High Court of KeralaSingle Judge2022-12-09Appeal and Cross Objection allowed; the enhance...

National Insurance Company Limited v. Anillan K.B. (MACA No. 182 of 2015 & Cross Objection No. 161 of 2021)

Case / Petition Number:MACA No. 182 of 2015; Cross Objection No. 161 of 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2022-12-09
Court Decision / Holding: The High Court allowed the appeal and cross objection to the extent indicated: it held that compensation for disability cannot be granted simultaneously with compensation for loss of earning power, striking down the latter (loss of earning power) as duplicative. It increased functional disability to 65% from 45% and, considering the claimant’s age (39), awarded future prospects at 40% of income, and an additional ₹25,000 for future treatment (including artificial limb replacement). It revised the total compensation to ₹14,61,600 and directed payment with interest at 5% from the date of the petition; it also directed the insurer to deposit the enhanced amount after the claimant provides bank details via NEFT/RTGS within specified timeframes, with no interest on the enhanced amount for a period of delay noted in the cross-objection proceedings.
Final Disposition: Appeal and Cross Objection allowed; the enhanced compensation of ₹14,61,600 to be paid with interest at 5% from the petition date; Bank transfer via NEFT/RTGS; delay in cross objection not to attract interest for 1914 days; insurer to deposit after claimant provides bank details; final order: modified quantum and directions as per judgment.

Parties to the Case

Appellants / Petitioners

National Insurance Company Limited

Respondents

Anillan K.B.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Lal K. Joseph, SC
• Sri. V.S. Shiraz Bava

Counsels for Respondents

• A.N. Santhosh

Case Synopsis & Summary

This is an appeal by National Insurance Company Limited challenging the Motor Accidents Claims Tribunal, North Paravur's award in OP(MV) No.883/2008 dated 30.09.2014, which granted compensation to Anillan K.B., the injured claimant. The Kerala High Court, hearing MACA No.182 of 2015 and Cross Objection No.161 of 2021 on 09.12.2022, examines both the insurer’s challenge to the quantum and the claimant’s cross-objection seeking higher compensation. The insurer contends that the notional monthly income of ₹5,000 lacks proof and that award of compensation under several heads (pain and suffering, loss of amenities, disability, and loss of earning power) is duplicative and unsustainable. The claimant/ cross objector argues that, at 39 years of age and as a mason, income should be higher (₹6,000 notional per Ramachandrappa) and that the extent of disability should be higher given the right-leg amputation; he also seeks consideration of future prospects and expenses for future treatment and artificial limb. The Court holds that compensating disability along with loss of earning power concurrently is improper and reduces the latter to nil, but relies on several precedents to fix functional disability at 65% and future prospects at 40%, with an additional ₹25,000 for future treatment. The enhanced compensation is ₹14,61,600; interest at 5% on the enhanced amount from the petition date; directions for NEFT/RTGS payment; the appeal and cross objection are allowed to the stated extent.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant insurer contends that the trial court erred in awarding compensation on several heads without solid documentary proof of income, maintaining that monthly notional income should be ₹5,000 and that compensation for pain and suffering, loss of amenities, disability, and loss of earning power is duplicative and unsustainable. The Tribunal’s calculation and the approach to disability and future earning power should be revisited, and the court should not enhance the award by duplicating heads of compensation.

