National Insurance Co. Ltd. v. V. Noushad and The New India Assurance Co. Ltd. (MACA No. 869 of 2011; Cross-Objection CO No. 158 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY ,THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940** ## **MACA.No. 869 of 2011** **AGAINST THE AWARD IN OPMV 13/2004 of M.A.C.T., THALASSERY DATED 24-03-2011** ## **APPELLANT/S:** **NATIONAL INSURANCE CO.LTD., KANNUR, REP.BY THE MANAGER, KOCHI REGIONAL OFFICE,, M.G ROAD, ERNAKULAM, COCHIN - 35.** **BY ADV. SRI.E.M.JOSEPH** ## **RESPONDENT/S:** **1 V.NOUSHAD, AGED 24 YEARS S/O.K.V.ABDURAHIMAN, VITHINDAKATH, P.O CHIRAKKAL, KANNUR. 2 THE NEW INDIA ASSURANCE CO.LTD, DIVISIONAL OFFICE, KANNUR.** **BY ADVS. SRI.M.SURESH KUMAR SRI.M.JACOB MURICKAN SRI.P.U.SHAILAJAN** ## **OTHER PRESENT:** ## **SRI P U SHAILAJAN, SRI E M JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2019, ALONG WITH CO.158/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.869/2011 and Cross-objection 158/2018 ::2:: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY ,THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940** ## **CO.No. 158 of 2018 IN MACA. 869/2011** **AGAINST THE ORDER/JUDGMENT IN MACA 869/2011 of HIGHCOURT** **PETITIONER/S:** **V. NOUSHAD AGED 32 YEARS S/O.ABDURAHIMAN, VITHINDAKATH HOUSE P.O. CHIRAKKAL, KANNUR DISTRICT BY ADV. SRI.P.U.SHAILAJAN** ## **RESPONDENT/S:** **1 NATIONAL INSURANCE CO. LTD. REPRESENTED BY THE MANAGER KOHI REGIONAL OFFICE, M.G. ROAD ERNAKULAM 682 035 2 THE NEW INDIA ASSURANCE CO. LTD. DIVISIONAL OFFICE, KANNUR 670 001 BY ADVS. SRI.E.M.JOSEPH SRI.M.JACOB MURICKAN** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2019, ALONG WITH MACA.869/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.869/2011 and Cross-objection 158/2018 ::3:: ## **J U D G M E N T** **[ MACA 869/2011 ,CO.158/2018 ]** **The appeal is by the insurance company and the cross objection by the injured-claimant. More than one claimants were before the Tribunal, who were traveling in a bus when it collided with another bus. Both the claimants suffered injuries and had their limbs amputated. One of the persons; ie., Noushad the appellant herein, had his limb amputated from the shoulder. The other person had carried out an amputation little above the elbow.** **2. MACA No.869/2011 is filed by the National Insurance Company, who was the insurer of one of the buses involved in the accident and a Cross Objection is filed by Noushad. However, an appeal filed by the New India Assurance Company, the 6[th] respondent before the Tribunal which insured** MACA No.869/2011 and Cross-objection 158/2018 ::4:: **the other bus was dismissed by a Division Bench of this Court at the admission stage itself. The two Insurance Companies had insured the two vehicles involved in the accident. Since there was an apportionment of liability at the rate of 50% the liability was on both the companies.** **3. The learned Counsel for the appellant Insurance Company would contend that the other appeal is dismissed at the admission stage itself and this appellant-Insurance Company could not argue on the aspects raised herein. It is contended that the monthly income adopted for an 18 year old at Rs.4500/- in the year 2003 is very excessive. It is also contended that 75% disability cannot be assessed insofar as only one limb having been amputated. There cannot be found 75% whole body disability; is the contention. The Medical Board had fixed the whole body disability only at 50% is the further contention of the Insurance Company.** MACA No.869/2011 and Cross-objection 158/2018 ::5:: **4. Though the appellant Insurance Company in MACA No.869/2011 was not heard in the earlier appeal; the findings therein bind this Court. The Division Bench while dismissing MACA 1560/2011 on 17.10.2011 found authoritatively on facts with respect to the disability percentage and the monthly income. With respect to the disability it was found that I Schedule to the Workmen Compensation Act, indicates that a percentage of reduction of earning capacity at the rate of 90% in the event of amputation of right arm through shoulder joint. The disability assessed by the Tribunal at 75%, hence was found to be perfectly in order. The income found was also accepted by the Division Bench. It is to be noticed that in the year 2004 a coolie was found to have Rs.4500/income per month, by the Hon'ble Supreme Court in** _**Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) AIR SC**_ MACA No.869/2011 and Cross-objection 158/2018 ::6:: _**2951]**_ **. Considering all these, this Court is of the opinion that, on the binding precedent and on an independent evaluation the appeal of the Insurance Company has to be rejected.** **5. The next question is on the enhancement of compensation as claimed in Cross Objection. The learned Counsel for the Insurance company points out that the same principle adopted in the case of the other insurance company has to be adopted in the case of the injured also. It is also emphasised that the cross objection was filed with a delay of more than 900 days.** **6. As to the objection of the Insurance Company, the enhancement claimed is on the multiplier applied and also on the further medical expenses incurred for having an artificial limb. The said contentions were not at all dealt with by the Division Bench in the other appeal. As for the delay occasioned if at all an enhancement is** ::7:: MACA No.869/2011 and Cross-objection 158/2018 **granted, the Cross Objector would be dis-entitled from any interest for the said period. The objection raised by the Insurance Company against entertaining the Cross Objection, is hence rejected.** **7. The Cross Objector claims on the basis of certain documents produced in the appeal, that he had made an implant of an artificial limb which resulted in considerable expenses. Document No.1 is a fitment proposal showing a total amount of Rs.2,88,980/-. The appellant is said to have paid an advance amount of Rs.1,30,000/-. The balance amount has been paid but the bills were misplaced;** **is the contention. In fact, from the documents produced as document Nos.1 to 3, it cannot be said that the fitment was carried out.** **Admittedly, the final bill is also not produced along with the documents. In such circumstance this Court does not find any reason to grant** MACA No.869/2011 and Cross-objection 158/2018 ::8:: **compensation for the further medical expenses said to have been incurred by the appellant. The documents produced do not establish such a procedure having been carried out.** **8. However, one has to look at the contention with respect to the multiplier to be applied. The multiplier to be applied insofar as an 18 year old is 18. The copy of the election ID card with respect to Noushad produced at Ext.A4 indicates that the injured was 18 years of age at the time of accident. In such circumstances computation would be done by adopting a multiplier of 18. The Cross Objector's counsel also has a contention that there should be an enhancement of 50% insofar as future prospects. It is to be noticed that the income at Rs.4500/- was already accepted by the Division Bench. Further there is nothing produced to indicate the Vocation of the injured and hence there could be no addition made** MACA No.869/2011 and Cross-objection 158/2018 ::9:: **on future prospects.** ## **9. The award for disability compensation** **would stand enhanced as follows: 4500*12*18*75/100=729000/-. The Tribunal had granted Rs. 6,48,000/-. The enhancement granted by this Court would be Rs.81,000/-. Out of this the liability of the appellant Insurance Company, ie.,** **the National Insurance Company will be Rs.40,500/-. The Cross Objector is entitled to the balance amount as apportioned to the National Insurance Company Limited alone. There cannot be any enhancement claimed from the other insurance company since there is no separate appeal filed from the order. The instant appeal is only against the liability of the insurance company who is the appellant herein. The cross-objection can only be on the enhanced claim against that company. It is made clear that the balance amount would be paid without interest for 901 days.** MACA No.869/2011 and Cross-objection 158/2018 ::10:: **The claimant-Cross-objector shall produce a copy of a cancelled cheque of the bank account in her name with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT to the said account, failing which the claimant can approach the Tribunal.** **Appeal rejected and cross-objection partly allowed leaving the parties to suffer their respective costs.** **Sd/-** **K. Vinod Chandran, Judge** **jma**