MACA Nos. 370 of 2015 and 707 of 2017, National Insurance Company Ltd. v. Baiju G.S. and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945** ## **MACA NO. 370 OF 2015** **AGAINST THE ORDER/JUDGMENT OPMV 227/2004 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, THIRUVANANTHAPURAM** ## **APPELLANT/3rd RESPONDENT IN OP MV NO 227/2004:** NATIONAL INSURANCE COMPANY LTD. PB NO.434, ST.JOSEPH'S PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADV SEBASTIAN VARGHESE(K/141/2000) ## **RESPONDENT/CLAIMANT AND RESPONDENTS 1&2 IN OP MV 227/2004:** 1 BAIJU S/O. LATE GOPINATHAN NAIR, BAIJU BHAVAN, NATTUVANKAVU, NEDUMANGADU, THIRUVANANTHAPURAM-695 542. 2 S.SREEKUMAR S/O. R.SUKUMARAN NAIR, AJIVILASAM, PULLIKONAM, PANACODE P.O., THIRUVANANTHAPURAM-695 564. 3 PRAMOD KUMAR C. AMPADI IRUMPA, ARUVIKKARA P.O., THIRUVANANTHAPURAM-695 564. BY ADVS. SUMESH CHAKKADATH SUBRAMANIAN C S ARUN BABU(K/1240/2004)(deleted)(Respondent No.3 is deleted from the party array as per order dtd.05.10.2015 in IA No. 3344/15 in M.A C.A 370/15) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2023, ALONG WITH MACA.707/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A Nos. 370 of 2015 and 707 of 2017 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 MACA NO. 707 OF 2017 AGAINST THE ORDER/JUDGMENT OPMV 227/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER:** BAIJU G.S. AGED 40 YEARS AGED 40 YEARS, S/O.LATE GOPINATHAN NAIR,BAIJU BHAVAN, NATTUVANKAVU, NEDUMANGAD,THIRUVANANTHAPURAM, PIN 695 541. BY ADVS. SUMESH CHAKKADATH SUBRAMANIAN C S ARUN BABU(K/1240/2004) ## **RESPONDENT/3RD RESPONDENT IN OP MV:** THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD.,P.B.NO.434, ST.JOSEPH PRESS BUILDING, VAZHUTHACAUD,THIRUVANANTHAPURAM-14. BY ADVS. SRI.LAL GEORGE SEBASTIAN VARGHESE(K/141/2000) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2023, ALONG WITH MACA.370/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A Nos. 370 of 2015 and 707 of 2017 3 ## **JUDGMENT** These appeals are arising from O.P.(M.V) No. 227/2004 on the files of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The said claim petition was submitted by the appellant in MACA 707/2017 seeking compensation for the injuries sustained to him in a motor accident that occurred on 13.08.2003. The accident occurred when the motorcycle he was riding was hit by another motorcycle bearing registration No.KL-01-P-6035 ridden by the 1st respondent in the claim petition. The said vehicle was insured with the 3[rd] respondent in the claim petition, the appellant in MACA 370/2015. (For convenience, the parties in these appeals are hereinafter referred to as per their respective ranks in the claim petition) 2. According to the petitioner, he was working as a System Supervisor in Mathrubhumi Daily, with a monthly income of Rs.18,000/-. It was contended that, due to the injuries, he sustained permanent disablement, which was certified by the Doctor as 90%. The claim petition was submitted in such circumstances seeking compensation. M.A.C.A Nos. 370 of 2015 and 707 of 2017 **==> picture [7 x 9] intentionally omitted <==** 3. The 3[rd] respondent/insurer alone contested the matter by filing a written statement wherein they admitted the coverage of the policy. However, they disputed the liability on various grounds. They also denied the negligence and disputed the quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A53 from the side of the petitioner and no evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the rider of the motorcycle, which collided with the petitioner's motorcycle. Being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.19,55,681/- and the said amount was directed to be deposited along with interest at the rate of 9% per annum with proportionate cost. MACA 707/2017 was filed by the petitioner seeking enhancement of compensation, whereas MACA 370/2015 was filed challenging the said award. M.A.C.A Nos. 370 of 2015 and 707 of 2017 5 5. Heard, Sri. C.S Sumesh, the learned counsel appearing for the petitioner and Sri.Sebastian Varhese, the learned counsel appearing for the 3[rd] respondent/insurance company. 6. The main dispute in this case relates to the quantum of compensation awarded by the Tribunal under various heads, particularly under the head of loss of earning capacity owing to physical disability. Several documents were produced by the petitioner to indicate the pathetic physical condition of the petitioner. The Tribunal, by placing reliance upon the Ext.A14 certificate, accepted 60% physical disability and calculated the compensation. During the pendency of this appeal, the petitioner was referred to the Medical Board for assessment of the physical disability as per order dated 10.11.2017. Based on the same, a Medical Board constituted by the Deputy Superintendent, Medical College Hospital, Thiruvananthapuram, consisting of seven doctors, assessed the physical condition of the petitioner and the percentage of whole body disability was certified as 89%. While arriving at the said figure, the medical board considered the various types of the physical disabilities, which were described in the manner as follows: M.A.C.A Nos. 370 of 2015 and 707 of 2017 **==> picture [7 x 9] intentionally omitted <==** _“1.Bilateral severe to profound mixed