High Court of KeralaSingle Judge2022-06-17Appeal partly allowed; award reduced to Rs.19,1...

National Insurance Company Limited v. Ganesh (MACA 2258/2015 & CO 65/2016)

Case / Petition Number:MACA 2258/2015 & CO 65/2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: MURALI PURUSHOTHAMAN JUDGE
Judgment Date: 2022-06-17
Court Decision / Holding: Appeal disposed of; award scaled down to Rs.19,17,500; Cross Objection dismissed; balance deposit with 9% interest to be made within two months; future treatment interest to run from the date of award.
Final Disposition: Appeal partly allowed; award reduced to Rs.19,17,500; cross-objection dismissed; balance deposit with interest to be made within two months; future treatment interest from date of award.

Parties to the Case

Appellants / Petitioners

National Insurance Company Limited

Respondents

Ganesh S/o. Arumukhan Pillai

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Mathews Jacob (Sr.)
• Sri. P. Jacob Mathew

Counsels for Respondents

• Sri. A.R. George
• Sri. James Kurian

Case Synopsis & Summary

Ganesh, a construction worker, sustained serious injuries in a December 24, 2012 motor-vehicle accident involving a car, leading to hospitalization for 13 days. The Addl. Motor Accidents Claims Tribunal, Kottayam, awarded Rs. 20,01,600 as compensation. The petitioner-insurer, National Insurance Company Limited, challenged the quantum as excessive and urged conformity with Supreme Court precedents. The insurer argued for higher notional income (Rs. 7,000/month) and for applying 40% future prospects (resulting in Rs. 9,800/month), and contended the Tribunal erred in applying a 100% functional disability to a person capable of some alternate employment. The claimant Ganesh countered that the award was inadequate, and filed a cross-objection. The High Court, while recognizing the need to adhere to current jurisprudence (Pranay Sethi, Raj Kumar, Pappu Deo Yadav, Syed Sadiq), re-fixated the income and recalculated disability using modern guidelines. The Court held that future prospects could be applied and concluded that functional disability should be treated as 85% in light of potential alternate employment, rather than 100%. It reassessed the permanent disability to Rs.14,99,400 and recalculated other heads, ultimately scaling down the total to Rs.19,17,500 and dismissing the cross-objection. The court also directed deposit of the balance with 9% interest within two months and clarified that future-treatment interest runs from the date of award.

Legal Doctrines & Maxims

Not to mechanically apply the percentage of permanent disability to assess functional disability (Raj Kumar v. Ajay Kumar)
No double recovery: deduction from future earning capacity when disability already compensated under permanent disability (implicit in reassessment)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant insurer contends that the Tribunal’s quantum is excessive and inconsistent with Supreme Court precedents. Notional monthly income should be Rs.7,000 (per Ramachandrappa), with 40% future prospects added to yield Rs.9,800 per month (Pranay Sethi). The disability finding (100% functional disability) should be reconsidered in light of the possibility of alternate employment, following Raj Kumar and later Pappu Deo Yadav, Syed Sadiq, and related jurisprudence, yielding an enhanced permanent disability of Rs.14,99,400 (85% functional disability with a multiplier of 15). Loss of earnings, loss of future earning capacity, and other heads should be adjusted, with appropriate deductions. The appeal seeks enhancement of compensation consistent with new guidelines; cross-objection seeks higher quantum.

Contentions of Respondents

Ganesh argues the Tribunal’s award is inadequate and should be enhanced in line with Supreme Court guidelines. He supports the idea that notional income should reflect his occupation and that future prospects and disability assessment be properly applied; he contends 100% functional disability better reflects his loss given limited mobility post-amputation. He relies on the evolving jurisprudence (notably Raj Kumar, Pranay Sethi, Pappu Deo Yadav, Syed Sadiq) to maximize compensation and uphold non-duplication of recovery.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd.	2011 (13) SCC 236	Positive	Cited to justify notional income for a workman (Rs.8,500 in 2012) and to challenge the Tribunal’s lower notional income.
National Insurance Company v. Pranay Sethi	[(2017) 16 SCC 680]	Positive	Used to apply 40% future prospects to the notional income.
Raj Kumar v. Ajay Kumar	[(2011) 1 SCC 343]	Positive	Cited to oppose mechanically applying disability percentage to functional disability; supports non-mechanical approach.
Pappu Deo Yadav v. Naresh Kumar and others	[2020 (5) KLT 1108 SC]	Positive	Followed Raj Kumar; provides guidelines for assessing functional disability.
Syed Sadiq and others v. Divisional Manager, United India Insurance Company	[(2014) (2) SCC 735]	Positive	Used to justify 85% functional disability and consideration of alternative employment.

