The Legal heirs of late Gopinathan v. National Insurance Company Limited

``` 2025:KER:30688 ``` **==> picture [58 x 58] intentionally omitted <==** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE EASWARAN S.`** ``` FRIDAY, THE 28[TH] DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 ``` ## **`MACA NO. 1887 OF 2021`** ``` AGAINST THE AWARD DATED 23.12.2020 IN OPMV NO.1725 OF ``` ``` 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANTS/PETITIONERS:`** - **`1 RADHAMANI AGED 64 YEARS W/O. GOPINATHAN, VARIKKAT HOUSE, MANNAMPETTA, VARAKKARA P.O., THRISSUR DISTRICT-680 302.`** - **`2 GIREESH AGED 41, W/O. GOPINATHAN, VARIKKAT HOUSE, MANNAMPETTA, VARAKKARA P.O., THRISSUR DISTRICT-680 302.`** - **`3 GEETHA AGED 39, W/O. VINOD S. NAIR, PARVATHY VILASAM, AIMS PONEKKARA P.O., ERNAKULAM DISTRICT, 682 041.`** - **`4 GINEESH AGED 35, W/O. GOPINATHAN, VARIKKAT HOUSE, MANNAMPETTA, VARAKKARA P.O., THRISSUR DISTRICT-680 302. BY ADVS. EBIN GOPURAN JOSEPH GOPURAN`** ## **`RESPONDENT/2ND RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LIMITED AMBIKA ARCADE, M.G.ROAD, THRISSUR-68001 REPRESENTED BY IT'S MANAGER. BY ADV SEBASTIAN VARGHESE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.1887/2021 2 **==> picture [58 x 58] intentionally omitted <==** **==> picture [100 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> 2025:KER:30688<br>**----- End of picture text -----**<br> ## **EASWARAN S., J** ..................................... ## **MACA No.1887 of 2021** ...................................… Dated this the 28[th] day of March, 2025 ## **JUDGMENT** The legal heirs of late Gopinathan are the appellants. Late Gopinathan approached the Motor Accidents Claims Tribunal, Irinjalakuda, in O.P.(MV)No.1725/2017, claiming compensation on account of an accident that occurred on 17.10.2017 at about 9 A.M., while he was riding a motorcycle bearing Reg.No.KL-45-G7589 through Amballur – Varandarappilly public road and when he reached Alagappanagar Union Office, a car bearing Reg.No.KL-08BA-250 came from west to east direction and hit the backside of the motorcycle. As a result of the accident, the motorcycle lost control and late Gopinathan fell down and sustained severe injuries. Immediately, he was taken to Elite Mission Hospital, Koorkkanchery and was treated there as an inpatient. 2. Late Gopinathan contended that he was a Mechanic, earning a monthly income of Rs.20,000/-. In support of the contention, Exts.A1 to A14 documents were produced. In support MACA No.1887/2021 3 ``` 2025:KER:30688 ``` **==> picture [58 x 58] intentionally omitted <==** of his claim that on account of the accident, late Gopinathan suffered permanent disability up to 70%, Ext.A9 - Disability Certificate was pressed into service. PW1 was examined to prove the contents of Ext.A9. The Insurance Company produced Ext.B1 copy of the insurance policy and did not adduce any oral evidence. The Tribunal, on appreciation of facts, found that the disability of late Gopinathan can only be fixed from the date of accident i.e.17.10.2017 till his death i.e.30.06.2020. The Tribunal thereafter granted the following the compensation: |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**Claimed**<br>**(Rs.)**|**Amount**<br>**Awarded**<br>**(Rs.)**|**Basis vital details in**<br>**a nutshell**| |---|---|---|---|---| |1|Loss of earnings|Nil|18,000|(Rs.9,000x2months)| |2|Transportation expenses|20,000|10,000|| |3|Damage to clothing|5,000|2,000|| |4|Extra nourishment|3,000|2,000|| |5|Medical expenses|5,00,000|3,29,973|Ext.A14| |6|Bystander’s expenses|25,000|8,400|(Rs.300x28days)| |7|Pain and suffering|2,00,000|80,000|| |8|Permanent disability|5,00,000|52,920|(Rs.9,000x12x7x7%)<br>)| |9|Loss of earning power|2,00,000|Nil|| |10|Loss of amenities|3,00,000|40,000|| |11|Loss of injury|2,00,000|Nil|| |12|Anticipated medical<br>expenses|2,00,000|Nil|| ||**Total**|**Rs.21,53,000/-**<br>**is limited to**<br>**Rs.20,00,000/-**|**Rs.5,43,293/- **|**Rs.5,43,300/-**<br>**(rounded off) along**<br>**with interest @8%**| MACA No.1887/2021 4 **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30688 ``` **p.a. from 05-122017 till realization.** 3. Aggrieved by the insufficiency in the grant of compensation, the legal heirs of late Gopinathan, who are impleaded as claimants 2 to 5, are before this Court in the present appeal. 4. Heard, Sri.Joseph Gopuran - learned counsel appearing for the appellants and Sri.Sebastian Varghese – learned counsel appearing for the Insurance Company. 5. The learned counsel for the appellants with reference to Ext.A9 submitted that in the light of the evidence of PW1, wherein it is specifically stated that late Gopinathan was suffering from post traumatic disabilities and was categorised having 70% disability both neurological and psychiatric. The Tribunal was not justified in reducing the percentage of disability to 7%. Such perverse appreciation of facts certainly requires interference by this Court. As regards the income claimed by late Gopinathan on his avocation as a Mechanic, the Tribunal ought not have fixed the same as Rs.9,000/- and the same is required to be refixed in terms of the notification issued under the provisions of the Minimum Wages Act, 1948. MACA No.1887/2021 5 **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30688 ``` 6. On the other hand, the learned counsel for the Insurance Company pointed out that late Gopinathan was not examined by a Medical Board. Even going by Ext.A9, the percentage of disability is noted as 35%. Even otherwise, under Ext.A10, the permanent disability noted by the Doctor who examined late Gopinathan towards long risk of post traumatic epilepsy is only 20%, which is a whole bodily disability. Therefore, the learned counsel for the Insurance Company justified the findings rendered by the Tribunal, stating that the Tribunal has rightly appreciated the facts and fixed the permanent disability at 7%. 