hearing loss - 82% 2.Disability due to tooth loss - 9%_ _3.Visual Disability - 75%”_ From the contents of the disability certificate dated 20.02.2018, which was forwarded to this Court by the Medical Board, it is evident that the petitioner had suffered profound mixed hearing loss and visual disability. The other documents produced before this Court would indicate the serious nature of injuries sustained by him, which include memory loss as well. Thus, it is evident that he suffered very serious injuries, and his physical disability would practically incapacitate him from pursuing the avocation that he was carrying on at the time of the accident, which was System Supervisor. Therefore, this is a case in which the functional disability should have been taken at 100%. The nature of injuries sustained as is discernible from the medical records and the difficulties arising therefrom would undoubtedly justify the taking of functional disability as 100% for the purpose of assessing the compensation. This is particularly because the petitioner sustained the said injuries at the young age of 28, and it destroyed his entire career. Therefore, as against the physical disability of 60% M.A.C.A Nos. 370 of 2015 and 707 of 2017 **==> picture [7 x 9] intentionally omitted <==** taken by the Tribunal, the compensation has to be awarded by taking the functional disability as 100%. 7. Another aspect to be taken into consideration is the future prospects. The Tribunal has not made any addition towards future prospects. Since the disability sustained by the appellant is very high, undoubtedly future prospects ought to be taken into consideration, mainly because he was only 28 years old at the time of the accident. As per the principles laid down in **National** **Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], in respect of a person employed with regular monthly income, the addition to be made toward future prospects is 50%. Thus, while reassessing the compensation with the above-revised criteria, the amount of compensation would come to Rs. 26,13,852/- [(8,542 + 50%) x 12 x 17)]. The amount already awarded by the Tribunal under this head is Rs 10,45,541/- and therefore, an additional amount would come to Rs.15,68,311/-. 8. The learned counsel for the petitioner contends that the amount awarded towards pain and suffering is Rs.25,000/- which is grossly inadequate. However, the learned counsel for the 3[rd] respondent/insurance company would point out that an amount of M.A.C.A Nos. 370 of 2015 and 707 of 2017 8 Rs.3,48,514/- is awarded towards the loss of amenities, which is on the higher side. It is seen from the records that the Tribunal has taken 1/3rd of the amount awarded under the head of permanent disability for the purpose of assessing the compensation for loss of amenities. Considering the fact that this Court has already revised the compensation for continuing permanent disability by taking the physical disability as 100%, such a huge amount need not be granted under the head of loss of amenities. However, I am not interfering with the compensation awarded under the said head, considering the fact that the Tribunal has awarded only an amount of Rs.25,000/- under the head of pain and suffering, which is too low. Considering the nature of the injuries and the consequential disability sustained by the petitioner, this is a case in which a much higher amount ought to have been granted under the head of pain and suffering. Therefore, the excess amount awarded under the head of loss of amenities can be set off against the lesser amount awarded under the head of pain and suffering. Hence, I am not interfering with either of the heads. M.A.C.A Nos. 370 of 2015 and 707 of 2017 9 9. The learned counsel for the insurance company would further point out that, in addition to the compensation for disability, a further sum of Rs.50,000/- has been awarded toward loss of earning power, which was not at all warranted. The said contention has to be accepted, particularly because I have already fixed the compensation for disability by taking the percentage of disability as 100%. Therefore, the said amount has to be deducted. The amounts awarded under the other heads are reasonable. Thus, the total additional compensation receivable by the appellant is fixed as Rs.15,18,311/-(1568311–50,000). In the light of the aforesaid observations and findings, both these appeals are disposed of by modifying the award dated 11.03.2014 passed by the Motor Accidents Claims Tribunal, Thiruvananthapuram, in O.P(M.V) No. 227/2004, by granting an additional compensation of Rs.15,18,311/ and the said amount shall be deposited by the 3[rd] respondent/insurance company with interest at the rate of 8% per annum from the date of petition till realisation and proportionate cost within three months from the date of receipt of a copy of this judgment. However, it is clarified that, since the appeal submitted by the claimant, namely M.A.C.A M.A.C.A Nos. 370 of 2015 and 707 of 2017 **==> picture [13 x 9] intentionally omitted <==** No. 707/2017 was with a petition to condone the delay of 961 days, and the petitioner shall not be entitled to claim interest for the additional amount for the said period. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk