National Insurance Company Limited v. Shino Franklin and Others (MACA No. 1266 of 2017; CO No. 34 of 2022)

``` 2025:KER:22294 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` MONDAY, THE 10[TH] DAY OF MARCH 2025/19TH PHALGUNA, 1946 ``` ``` MACA NO. 1266 OF 2017 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 24.09.2016 IN OPMV NO.1464 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM. ``` ## **`APPELLANTS:`** ``` NATIONAL INSURANCE COMPANY LIMITED, PALARIVATTOM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. ``` ## **`BY ADV SEBASTIAN VARGHESE`** ## **`RESPONDENTS:`** - **`1 SHINO FRANKLIN, S/O.FRANKLIN, AGED 25 YEARS, PADMA VILASAM, MULAVANA P.O., KOTTAPURAM, KOLLAM, PIN – 691 503.`** - **`*2 SIJUMON GEORGE, S/O.GEORGE, HOUSE NO.36/409, KOTTEPARAMBIL HOUSE, KATRIKKADAVU, KALOOR, COCHIN-18.`** - **`*3 SIJUMON GEORGE, KELATH HOUSE, KATHRIKADAVU, KOCHI-17.`** - **`*4 ANURAJ, THUDIL PUTHEN VEEDU, MULAVANA KOTTAPPURAM, KOLLAM, PIN - 691 503.`** - **`*5 AKILRAJ, THUDIL PUTHEN VEEDU, MULAVANA KOTTAPPURAM,`** M.A.C.A.No.1266 of 2017 and C.O.No.34 of 2022 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:22294 ``` ``` -2- ``` ``` KOLLAM, PIN – 691 503. ``` ``` *THE RESPONDENTS 2 TO 5 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER/APPELLANT AS PER ORDER DATED 02.06.2017 IN I.A.NO.1751/2017 IN M.A.C.A.NO.1266/2017. ``` ## **`BY ADV KOCHUMOL KODUVATH`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2025, ALONG WITH CO.34/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1266 of 2017 and C.O.No.34 of 2022 ``` 2025:KER:22294 ``` ``` -3- ``` **==> picture [58 x 57] intentionally omitted <==** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` MONDAY, THE 10[TH] DAY OF MARCH 2025/19TH PHALGUNA, 1946 ``` ``` CO NO. 34 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 24.09.2016 IN M.A.C.A ``` ``` NO.1266 OF 2017 OF HIGH COURT OF KERALA. ``` ## **`CROSS OBJECTOR:`** ``` SHINO FRANKLIN, AGED 30 YEARS, SON OF FRANKLIN, PADMA VILASAM, MULAVANA P.O, KOTTAPURAM, KOLLAM - 691 503 ``` ## **`BY ADV KOCHUMOL KODUVATH`** ## **`RESPONDENT:`** ``` NATIONAL INSURANCE CO. LTD., PALARIVATTOM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM - 682 016. ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2025, ALONG WITH MACA.1266/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1266 of 2017 and C.O.No.34 of 2022 ``` 2025:KER:22294 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -4- ``` ## **J U D G M E N T** ## Dated this the 10[th] day of March, 2025 The 3rd respondent in O.P.(M.V.) No.1464 of 2013 on the file of the Motor Accident Claims Tribunal, Ernakulam is the appellant herein and the Cross Objection is filed by the petitioner. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 05.02.2013. According to the petitioner, on 05.02.2013 at about 7 p.m., while he was riding pillion on a motorcycle through Palarivattom-Kaloor road, he has knocked down by another motorcycle bearing Registration No.KL-7/BK-4580 driven by the 2[nd] respondent in a rash and negligent manner. As a result of the accident, the petitioner fell down and sustained serious injuries. 3. The 2[nd] respondent is the driver and the 3[rd] respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.15,00,000/- limited to Rs.15,00,000/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence M.A.C.A.No.1266 of 2017 and C.O.No.34 of 2022 ``` 2025:KER:22294 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -5- ``` on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A14 and Ext.X1. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.20,01,850/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ 9. Heard Sri.Sebastian Varghese K, the learned Counsel appearing for the petitioner/appellant, and Sri.Kochumol Koduvath, the learned Standing Counsel for the 3[rd ] respondent. 10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was studying for Marine Engineering Course and also working as a part time employee in a restaurant, M.A.C.A.No.1266 of 2017 and C.O.No.34 of 2022 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:22294` ``` -6- ``` earning Rs.5,000/- per month. The Tribunal fixed his monthly income at Rs.6,750/-. 11. As per the dictum laid down by the Hon’ble Supreme Court in the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [2011 (13) SCC 236], the notional income of a coolie, in the year 2013 will come to Rs.9,000/-. Therefore, the learned counsel prayed for fixing the notional income of the petitioner much above that of a coolie. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 12. From Ext.A13 series receipts produced by the petitioner, it is seen that, he was studying for Diploma in Marine Fabrication course in PG Marine College of Engineering , Ernakulam. The above receipt shows that, he had paid a sum of Rs.5,000/- towards fee for the above course, during the year 2011. According to the petitioner, in addition to studying for the Marine Engineering Course, he was also engaged in a part time job in a restaurant. In the above circumstances, considering the fact that the petitioner was a student in Marine Engineering Course, his notional income is fixed at Rs.12,000/-. 13. In the accident the petitioner sustained the following injuries: Severe head injury which indicates r _ight thalamic hemorrhage, axonal injury, small contusion in left posterior cerebella lobe, subarachnoid bleed, minimal traventricular bleed and mild diffuse_ M.A.C.A.No.1266 of 2017 and C.O.No.34 of 2022 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:22294` ``` -7- ``` _cerebral oedema._ 14. As per Ext.X1 disability certificate issued by the Medical Board, his permanent physical disability was assessed as 57%. However, the tribunal after noting his condition fixed his functional disability at 70%. The contention raised by the learned counsel for the 3[rd] respondent is that, the tribunal was not justified in fixing the functional disability of the petitioner at 70% when the permanent physical disability was assessed by the medical board is only 57%. Another contention raised is that, the tribunal has awarded 50% towards future prospects. 15. On the other hand, the learned counsel for the petitioner would argue that, the notional income of the petitioner fixed by the tribunal is on the lower side. According to him, the petitioner was studying for Marine Engineering Course and, because of the injuries sustained in the accident, he had to discontinue the course and his entire career was lost because of the injuries. Therefore, according to him, the functional disability fixed by the tribunal is not on the higher side. In the accident, the petitioner sustained very serious injuries, and he was treated as inpatient for 210 days. In consequence of the injuries sustained, he had to discontinue his study and the same has materially affected his career as well as his future and, as such, the tribunal was justified in fixing his functional disability at 70%. 16. On the date of accident, the petitioner was aged 22 M.A.C.A.No.1266 of 2017 and C.O.No.34 of 2022 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:22294` ``` -8- ``` years. Therefore, 40% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co. Ltd v. Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 18, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to Rs.25,40,160/-. 17. Since the notional income of the petitioner is re-fixed at Rs. 12,000, towards loss of earning he is entitled to get a sum of Rs. 1,44,000/- (12,000 x 12 months). 18. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.75,000/- and towards 'loss of amenities of life' Rs.30,000/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. 19. The petitioner sustained very serious injuries in the accident and was treated as inpatient for 210 days in different sessions. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’ and 'loss of amenities of life' are on the lower side and hence they are enhanced to Rs.2,00,000/- and 2,00,000/- respectively. 20. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to M.A.C.A.No.1266 of 2017 and C.O.No.34 of 2022 ``` 2025:KER:22294 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -9- ``` be just and reasonable. 21. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs. **34,02,860/-** , as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No**<br>**.**|**Head of Claim**|**Amount awarded**<br>**by Tribunal (in**<br>**Rs.)**|**Amount**<br>**Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earning|47,250/-|1,44,000/-| |2|Transport to hospital<br>and back to home|6,500/-|6,500/-| |3|Extra nourishment|22,000/-|22,000/-| |4|Damage to clothes and<br>articles|2,000/-|2,000/-| |5|Attendant expenses|52,500/-|52,500/-| |6|Treatment expenses|2,15,700/-|2,15,700/-| |7|Compensation for pain<br>and suferings|75,000/-|2,00,000/-| |8|Compensation for loss<br>of amenities and<br>comforts|30,000/-|2,00,000/-| |9|Compensation for<br>continuing or<br>permanent disability if<br>any|15,30,900/-|25,40,160/-| |10|Future treatment<br>expenses|20,000/-|20,000/-| ||**Total**|20,01,850/-|**34,02,860/-**| ||Enhanced Rs.14,01,010/-||| 22. In the result, this Appeal and cross-objection are disposed of directing Respondent No.3 to deposit a total sum of M.A.C.A.No.1266 of 2017 and C.O.No.34 of 2022 ``` 2025:KER:22294 ``` **==> picture [58 x 57] intentionally omitted <==** **==> picture [29 x 10] intentionally omitted <==** Rs. **34,02,860/-** (Rupees thirty four lakhs two thousand eight hundred and sixty only), less the amount already deposited, if any, along with interest at the rate ordered by the Tribunal, from the date of the petition till deposit/realisation, excluding interest for a period of 1662 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%) 23. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- **C. PRATHEEP KUMAR, JUDGE** ADS