Contentions of Respondents

The cross objector/claimant argues that the claimant, a 39-year-old mason, deserved higher income (citing Ramachandrappa for the notional ₹6,000). Given the right leg amputation, functional disability should be higher than the medical board’s 45%, and future prospects should be considered. The claimant seeks compensation for future treatment and artificial limb replacement, and contends that the disability and earnings should reflect actual earning capacity and its impact on future prospects.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.	[2011 KHC 4675]	Positive	Used to determine notional monthly income for the year 2007 (₹6,000).
Raj Kumar v. Ajay Kumar	[2011 (1) KLT 620 (SC)]	Positive	Cited in support of considering future prospects and disability jurisprudence for compensation.
Syed Sadiq etc. v. Divisional Manager, United India Insurance Company	[AIR 2014 SC 1015]	Positive	Supreme Court authority cited regarding disability assessment and future prospects.
Karthik Subramanian v. B. Sarath Babu & Another	[2021 ACJ 993]	Positive	Cited in context of functional disability and earning capacity considerations.
Erudhaya Priya v. State Express Transport Corporation Ltd.	[2020 (4) KLT 730 (SC)]	Positive	Supreme Court authority referenced on disability and earning capacity.
Jithendran v. The New India Assurance Co. Ltd.	[2021 (4) KLJ 646]	Positive	Kerala/Judicial authority cited for disability and future prospects standards.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, ``` ``` 1944 ``` ``` MACA NO. 182 OF 2015 ``` ``` IN O.P.(MV)NO.883/2008 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR ``` ## **`APPELLANT:`** ``` NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, IRINJALAKUDA, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI.LAL K.JOSEPH, SC SRI.V.S.SHIRAZ BAVA ``` ## **`RESPONDENT:`** ``` ANILLAN K.B., ``` ``` S/O. BALAN, MUNAPPURATHU HOUSE, (KARIYEZHATHU),THURUTHIPPURAM, VADAKKEKARA - 685 011. ``` ``` BY ADV A.N.SANTHOSH ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2022, ALONG WITH CO.161/2021, THE COURT ON 09.12.2022 DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021 ``` ``` --2-- ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, ``` ## **`1944`** ``` CO NO. 161 OF 2021 ``` ``` AGAINST THE ORDER/JUDGMENT IN MACA NO.182/2015 OF HIGH COURT OF KERALA ``` ## **`PETITIONER:`** ``` ANILAN K.B., AGED 52 YEARS ``` ``` S/O.BALAN, MANAPPURATH HOUSE, ``` ``` (KARIYEZHATHU), THURUTHIPURAM, VADAKKEKARA. ``` ``` BY ADV A.N.SANTHOSH ``` ## **`RESPONDENT:`** ## **`NATIONAL INSURANCE COMPANY LIMITED,`** ``` BRANCH OFFICE, IRINJALAKUDA, THRISSUR DISTRICT - 680 121. REPRESENTED BY ITS MANAGER. ``` ``` BY ADV LAL K.JOSEPH, SC ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2022, ALONG WITH MACA.182/2015, THE COURT ON 09.12.2022 DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021 ``` ``` --3-- ``` ## **`C.JAYACHANDRAN, J.`** ``` ---------------------------------------------- ``` ``` M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021 ``` ``` ---------------------------------------------- Dated this the 9[th] day of December, 2022 ``` ## **`JUDGMENT`** ``` The appeal is preferred by the 3[rd] ``` ``` respondent/insurance company and cross objection, by the claimant/injured. Under challenge in these proceedings is the order of the Motor Accidents Claims Tribunal, N. Paravur in O.P. (MV) No. 883/2008 dated 30.9.2014. While the appellant would contend that the compensation amount awarded by the Tribunal is exorbitant, the cross objector would maintain that the compensation granted is inadequate. ``` ``` 2.Heard Sri. Lal K. Joseph, learned standing counsel for the appellant and Sri. A.N. Santhosh, learned counsel for the cross objector. Perused the records. ``` ``` M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021 ``` ``` --4-- ``` ``` 3.Learned counsel for the appellant first submitted that the monthly income is notionally reckoned at Rs.5,000/-, without any supporting proof. Similarly, compensation under the heads 1) pain and suffering, 2) loss of amenities, 3) compensation for disability, and 4) compensation on account of loss of earning power, all, which are of same/similar nature, have been granted by the Tribunal, which course is not sustainable. 4.Per contra, learned counsel for the cross objector/claimants submitted that, the injured at the time of accident was aged only 39 years, and that he was a mason. Even when the income indicated inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd., [2011 KHC 4675], pertaining to the year 2007 is Rs.6,000/-, the Tribunal reckoned the monthly income at Rs.5,000/-, as against Rs.10,000/- claimed by the injured. It was pointed out that, pursuant to the accident, the right leg of the injured was amputated and he was ``` ``` M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021 ``` ``` --5-- ``` ``` assessed with a disability of 45% by the Medical Board, vide Ext. A6. Having regard to the two facts above referred, the Tribunal should have taken the functional disability at 100%, especially when the injured is a mason by profession. Similarly, no amount was granted towards future prospects. Having regard to the peculiar facts, the consequence of the disability on the earning capacity of the injured ought to have been considered, and disability compensation at the rate of 100% ought to have been given, is the submission. Finally, learned counsel pointed out that no amount has been given as compensation for future treatment expenses, or for installing and replacing artificial limb. ``` ``` 5.Having heard the learned counsel