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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 MURALI PURUSHOTHAMAN FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 MACA NO. 2258 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 572/2013 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM** ## **APPELLANT/3RD RESPONDENT:** NATIONAL INSURANCE COMPANY LIMITED TRIPUNITHURA, NOW REPRESENTED BY ITS ASSISTANT MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI35. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENT/PETITIONER:** GANESH S/O. ARUMUKHAN PILLAI, MULLASSERIKUNNEL, PUTHUPPARAMBIL, PANCHAPAN'S HOUSE, NEAR THURUTHY MISSION CHURCH, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY, PIN-686 320. BY ADVS. SRI.A.R.GEORGE SRI.JAMES KURIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.06.2022, ALONG WITH C.O. NO.65 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA 2258/2015 & CO 65/2016 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944** **CO NO. 65 OF 2016** **AGAINST THE ORDER/JUDGMENT IN MACA 2258/2015 OF HIGH COURT OF KERALA** ## **- PETITIONER/CROSS OBJECTOR RESPONDENT:** GANESH S/O.ARUMUKHAN PILLAI, MULLASSERIKUNNEL, PUTHUPPARAMBIL, PANCHAPANS HOUSE, NEAR THURUTHY MISSION CHURCH, VAZHAPPALLY EAST VILLAGE, CHANGANASSERY BY ADV SRI.JAMES KURIAN ## **- RESPONDENT/ APPELLANT:** NATIONAL INSURANCE CO. LTD. TRIPUNITHURA, REPRESENTED BY ITS ASST.MANAGER, KOCHI, REGIONAL OFFICE, OMANA BUILDING, M G ROAD, KOCHI 35 BY ADV. SRI. A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.06.2022, ALONG WITH MACA.2258/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA 2258/2015 & CO 65/2016 3** ## **JUDGMENT** The appeal is preferred by the insurance company challenging the quantum of compensation awarded by the Addl. Motor Accidents Claims Tribunal-I, Kottayam in O.P.(MV) No.572/2013. The parties to this appeal will hereinafter be referred to as petitioner and respondents in accordance with their status in O.P.M.V. 2. The case of the petitioner before the Tribunal was that, on 24.12.2012, while he was riding a motor cycle through M.C road, a car bearing Reg. No. KL-33-D 7754, hit the motorcycle and the petitioner sustained serious injuries. He was taken to Medical College Hospital, Kottayam and was treated there as an inpatient for 13 days and he continued his treatment thereafter. The petitioner contended that the accident happened due to the rashness and negligence on the part of the second respondent who was driving the car at the **MACA 2258/2015 & CO 65/2016 4** time of accident. The first respondent is the registered owner of the car. The petitioner filed the claim petition seeking an amount of Rs.21,23,500/- as compensation for the injuries sustained in the accident. 3. Before the Tribunal, respondents 1 and 2 remained ex parte. No oral evidence was adduced by either side. Exts.A1 to A13 were marked on the side of the petitioner. The 3[rd] respondent insurance company filed a written statement admitting that the offending vehicle was covered by a valid insurance policy. However, they contended that the accident happened due to the negligence of the rider of the motorcycle and that the amount claimed is excessive. The Tribunal found that the accident happened due to the negligence of the 2[nd] respondent and awarded an amount of Rs.20,01,600/- as compensation for the injuries sustained by the petitioner. The compensation awarded by the Tribunal under various heads is reproduced hereunder: **MACA 2258/2015 & CO 65/2016 5** |Sl.No.|Head of claim|Amt.Claimed|Amt.awarded| |---|---|---|---| |1.|Loss of earnings|31500|22500| |2.|Transport to hospital|5000|4000| |3.|Extra nourishment|3000|3000| |4.|Damage to clothings|2000|1000| |5.|Medical expenses|40000|10012| |6.|Bystanders expenses|42000|15000| |7.|Pain and sufferings|200000|100000| |8.|Permanent disability|600000|12,96,000| |9.|Loss of future earning capacity|10,00000|3,00,000| |10|Compensation for loss of amenities||2,00,000| |11|Future treatment|2,00,000|50,000| ||Total|20,01,512|rounded to Rs.20,01,600/-| 4. The appeal is filed aggrieved by the amount of compensation granted by the Tribunal. The petitioner has filed the cross-objection contending that the amount awarded by **MACA 2258/2015 & CO 65/2016 6** the Tribunal is inadequate. 5. Heard Sri. James Kurian, the learned Senior counsel for the petitioner and Sri. A.R.George, the learned Senior counsel appearing for the Insurance Company. 6. According to the learned counsel for the insurance company, the compensation awarded under various heads is excessive and against the decisions of the Apex Court in various judgments. 