New India Assurance Company Ltd v. Jaseer Jabbar

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943 ## MACA NO. 2684 OF 2017 [AGAINST THE AWARD DATED 15.6.2017 IN OP(MV)NO. 1386/2014 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR] ## APPELLANT/2ND RESPONDENT: THE NEW INDIA ASSURANCE COMPANY LTD FORT MUMBAI, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G. ROAD, ERNAKULAM. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ## RESPONDENT/PETITIONER: JASEER JABBAR S/O. T.M. JABBAR, THEKKEKUNNATH HOUSE, PANCHAYATH ROAD, KUZHIVELIPPADI, EDATHALA P.O., ALUVA, PIN - 683 561. BY ADVS. BABU KARUKAPADATH AMRIN FATHIMA THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 2684 of 2017 2 ## JUDGMENT This appeal is filed by the Insurance Company challenging the quantum of compensation awarded in OP(MV)No.1386/2014 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The claim petition was filed by the respondent herein seeking compensation for the injuries sustained to him in a motor accident occurred on 21.07.2014. The accident occurred when the motor cycle ridden by the respondent collided with a car driven by the 1[st] respondent in the claim petition, which was insured with the appellant. The petitioner in the claim petition was aged 17 years and was working as a Marketing Manager of Homely Food Products, Kuzhivelypady with a monthly income of Rs.8,000/-. It was also contended that, apart from the above avocation, he was pursuing his education and he also secured admission for MBBS Course in Guanxi MACA No. 2684 of 2017 3 Medical University, China. As he sustained very serious permanent partial physical disablement, the prospects of becoming a doctor is completely spoiled. Such permanent disablement incapacitated him from pursuing his avocation as well. In such circumstances, he claimed an amount of Rs.25 lakhs as compensation. 2. The appellant-Insurance Company filed a written statement admitting the insurance coverage in respect of the vehicle involved in the accident. However, they denied the negligence on the part of the 1[st] respondent in the claim petition and also the quantum of compensation claimed. The evidence in this case consists of Exts.A1 to A13 from the side of the respondent. The copy of the policy was marked as Ext.B1 from the side of the appellant. The disability certificate issued by the Medical Board was marked as Ext.C1 wherein the percentage of disability was certified as 80%. MACA No. 2684 of 2017 4 3. After the trial, the Tribunal passed an award allowing a total compensation of Rs.23,49,836/-. This appeal is filed by the Insurance Company challenging the quantum of compensation as above. 4. Heard both sides. 5. The main contention put forward by the learned counsel for the appellant is that, the Tribunal should have computed the compensation by adopting the method of computation as laid down by the Hon’ble Supreme Court in Master Mallikarjun v. Divisional Manager, National Insurance Company Limited and Another [(2014)14 SCC 396], as the 1[st] respondent was aged 17 years at the time of the accident. The learned counsel points out that, instead of adopting the said principle, the Tribunal computed the compensation by fixing the notional income with an addition of 50% thereof towards future prospects. On the other hand, the learned counsel for the respondent seriously MACA No. 2684 of 2017 5 opposes the contentions of the learned counsel for the Insurance Company and specifically brought the attention of this Court to the observations made by the Tribunal in paragraph 12 of the award wherein the reliance placed by the Insurance Company in Mallikarjun’s case was referred to and found that the facts and circumstances of the case at hand would justify adoption of a different procedure. 6. On going through the records produced, it is seen that, among the said documents, Exts.A10, A11 and A12 were produced by the respondent to establish his employment as Marketing Manager with a monthly income of Rs.8,000/-. However, the Tribunal has not accepted the same, but taking into account the bright future prospects of the respondent as revealed through other documents such as Ext.A11 Secondary School Leaving Certificate issued by the C.B.S.E., Ext.A12 certificate of higher secondary examination MACA No. 2684 of 2017 6 issued by the C.B.S.E. which indicate his educational prospects, proceeded to assess the compensation by applying the multiplier method. The Tribunal though considered the fact that as per Ext.A13, he secured admission to MBBS course, it was not relied upon by observing that the said admission was not secured on merits. However considering all the relevant aspects and the serious impact of injuries/disabilities, the quantum of compensation was determined by taking the notional income as Rs.7,000/-. In addition to that, an amount of 50% of his income was added towards future prospects. Thus the Tribunal fixed a total amount of compensation under permanent disability as Rs.18,14,400/-. It is true that, the admission secured by him for MBBS was not on the basis of any competitive examination conducted by any of the agencies in our country. But still, the fact that he could secure admission for MBBS, indicates that, there were fair chances for him to MACA No. 2684 of 2017 7 become a Doctor. In para 12 of Mallikajun's case (Supra), it was observed as follows: _“Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc; should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows:-”_ 7. It is evident from the observations in the above decision that, if there are exceptional circumstances, a different yardstick can be applied. Moreover, in the said judgment, the subject matter was an accident occurred on MACA No. 2684 of 2017 8 05.06.2006, whereas the accident in this case was on 21.07.2014. In my view, bright future prospects of the appellant as revealed through the documents produced by him and the date of accident,are exceptional circumstances, warranting application of a different yardstick, than contemplated in Mallikarjun’s case, for determining the compensation. The multiplier method is the most acceptable method in such circumstances and hence I do not find any infirmity in the finding of the Tribunal in this regard. The amount of Rs.7,000/- fixed by the Tribunal as notional income appears to be very reasonable particularly in view of the fact that the accident occurred in the year, 2014. This is particularly so, as it is a case where, a younger boy aged 17 years had suffered 80% permanent disablement and he has to live with such extensive disability throughout his life. It is true that, in National Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT 662], it was observed that, in MACA No. 2684 of 2017 9 the case of persons other than regular salaried persons, proper addition towards future prospects is 40%, whereas the Tribunal has made 50% addition. However, in the peculiar facts and circumstances of the case, I am not interfering with the computation made by the Tribunal in this regard, particularly because, the amounts awarded under the heads of pain and suffering as well as Loss of amenities, are only Rs 80,000/- and Rs 60,000/- respectively, which appears to be on lower side. Similarly, no amount is also seen granted for marriage prospects. Sustaining a permanent disablement of 80% at this tender age, would certainly make him entitled for more amounts under those heads. Thus, when the total amount of compensation granted by the Tribunal is considered, the excess amount on account of making an addition of 50% towards future prospects, instead of 40%, would not make the award unreasonable under any circumstances and hence, no interference is warranted. MACA No. 2684 of 2017 10 In such circumstances, I do not find any reason to interfere with the findings of the Tribunal either in adopting a procedure different from that of Mallikarjun’s case and by adopting the multiplier method, or with the amount of compensation awarded. Accordingly, this appeal is dismissed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk