Subin Manjush C.J. v. Sanjeevi T.R. @ Saji and The Branch Manager, National Insurance Assurance Company

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 19[TH] DAY OF SEPTEMBER 2023 / 28TH BHADRA, 1945 ``` ``` MACA NO. 1359 OF 2018 ``` ``` OPMV 133/2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ``` ## **`MUVATTUPUZHA`** ## **`APPELLANT/CLAIMANT:`** ``` SUBIN MANJUSH C.J. AGED 20 YEARS AGED 20 YEARS, S/O. MANJUSH C.J., RESIDING AT VATTAUNNEL HOUSE, KALLYAR (P.O),MULLANKUTHY, THODUPUZHA, IDUKKI DISTRICT PIN- 685607. BY ADVS. SRI.JAWAHAR JOSE SMT.CISSY MATHEWS SRI.K.A.LALAN SRI.SARUN RAJAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SANJEEV T.R. @ SAJI S/O. RAGHAVAN NAIR, RESIDING AT THANDEL HOUSE, KUMARA MANGALA (P.O) THODUPUZHA, IDUKKI DISTRICT, PIN- 685608. 2THE BRANCH MANAGER NATIONAL INSURANCE ASSURANCE COMPANY, 1ST FLOOR,PULIMOOTIL SHOPPING ARCADE, THODUPUZHA, IDUKKI DISTRICT PIN- 685584. BY ADVS. SRI.A.R.GEORGE ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 19.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.1359/2018 : 2 : ## JUDGMENT The appellant is the claimant in OP(MV) No.133/2017 on the files of the Motor Accidents Claims Tribunal, Muvattupuzha. 2. The aforesaid claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 14.06.2016. According to him, the accident occurred when the motorcycle ridden by the appellant was hit by a car bearing registration No.KL-38/D 1900 driven by the 1[st] respondent in a rash and negligent manner. The said vehicle was owned by the 1[st] respondent himself, and it was insured with the 2[nd] respondent Insurance Company. The appellant was aged 19 years at the time of the accident and was a student. The injuries sustained by him resulted in partial permanent disablement of the appellant, which was certified as 42% by the Medical Board. The claim petition was submitted seeking compensation of `1 crore. 3. The 1[st] respondent remained ex-parte. The 2[nd] respondent Insurance Company contested the matter by filing a M.A.C.A. No.1359/2018 : 3 : written statement wherein they admitted the coverage of policy in respect of the vehicle. However, the negligence on the part of the 1[st] respondent was denied. The quantum of compensation was also seriously disputed by them. 4. The evidence in this case consists of Exts.A1 to A14 from the side of the appellant. The disability certificate was produced as Ext.C1. No evidence was adduced by the respondents. 5. After examining the materials placed on record, the tribunal arrived at the finding that the accident occurred due to the negligent driving of the 1[st] respondent and, therefore, the 2[nd] respondent, being the insurer of the said vehicle, was held liable to pay the compensation. The quantum of compensation was fixed as `41,71,520/- and the 2[nd] respondent was directed to deposit the said amount along with interest at the rate of 6% per annum. This appeal is submitted by the appellant seeking enhancement of compensation being dissatisfied with the quantum fixed by the tribunal. 6. Heard Sri. Jawahar Jose, the learned counsel appearing for the appellant and Sri. A.R. George, the learned M.A.C.A. No.1359/2018 : 4 : counsel appearing for the 2[nd] respondent Insurance Company. 7. The first contention put forward by the learned counsel for the appellant is with regard to the inadequacy of compensation awarded under the head of permanent disability. First of all, he disputes the monthly income taken by the tribunal as according to him, the income taken was only `72,000/- per annum, which was too inadequate. Apart from the above, it was also contended that, while computing the compensation under the said head, no future prospects were taken into consideration. The learned counsel placed reliance upon the decision rendered by the Hon’ble Supreme Court in Pappu Deo Yadav v. Naresh Kumar and others [2020 SCC Online SC 752] and the decision rendered by this Court in National Insurance Company Ltd. v. K.K. Assainar [2019 (4) KLT 39]. 