7. I have considered the rival submissions raised across the Bar and is of the opinion that the appellants are entitled to succeed on the points to follow. 8. As regards the notional income of late Gopinathan is concerned, this Court finds that Tribunal has erred in fixing the same at Rs.9,000/-. Going by the principles laid down by the Hon’ble Supreme Court in _**Angad Tiwari and Another v. National Insurance Company Ltd. and Another**_ [2024 KHC 8590], this Court finds that the claimant is entitled to have the income fixed in terms of the minimum wage notified by the State of MACA No.1887/2021 6 ``` 2025:KER:30688 ``` **==> picture [58 x 58] intentionally omitted <==** Kerala. In G.O.(P)No.56/2017/Fin. dated 28.04.2017, the State of Kerala has notified the minimum wage as Rs.17,325/-. Therefore the Tribunal ought to have fixed the notional income of the late Gopinathan at Rs.17,325/-. 9. As regards the fixation of the percentage of permanent disability, it must be noticed by this Court that the contents of Ext.A9 has been proved by the claimants by due process of law by examining the Doctor who issued the same. If the Tribunal was dissatisfied with the evidence produced before it, it ought to have referred the victim to the medical board under Rule 387 of the Kerala Motor Vehicles Act, 1989. Having not done so, the Tribunal could not have reduced the percentage of disability to such a low extent, which would shock the conscience of the Court. Therefore, this Court has no doubt in its mind to hold that the Tribunal had appreciated the facts in a perverse manner, which requires interference in this proceedings. 10. In _**Prakash Chand Sharma v. Rambabu Saini and Others**_ [2025 KHC Online 7108], the Hon'ble Supreme Court reiterated the above principle and held that the Tribunal, while considering the application under Section 166 of the Motor Vehicles Act, 1983, cannot reduce the percentage of disability without MACA No.1887/2021 7 **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30688 ``` ordering reassessment. Therefore, read in cumulative, the irresistible conclusion is that the appellants are entitled to succeed on this point and the disability of late Gopinathan has to be fixed in terms of Ext.A9 at 70%. 11. Under the non-conventional heads also this Court finds that in the nature of disability suffered by late Gopinathan, a reasonable enhancement can be granted in favour of the appellants. 12. Coming to the next question regarding the entitlement for Attendant Charges, this Court cannot but notice the fact that late Gopinathan was suffering from an unstable mind due to the psychiatric disabilities consequent to the gliosis of right frontal and temporal lobes. In addition to that, in Ext.A9, the Doctor who examined the late has specifically found that he could not move about without assistance of a person. Therefore, the claimants are entitled to get Attendant Charges for one person from 17.10.2017 till 30.06.2020 i.e. from the date of accident till his death. The view taken by this Court is supported by the decision of the Hon’ble Supreme Court in _**Kajal v. Jagdish Chand & Ors.**_ [(2020) 4 SCC 413]. Therefore, it is held that the appellants are entitled to have the compensation calculated under the head Attendant Charges for MACA No.1887/2021 8 **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30688 ``` person from 17.10.2017 till 30.06.2020. As an upshot of these discussions, the appellants are entitled to succeed. The appeal is thus allowed and the appellants are entitled for enhanced compensation as follows: |**Heads**|**Amount awarded**<br>**by the Tribunal**|**Total**<br>**compensation**<br>**awarded in**<br>**appeal**|**Enhanced amount**<br>**of compensation**| |---|---|---|---| |Notional income of late Gopinathan is fixed at Rs.17,325/-.<br>Percentage of permanent disability is restored to 70%.|||| |Loss of earnings|18,000/-|1,38,600/-<br>[17325x8]|1,20,600/-<br>[138600-18000]| |Pain and suffering|80,000/-|1,00,000/-|20,000/-<br>[100000-80000]| |Loss of amenities|40,000/-|1,50,000/-|1,10,000/-<br>[150000-40000]| |Permanent<br>Disability|52,920/-|10,18,710/-<br>[17325x12x7x70/1<br>00]|9,65,790/-<br>[1018710-52920]| |Attendant Charges|Nil|5,54,400/-<br>[17325x32 months]|5,54,400/-| |**Total enhanced amount of compensation**|||**17,70,790/-**| Accordingly, the appellants/claimants are awarded an additional compensation of **Rs.17,70,790/-** (Rupees seventeen lakhs seventy thousand seven hundred ninety only) over and above the compensation awarded by the Tribunal with interest @8% per annum from the date of petition till realization together with proportionate costs. Since the claimants have restricted their claim to Rs.20 lakhs before the Tribunal, the claimants are liable to pay MACA No.1887/2021 9 **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30688 ``` additional court fees on the enhanced amount. The Insurance Company is directed to deposit the aforesaid amount within a period of two months from the date of receipt of a copy of this judgment. The Tribunal shall deduct the deficit court fees from the deposit before releasing the same. The balance amount shall be apportioned in the ratio 70:10:10:10 among the claimants 2 to 5, as ordered by the Tribunal. The appeal is ordered accordingly. Sd/- **EASWARAN S. JUDGE** ACR