National Insurance Company Limited v Kevin KuriaKose

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 3[RD] DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944 ``` ## `MACA NO. 282 OF 2023` ``` AGAINST THE AWARD DATED 22.09.2022 IN OP(MV) 176/2018 IN THE ADDL. DISTRICT MOTOR ACCIDENTS CLAIMS TRIBUNAL – IV, ERNAKULAM. ``` ## `APPELLANT/3RD RESPONDENT:` ``` NATIONAL INSURANCE COMPANY LIMITED, NOW REPRESENTED BY ITS DEPUTY MANAGER(LEGAL), KOCHI REGIONAL OFFICE, OMANA BUILDINGS, KOCHI – 682035. BY ADVS. P.JACOB MATHEW PREETHY R. NAIR RUPA MARIAM THOMAS MATHEWS JACOB (SR.) ``` ## `RESPONDENT/CLAIMANT:` ``` KEVIN KURIAKOSE, AGED 24, S/O KURIAKOSE JOSEPH, MUTTATHIPARAMBIL HOUSE, AZHEEKKAL.P.O, PUTHUVYPE, ERNAKULAM DISTRICT, PIN – 682 508. ``` ## `SMT.KOCHUMOL KODUVATH-R` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 282 OF 2023 ``` ``` -2- ``` ## `JUDGMENT` ``` The National Insurance Company Limited (‘Insurance Company’ for short), impugns the Award of the Additional Motor Accidents Claims Tribunal - IV, Ernakulam (‘Tribunal’, for short) in OP(MV)No.176/2018 filed by the 1[st] respondent herein, arguing primarily that the notional income adopted in his favour, as also the amount towards “Future Prospects” added to it, are incorrect; and further that no amounts under the head “Loss of Earning” could have been favoured to him, since he was only a student. ``` ``` 2.Sri.Mathews Jacob – learned Senior ``` ``` Counsel, instructed by Smt.Preethy R.Nair, appearing for the appellant, argued that when it isunequivocallyadmittedbythe ``` ``` respondent/claimant, even in his evidence, that he was a student, aged 20 years at the relevant time, there could have been no “Loss of ``` ``` MACA NO. 282 OF 2023 ``` ``` -3- ``` ``` Earning”; and therefore, that the Tribunal has erred in awarding Rs.60,000/- under that head. ``` ``` 3.Sri.Mathews Jacob then pointed out that the Tribunal has adopted Rs.11,500/- as the “notional monthly income” of the claimant without any basis; and that, to make matters worse, has added a further 40% as “Future Prospects”, thus enhancing it to Rs.16,100/-. He argued that this is grossly improper and thus prayed that this Appeal be allowed to the extent impugned. ``` ``` 4.Smt.Kochumol Koduvath – learned counsel ``` ``` appearing for the claimant, on the other hand, submitted that her client has suffered 25% permanent disability on account of the injuries caused in the accident, which is evident from Ext.C1 Certificate; but that the real impact on him is much more, because his right hand has been fully immobilized and that this has been ``` ``` MACA NO. 282 OF 2023 ``` ``` -4- ``` ``` found by the Tribunal in paragraph 18 of the Award, recording that he could not fold his hand or move the same. She relied on the judgments in ``` ``` Pappu Deo Yadav v. Naresh Kumar [2020 (6) KHC SN ``` ``` 5] and in Meena Pawaia and Others v. Ashraf Ali ``` ``` and Others [2021 (6) KHC 596] to argue that, in ``` ``` such circumstances, the “Future Prospects”, particularly for a student, is fully justified; and that the adoption of 40% percentile for such purpose, can never be found to be ``` ``` disproportionate or excessive. ``` ``` 5.Smt.Kochumol Koduvath then added that, ``` ``` even though it has not been so claimed, the “marriage prospects” of her client would be now severely prejudiced on account of the injury; and therefore, that the Tribunal ought to have granted compensation under that head as well. She thus prayed that this Appeal be dismissed. ``` ``` MACA NO. 282 OF 2023 ``` **==> picture [22 x 8] intentionally omitted <==** ``` 6.I have considered the afore submissions ``` ``` and have tested them on the touchstone of the documents marked in evidence – copies of which have been handed over across the Bar by the learned counsel for the parties, with the ``` ``` specific understanding that it can be acted upon by this Court. ``` ``` 7.The essential facts involved are not in dispute. ``` ``` 8.It is admitted that the respondent met ``` ``` with an accident and suffered injuries, as has been recorded in Ext.A4 - Wound Certificate and other medical documents on record. ``` **==> picture [377 x 10] intentionally omitted <==** ``` respondent had to go through several procedures as part of his treatment; and that the Medical Board constituted, has certified his whole body disability to be 25%, as is evident from Ext.C1, ``` ``` MACA NO. 282 OF 2023 ``` **==> picture [22 x 9] intentionally omitted <==** ``` which also remains unimpeached. ``` ``` 10.As I have seen above, only two questions have been raised by the appellant, namely, as to whether the Tribunal has erred in granting “Loss of Earning” of Rs.60,000/- to the respondent; and whether it was right in having adopted the percentile of 40 as “Future Prospects”, added to his notional monthly income. Of course, there is ``` ``` also a faint contention against the quantum of the notional income adopted. ``` ``` 11.As regards the “Loss of Earning”, the ``` ``` pleadings of the respondent on record would clearly indicate