National Insurance Co. Ltd. v. Narayanan; National Insurance Co. Ltd. v. Umesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943** ## **MACA.No.2066 OF 2013** **AGAINST THE AWARD IN OPMV 452/2010 DATED 05-08-2013 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD** ## **APPELLANT:** **THE NATIONAL INSURANCE CO. LTD. KANNUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35** **BY ADV. SRI.GEORGE CHERIAN (SR.)** ## **RESPONDENT:** **NARAYANAN R/AT/ UDAYAGIRI HOUSE, NEAR CENTRAL SCHOOL, VIDYANAGAR POST, PIN. 671 123, MADHUR VILLAGE KASARAGOD TALUK.** **R1 BY ADV. SRI.JAWAHAR JOSE** **SRI.JAISON ANTONY FOR RESPONDENT** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2021, ALONG WITH MACA.2064/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` M.A.C.A. Nos. 2066 & 2064 of 2013 ``` ``` 2 ``` ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943 MACA.No.2064 OF 2013** **AGAINST THE AWARD IN OPMV 444/2010 DATED 05-08-2013 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD** ## **APPELLANT:** **THE NATIONAL INSURANCE CO. LTD. KANNUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35.** **BY ADV. SRI.GEORGE CHERIAN (SR.)** **RESPONDENT:** **UMESHAN S/O.ACHUTHAN, R/AT. SREE NILAYAM, CHALA ROAD, VIDYANAGAR POST, KASARAGOD VILLAGE, KASARAGOD TALUK, PIN 671123.** **R1 BY ADV. SRI.JAWAHAR JOSE** **SRI.JAISON ANTONY FOR RESPONDENT** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2021, ALONG WITH MACA.2066/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` M.A.C.A. Nos. 2066 & 2064 of 2013 ``` ``` 3 ``` ## **`P.V.KUNHIKRISHNAN, J.`** ``` --------------------------------------- M.A.C.A. Nos. 2066 & 2064 of 2013 ------------------------------------------ Dated this the 31[st] day of March 2021 ``` ## **`JUDGMENT`** ``` These two appeals are connected and therefore, I am disposing these two appeals by a common judgment. M.A.C.A No. 2064/2013 is filed by the 3[rd] respondent-insurance company in O.P.(M.V) No. 444/2010 on the file of the Motor Accidents Claims Tribunal, Kasaragod. M.A.C.A No. 2066/2013 is filed by the 3[rd] respondent in O.P.(M.V) No. 452/2010 on the file of the Motor Accidents Claims Tribunal, Kasaragod (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` `2. The short facts are like this: -` ``` The petitioner in O.P.(M.V) No. 444/2010 was the ``` ``` M.A.C.A. Nos. 2066 & 2064 of 2013 ``` ``` 4 ``` ``` rider of the motor cycle and the petitioner in O.P.(M.V) No. 452/2010 was a pillion rider of that vehicle. When they were travelling in a motor cycle on 28.04.2010, and when they reached the petrol pump at Vidyanagar, a car bearing Registration No. KL 14G 4847 driven by the 1[st] respondent rashly and negligently, came from the opposite side and knocked the petitioners down, due to which they suffered injuries. ``` ``` 3. To substantiate the case, Exhibits A1 to A9 were marked on the side of the petitioner. Exhibits X1 and X2 are the medical certificates issued from the District Medical Board, Kanhangad to the petitioners assessing their disability. Based on the evidence and documents, the petitioner in O.P.(M.V) No. 444/2010 was awarded a compensation as Rs.4,55,410/- with interest at the rate of 8% per annum. The petitioner in O.P.(M.V) No. 452/2010 was awarded an amount of Rs.3,13,600/- with interest at the rate of 8% per ``` ``` M.A.C.A. Nos. 2066 & 2064 of 2013 ``` ``` 5 ``` ``` annum. Aggrieved by the quantum of compensation in these two claim petitions, these appeals were filed by the 3[rd] respondent/insurance company. ``` `4. Heard the learned counsel for the 3[rd]` `respondent and the learned counsel for the petitioner.` ``` 5.The learned counsel for the 3[rd] respondent submitted that, Exts. X1 and X2 are the medical certificates issued by the District Medical Board. The learned counsel submitted that, the assessment by the medical board is not to the whole body. The learned counsel submitted that, the certificate clearly says that, the disability is permanent physical impairment of 55% in relation to the left lower limp. Similarly in O.P.(M.V) No. 452/2010 the medical certificate says that, there is permanent physical impairment of 40% in relation to the left lower limp. The learned counsel submitted that, the tribunal erred in taking 45% and 40% respectively as disability to the petitioner in O.P. ``` ``` M.A.C.A. Nos. 2066 & 2064 of 2013 ``` ``` 6 ``` ``` (M.V) Nos. 444/2010 and 452/2010. The learned counsel submitted that, the tribunal erred in relying Exts. X1 and X2 for assessing the disability. The learned counsel for the petitioner supported the findings of the tribunal. ``` ``` 6.I perused Exts. X1 and X2. It is true that, in the medical certificate it is stated that, the permanent physical impairment is in relation to the left lower limp. But, it is clear from the impugned award that, the tribunal has not blindly accepted Exts. X1 and X2. As far as Ext. X1 is concerned, which is related to O.P. (M.V) No. 444/2010, even though the medical board found that, there is 55% disability, the court accepted only 45%. Similarly, as far as Ext. X2 is concerned, which is related to O.P.(M.V) No. 452/2020, the tribunal accepted only 40% as disability for the petitioner in that case. Therefore, according to me, the findings of the tribunal, as far as the disability of the ``` ``` M.A.C.A. Nos. 2066 & 2064 of 2013 ``` ``` 7 ``` ## `petitioners are concerned, there is nothing to interfere.` 7. The Apex Court in _**Pappu Deo Yadav v. Naresh Kumar and others**_ [AIR 2020 SC 4424] after considering a plethora of decisions on a point 'permanent disability' has held that the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company**_ [2014 (2) SCC 735] and _**Raj Kumar v. Ajay kumar and anr.**_ [2011 (1) KLT 620 (SC)] and held that the court should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities supplied, both in the assessment of extent of disabilities and compensation under various heads. ``` M.A.C.A. Nos. 2066 & 2064 of 2013 ``` ``` 8 ``` 8. Moreover, the petitioner in `O.P.(M.V)` No. 444/2010 is a painter and the petitioner in `O.P.(M.V)` No. 452 is a tailor. According to them, they were getting Rs.6,000/- each as monthly income. The tribunal has taken only an amount of Rs.4,000/-. `In the light of the decision of the Apex Court in` _**Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236],**_ the Apex Court fixed an amount of Rs.4500/- as monthly income to a coolie in the year 2004. The accident in this case happened in 2010. Since, there is no appeal from the claimants. I am not interfering to that part of the award. Considering the entire facts and circumstances of the case, I think, there is nothing to interfere with the impugned awards. Therefore, these two appeals are dismissed. Sd/- ## **P.V.KUNHIKRISHNAN JUDGE** LU