7. The Tribunal has fixed the income of the petitioner as Rs.4,500/- notionally for the purpose of assessment of compensation. He was a construction worker. Going by the decision in **Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011 (13** **SCC) 236),** a workman is entitled for an amount of Rs.8,500/- as notional monthly income in the year 2012. The petitioner claimed Rs.7,000/- as his monthly income. The Tribunal ought to have accepted the same. For the purpose of **MACA 2258/2015 & CO 65/2016 7** computation of compensation, I take the monthly income of the petitioner as Rs.7,000/-, as claimed. He sustained serious injuries in the accident. Therefore, 40% of the income is to be added towards future prospects in the light of the decision in **National Insurance Company V. Pranay Sethi [(2017) 16 SCC 680]** . Accordingly, the monthly income of the petitioner is re-fixed as **Rs.9,800/-** (7000+2800). 8. The Medical Board issued Ext.A10 disability certificate assessing the percentage of permanent disability of the petitioner as 40%. From Ext.A10, it is seen that his right leg was amputated below the knee. The Tribunal found that being a construction worker, the petitioner could not continue the same avocation and took the functional disability of the petitioner as 100%. The said finding is challenged by the learned Senior counsel for the insurance company on the ground that though the petitioner could not continue the same avocation, the Tribunal did not consider the alternative **MACA 2258/2015 & CO 65/2016 8** employment which could be taken up by the petitioner. The Senior Counsel relied on the decision of the Apex Court in **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343]** wherein it was held that the Tribunal shall not mechanically apply the percentage of permanent disability to assess the functional disability. In **Pappu Deo Yadav vs. Naresh Kumar and others [2020 (5) KLT 1108 SC],** the Apex Court followed the decision in **Raj Kumar** ‘s case and laid down the guidelines for assessing functional disability. Considering that the disability of the petitioner on account of amputation of his right leg below the knee will not prevent him from taking up an alternative employment though he may not be able to do the same avocation, the functional disability proportionate to the whole body disability of 40% can safely be assessed as 85% [ **Syed Sadiq and others V. Divisional Manager, United India Insurance Company (2014 (2) SCC 735** )]. The petitioner was aged 37 years at the time of the accident. The **MACA 2258/2015 & CO 65/2016 9** multiplier adopted is ‘15’. Since the percentage of disability for the assessment of compensation is fixed as 85%, the compensation for permanent disability is re-assessed as **Rs.14,99,400/-** (9800x12x15x85/100). The petitioner was awarded an amount of Rs.12,96,000/- under the head permanent disability. Therefore, he will be entitled for an enhanced amount of **Rs.2,03,400/-** under the said head. 9. Towards loss of earnings, an amount of Rs. 22,500/has been awarded. Since I have re-fixed the income of the petitioner, the compensation for loss of earnings is recalculated as Rs.35,000/- (7000x5 months). After deducting Rs.22,500/-, the petitioner will be entitled for an additional amount of **Rs.12,500/** - under the said head. 10. Towards loss of future earning capacity, the Tribunal awarded an amount of Rs.3,00,000/-. It is to be noted that the petitioner has already been awarded compensation under the head permanent disability. Therefore, he is not entitled for **MACA 2258/2015 & CO 65/2016 10** compensation under the head loss of future earning capacity and an amount of Rs.3,00,000/- awarded under the said has to be deducted. 11. I find that the Tribunal has awarded just compensation under other heads. 12. Accordingly, the appeal filed by the Insurance Company is disposed of scaling down the impugned award to **Rs.19,17,500/-** [20,01,600- (2,03,400+12,500- 3,00,000)] and the Cross Objection filed by the petitioner is dismissed. On 27.10.2015, this Court stayed the operation of the impugned award on condition that the appellant shall deposit 50% of the amount before the Tribunal. It is submitted by the learned Senior Counsel for the insurance company that the said amount has already been deposited. Therefore, the insurance company shall deposit the balance amount before the Tribunal with 9% interest per annum from the date of the petition till realisation, within a period of two months from the date of **MACA 2258/2015 & CO 65/2016 11** receipt of a copy of this judgment. It is made clear that the amount awarded towards future treatment shall carry interest only from the date of the award. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-+