appearing on both sides, this Court is of the opinion that grant of compensation for disability, simultaneous with compensation for loss of earning power, more so when loss of income has been separately assessed ``` ``` M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021 ``` ``` --6-- ``` ``` and granted, is neither legal nor proper. Having granted compensation for disability, the sum of Rs.2,00,000/- under the head 'loss of earning power' cannot be sustained and the latter, therefore, is done away with. Insofar as the appeal is concerned, no further modification is warranted. ``` ``` 6.However, the cross objection warrants interference under more than one category. The first of course is the monthly income claimed. The injured was a mason and he mounted to box in support of Rs.10,000/- claimed as his monthly income. No other proof is forthcoming as regards the income. The notional income as indicated in Ramachandrappa(supra) for the year 2007 is Rs.6,000/-. At any rate, the monthly income as indicated in Ramachandrappa is liable to be taken and it is so done. ``` ``` 7.The next aspect is with respect to future prospects. As already indicated, the disability assessed pursuant to amputation of right leg is 45% ``` ``` M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021 ``` ``` --7-- ``` ``` as per A6 disability certificate issued by the Medical Board. Learned counsel for the cross objector is right in contending that the functional disability, which should have been reckoned by the Tribunal, should be much more, especially having regard to the nature of avocation of the injured. With one leg amputated, that too the right leg, it cannot reasonably be expected that the injured could perform his work of a mason, at any rate, not as effectively as he was doing earlier before the accident. Learned counsel relied upon the judgments of Hon'ble Supreme Court in 1. Raj Kumar v. Ajay Kumar, [2011 (1) KLT 620 (SC)], 2. Syed Sadiq etc. v. Divisional Manager, United India Insurance Company, [AIR 2014 SC 1015], 3. Karthik Subramanian v. B. Sarath Babu & Another, [2021 ACJ 993], 4. Erudhaya Priya v. State Express Transport Corporation Ltd., [2020 (4) KLT 730 (SC)] and 5. Jithendran v. The New India Assurance Co. Ltd., [2021 (4) KLJ 646]. ``` ``` M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021 ``` ``` --8-- ``` ``` 8.A perusal of the above judgments, would leave no room for any doubt that the functional disability to be taken in the case of the injured like a mason should be more than the one indicated in Ext.A6 disability certificate and accordingly, this Court fixes the functional disability of the injured at 65%. Having regard to the age of the injured at the time of accident, ie. 39 years, future prospects is to be reckoned at the rate of 40% of the income. Finally, this Court allows a sum of Rs.25,000/- more for future treatment, especially in the context of replacement of artificial limb. ``` ``` 9.In the result, this appeal, as also, the cross objection, both, are allowed and the compensation amount payable to the injured/cross objector is reworked as indicated in the tabular statement shown herein below: ``` ``` M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021 ``` ``` --9-- ``` |**`Sl.`** **`No.`** **`Head of Claim`** **`Amount`** **`awarded by`** **`the`** **`Tribunal`** **`Total amount`** **`after`** **`enhancement`** **`in appeal`** `1` `Pain and suffering` `2,00,000` `2,00,000` `2` `Loss of amenities of` `life, discomforts and` `inconvenience caused` `1,00,000` `1,00,000` `3` `Loss of income` `30,000` `36,000` `4` `Medical expenses` `95,900` `95,900` `5` `Bystander expenses` `6,400` `6,400` `6` `Transportation` `expenses` `5,000` `5,000` `7` `Damage to clothing &` `artcles` `500` `500` `8` `Extra nourishment` `10,000` `10,000` `9` `Compensation for` `disability` `4,05,000` `9,82,800*` `10` `Future medical` `expenses` `---` `25,000` `11` `Loss of earning power` `2,00,000` `Nil` **`Total`** **`10,52,800`** **`14,61,600`** `Amount enhanced=4,08,800/-(14,61,600-10,52,800)` `*8400x12x15x65/100`|**`Sl.`** **`No.`**|**`Head of Claim`**|**`Amount`** **`awarded by`** **`the`** **`Tribunal`**|**`Total amount`** **`after`** **`enhancement`** **`in appeal`**| |---|---|---|---|---| ||`1`|`Pain and suffering`|`2,00,000`|`2,00,000`| ||`2`|`Loss of amenities of` `life, discomforts and` `inconvenience caused`|`1,00,000`|`1,00,000`| ||`3`|`Loss of income`|`30,000`|`36,000`| ||`4`|`Medical expenses`|`95,900`|`95,900`| ||`5`|`Bystander expenses`|`6,400`|`6,400`| ||`6`|`Transportation` `expenses`|`5,000`|`5,000`| ||`7`|`Damage to clothing &` `artcles`|`500`|`500`| ||`8`|`Extra nourishment`|`10,000`|`10,000`| ||`9`|`Compensation for` `disability`|`4,05,000`|`9,82,800*`| ||`10`|`Future medical` `expenses`|`---`|`25,000`| ||`11`|`Loss of earning power`|`2,00,000`|`Nil`| |||**`Total`**|**`10,52,800`**|**`14,61,600`**| ||`Amount enhanced=4,08,800/-(14,61,600-10,52,800)`|||| ``` 10. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the ``` ``` M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021 ``` ``` --10-- ``` ``` same shall be granted set off. ``` ``` 11. Since there was a delay of 1914 days in filing the cross objection, the interest for the enhanced quantum shall not run for the said period, as directed in order dated 07.06.2022 in Cross Objection No.161 of 2021 in M.A.C.A.No.182 of 2015. ``` ``` 12. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. ``` ``` M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021 ``` ``` --11-- ``` ``` The appeal is allowed to the above extent. ``` ``` Sd/- ``` ``` C.JAYACHANDRAN JUDGE ``` ``` ak ```