that he was having a part-time job in a catering business, though he does not give any specifics of the same. This averment has not been controverted by the Insurance Company even in their counter pleadings; and obviously, therefore, a balance will have to be drawn between the rival positions, by this ``` ``` MACA NO. 282 OF 2023 ``` ``` -7- ``` ``` Court. ``` ``` 12.Normally, it is true that when a student ``` ``` is injured, notional income cannot be taken for the purpose of “Loss of Earning”. However, in ``` ``` this case, the Tribunal has granted a consolidated amount of Rs.60,000/- under the ``` ``` head “Loss of Earning” to the respondent because ``` ``` of his averment that he was also working while ``` ``` pursuing his studies. In the absence of any ``` ``` evidence to the contrary, I do not think that it ``` ``` will be necessary for this Court to interfere with the said findings in any manner, ``` ``` particularly when the said amount is a ``` ``` consolidated one and which appears to be very ``` ``` reasonable, going by the nature of injuries sustained by the respondent. ``` ``` 13.Coming to the notional income adopted, ``` ``` the Tribunal has fixed it as being Rs.11,500/-, ``` ``` which is in conformity with the standardization ``` ``` MACA NO. 282 OF 2023 ``` ``` -8- ``` ``` adopted by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]. As per the ratio in this judgment, for a person whose income is indeterminable in the year 2017, it can be reckoned as Rs.11,000/-; while the Tribunal has adopted Rs.11,500/-. Since the respondent was pursuing “BBA Course”, certainly, going by various other judgments of the Hon’ble Supreme Court, including in Rajani v. Oriental Insurance Company Limited [2022 (5) KLT OnLine 1012 (SC)], a robust view ought to be taken;and I do not think that the learned Tribunal has erred in fixing it to be Rs.11,500/-, which is a mere five hundred more than what is postulated inRamachandrappa (supra). ``` ``` 14.What remains, as far as the contentions of the appellant, is whether the “Future ``` ``` MACA NO. 282 OF 2023 ``` ``` -9- ``` ``` prospects” adopted is proper. As I have already said above, going by Pappu Deo Yadav (supra) and Meena Pawaia (supra), in the case of severe ``` ``` disability, especially to the right hand of a ``` ``` right handed student, “Future Prospects” can ``` ``` certainly be added and ought to be. The surviving dispute is only regarding the ``` ``` percentile and I see that the Tribunal has ``` ``` adopted 40%, however, without any justified ``` ``` reason, but on the basis of an estimation. I ``` ``` cannot blame the Tribunal for having done so ``` ``` because, it had examined the petitioner ``` ``` visually, when he was present before it, to find that he could not fold his hand or move the same ``` ``` below the knee. The aftermath of the accident ``` ``` certainly is grave on the respondent, especially because he was a student; and in that perspective, perhaps, the Tribunal fixed the percentile on a rough estimation. ``` ``` MACA NO. 282 OF 2023 ``` ``` -10- ``` ``` 15.However, Ext.C1 Certificate shows that the respondent has sustained only 25% whole body permanent disability. Obviously, therefore, the functional disability ought to have been considered, particularly with respect to the ``` ``` immobility of the right hand of the respondent; and in that view, I am of the opinion that it would serve the interests of justice, if the percentile of the future prospects is reduced to ``` ``` 35, rather than 40, as has now been adopted. ``` ``` 16.Before I close, I must answer the ``` ``` further contention of Smt.Kochumol Koduvath, ``` ``` that at least a small amount towards “Loss of Marriage Prospects” ought to have been awarded to the respondent. ``` **==> picture [377 x 10] intentionally omitted <==** ``` accede to this because, no such claim was ever ``` ``` MACA NO. 282 OF 2023 ``` ``` -11- ``` ``` made before the Tribunal and it would not be justified for me to award it at this stage, particularly in an appeal filed by the Insurance Company. ``` ``` 18.Further, there is not a whisper in any ``` ``` of the pleadings or the documents to even ``` ``` passingly show that the “marriage prospects” of ``` ``` the respondent has been, in any manner, impeded; ``` ``` and therefore, the contention impelled by him ``` ``` can only be in the nature of a conjecture. ``` ``` In the afore circumstances, I allow this ``` ``` appeal partly, reducing the percentile of the “Future Prospects” adopted by the Tribunal for ``` ``` the purpose of assessment of compensation for ``` ``` disability, to be 35%, instead of 40%. ``` ``` Consequently, the quantum of compensation would stand reduced to a total amount of Rs.13,53,950/-, instead of Rs.13,85,000/- ``` ``` MACA NO. 282 OF 2023 ``` **==> picture [30 x 9] intentionally omitted <==** ``` awarded by the Tribunal. ``` ``` In all other respects, the finding and ``` ``` holdings of the Tribunal will stand confirmed. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` akv ``` ``` JUDGE ```