8. The learned counsel for the Insurance Company would oppose the aforesaid contention. However, on carefully going through the award and the materials placed on record, I find some force in the contentions put forward by the learned counsel for the appellant. The income taken by the tribunal was `72,000/per annum, which is grossly inadequate. The learned counsel for M.A.C.A. No.1359/2018 : 5 : the appellant brought the attention of this Court to Annexures A9 and A10 mark sheets of the appellant, which would indicate that he was a very bright student. The accident occurred while he was pursuing his studies, at the age of 19 years. Consequent to the accident, he sustained very serious injuries, which resulted in amputation below the knee. The Medical Board certified the percentage of disability of the appellant as 42%. Thus, it is evident that, at a young age, the appellant sustained very serious injuries and consequential disablement of 42%, which is very crucial. Therefore, the monthly income taken by the tribunal is necessarily to be revised. Considering the date of the accident and also the fact that the appellant was a meritorious student, I deem it appropriate to fix the monthly income as `12,000/- in this case. 9. When moving on to the future prospects, it is to be noted that, as observed above, the appellant sustained very serious injuries and consequential disability at the rate of 42%. It is evident that consequent to the disability sustained at a young age, the options available before the appellant as far as his career is concerned have become limited. Several lucrative M.A.C.A. No.1359/2018 : 6 : careers cannot be pursued by the appellant on account of his disabilities. In Pappu Deo Yadav v. Naresh Kumar and others [2020 SCC Online SC 752], in paragraphs 12 and 13, it was observed as follows: 12. In view of the above decisive rulings of this court, the High Court clearly erred in holding that compensation for loss of future prospects could not be awarded. In addition to loss of future earnings (based on a determination of the income at the time of accident), the appellant is also entitled to compensation for loss of future prospects @ 40% (following the Pranay Sethi principle). 13. The factual narrative discloses that the appellant, a 20 year old data entry operator (who had studied up to 12[th] standard) incurred permanent disability, i.e, loss of his right hand (which was amputated). The disability was assessed to be 89%. However, the tribunal and the High Court re-assessed the disability to be only 45%, on the assumption that the assessment for compensation was to be on a different basis, as the injury entailed loss of only one arm. This approach, in the opinion of this court, is completely mechanical and entirely ignores realities. Whilst it is true that assessment of injury of one limb or to one part may not entail permanent injury to the whole body, the inquiry which the court has to conduct is the resultant loss which the injury entails to the earning or income generating capacity of the claimant. Thus, loss of one leg to someone carrying on a vocation such as driving or something that entails walking or constant mobility, results in severe income generating impairment or its extinguishment altogether. Likewise, for one involved in a job like a carpenter or hairdresser, or machinist, and an experienced one at that, loss of an arm, (more so functional arm) leads to near extinction of income generation. If the age of the victim is beyond 40, the scope of rehabilitation too diminishes. These individual factors are of crucial importance which are to be borne in mind while determining the extent of permanent disablement, for the purpose of assessment of loss of earning capacity.” M.A.C.A. No.1359/2018 : 7 : ## 10. Besides the same, in the very same decision, it was observed in paragraph 21 as follows: “21. This Court is also of the opinion that the courts below needlessly discounted the evidence presented by the appellant, in respect of the income earned by him. Working in the informal sector as he did, i.e., as a typist/data entry operator in court premises in Delhi, his assertion about earnings Rs.12,000/- could not be discarded substantially, to the extent of bringing it down to Rs.8,000/- per month. Such self employed professionals, it is noticeable, were not obliged to file income tax returns for AY 2011-2012, when no levy existed for anyone earning less than Rs.1,60,000/- per annum. The advocate who deposed about the earnings of the appellant was believed to the extent that the tribunal fixed the appellant’s monthly earnings at Rs.8,000/-. If one takes into account contemporary minimum wages for skilled workers (which was in the range of Rs.8,500/-) the realistic figure would be Rs.10,000/- per month. Adding future prospects at 40%, the income should be taken as Rs.14,000/- for the purpose of calculation of compensation. Accordingly, this Court finds that the compensation payable for the disability of loss of an arm (assessed at 65%) would be Rs.19,65,600/(i.e. Rs.,14000 x 12 x 65% x 18) or Rupees Nineteen lakhs sixty five thousand six hundred only.” 11. In the light of the aforesaid observations, I am of the view that, future prospects at the rate as fixed by the Hon’ble Supreme Court in Pranay Sethi’s case have to be adopted, which is 40%. Thus, while recalculating the compensation under the head of permanent disability, the amount would come to `15,24,096/- [(12000+40%) x 12 x 18 x 42/100). The amount already awarded under this head is `5,44,320/- and accordingly, M.A.C.A. No.1359/2018 : 8 : the said enhancement would result in a further sum of `9,79,776/-. 12. Another contention put forward by the learned counsel for the appellant is with respect to the compensation granted towards fixing an artificial limb. The appellant produced Annexure-1 tax invoice in respect of the artificial limb, which indicates that the amount involved is `4,55,000/-. The amount awarded by the tribunal under this head was only `2,50,000/-. Therefore, the additional amount receivable under this head would come to `2,05,000/- and the said amount is granted. Another aspect is with regard to future treatment expenses. The specific contention put forward by the learned counsel for the appellant in this regard is that, in order to maintain the artificial limb, he has to incur an expense which is around `25,000/- in a year and the said amount is also to be granted to him. To substantiate the same, the appellant has produced Annexures-2 to 8. From the perusal of the records, it is evident that there is an average expense of above `.23,000/- per month and therefore, I am of the view that some amount has to be granted towards the M.A.C.A. No.1359/2018 : 9 : periodical maintenance of the artificial limb. In the facts and circumstances of the case, after taking into account the documents produced in this case, I deem it to fix the said amount as `4 lakhs towards future treatment expenses(maintenance of artificial limb). The learned counsel for the respondent Insurance Company pointed out that, even without any details, the tribunal has awarded an amount of `2 lakhs under this head, which has to be adjusted towards the said amount. The said contention appears to be reasonable. Therefore, I find that towards future expenses, a further amount of `.2 lakhs has to be granted, which is the amount after deducting the amount already awarded by the tribunal under this head. 13. Thus, the total amount receivable by the appellant is determined as `13,84,776/- (9,79,776 + 2,05,000 + 2,00,000). In such circumstances, this appeal is allowed, and the award passed in OP(MV) No.133/2017 dated 11.01.2018 passed by the Motor Accident Claims Tribunal, Muvattupuzha is modified by granting an additional amount of `13,84,776/- (Rupees thirteen lakhs eighty four thousand, seven hundred and seventy six only) M.A.C.A. No.1359/2018 : 10 : and it is directed that the 2[nd] respondent Insurance Company shall deposit an amount of `11,84,776/- (eleven lakhs eighty four thousand seven hundred and seventy six only) with interest at the rate of 7.5% per annum from the date of petition till realization and with respect to the amount of `2,00,000/- (Rupees two lakhs only) granted towards the future treatment expenses, the appellant shall be entitled to get interest at the rate of 7.5% per annum from the date of this judgment. The appeal is disposed of as above. Sd/ZIYAD RAHMAN A.A. JUDGE ncd M.A.C.A. No.1359/2018 : 11 : ## **`APPENDIX OF MACA 1359/2018`** ``` PETITIONER ANNEXURES ANNEXURE-ICOPY OF THE TAX INVOICE DATED 29.04.2017 ISSUED IN FAVOUR OF THE APPELLANT BY OTTOBOCK ANNEXURE-IICOPY OF THE TAX INVOICE DATED 26.03.2018 ISSUED IN FAVOUR OF THE APPELLANT BY OTTOBOCK ANNEXURE-IIICOPY OF THE TAX INVOICE DATED 19-04- *2018 ISSUED IN FAVOUR OF THE APPELLANT BY OTTOBOCK. ANNEXURE-IVCOPY OF THE TAX INVOICE DATED 23-05- 2018 ISSUED IN FAVOUR OF THE APPELLANT BY OTTOBOCK ANNEXURE-VCOPY OF THE TAX INVOICE DATED 26-02- 2019 ISSUED IN FAVOUR OF THE APPELLANT BY OTTOBOCKQ ANNEXURE-VICOPY OF THE TAX INVOICE DATED 28-10- 2020 ISSUED IN FAVOUR OF THE APPELLANT BY OTTOBOCK ANNEXURE-VIICOPY OF THE CERTIFICATE DATED 10-03- 2021 ISSUED BY OTTOBOCK Annexure A-VIIITRUE COPY OF THE RECEIPT VOUCHER DATED 7-7-2023. Annexure A-IXTRUE COPY OF THE CERTIFICATE DATED 26- 5-2013 ISSUED BY THE CENTRAL BOARD OF SECONDARY EDUCATION, NEW DELHI. Annexure A-XTRUE COPY OF THE CERTIFICATE DATED 21- 5-2015 ISSUED BY THE BOARD OF SECONDARY EDUCATION, THIRUVANANTHAPURAM. ```