as a Carpenter for 15 years, which is the multiplier adoptable. ## M.A.C.A.No.2176 of 2014 & Co. 157 of 2021 : 9 : In the afore circumstances; - (a) MACA No. 2176/2014 is allowed; and the compensation awarded to the 1[st] respondent under the head “loss of earning power” is deleted. - (b) C.O.No. 157/2021 is allowed: - (i) Enhancing the compensation for “permanent disability” to Rs.2,83,500/-, from Rs.2,26,000/- as awarded by the Tribunal, taking his notional income to be Rs.5,000/- and adding 25% to it as future prospects. (ii) Enhancing the amounts under “pain and suffering” to Rs.2,50,000/-, instead of Rs.1,50,000/-. - (iii) The compensation awarded by the Tribunal in all other heads are confirmed. - (iv) The total compensation would thus stand revised to Rs.7,16,600/-, instead of Rs.6,59,900/-. The cross objector will be entitled to recover the total compensation amount from the Insurance Company, along with interest at the rate decided by the Tribunal, from the date of claim till realisation. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal before it. M.A.C.A.No.2176 of 2014 & Co. 157 of 2021 : 10 : Needless to say, while computing the interest eligible to the cross objector on the enhanced amounts, the period of 2024 days being the delay caused by him in filing the cross objection would be deducted. **Sd/DEVAN RAMACHANDRAN JUDGE** anm