The National Insurance Co Ltd v Vishnu P.S

``` MACA NO. 1812 OF 2019 ``` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 MACA NO. 1812 OF 2019 ``` ``` AGAINST THE AWARD DATED 19.05.2018 IN OP(MV)NO.112/2015 OF ``` ## **`MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR`** ## **`APPELLANT/3RD RESPONDENT:`** ``` THE NATIONAL INSURANCE CO LTD FIRST FLOOR, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, NORTH PARAVUR, ERNAKULAM, PIN-683513, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35 BY ADVS. GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN ``` ## **`RESPONDENT/CLAIMANT:`** ``` VISHNU P.S AGED 24 YEARS S/O.SUBRAMANYAN, PANAKKAL HOUSE, NATTIKA, NATTIKA BEACH.P.O., NATTIKA VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN-680566. ``` ``` BY ADV SRI.P.J.UNNIKRISHNAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1812 OF 2019 ``` 2 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No. 1812 of 2019 th Dated this the 16 day of October, 2023 ## JUDGMENT The appellant is the third respondent in OP(MV)No.112/2015 on the files of the Motor Accidents Claims Tribunal, North Paravur. The said claim petition was submitted by the respondent herein seeking compensation for the injuries sustained to him in a motor accident that occurred on 15.01.2015. 2. According to the respondent/claimant, the accident occurred when the motorcycle driven by the respondent was hit by the stage carriage bearing Registration No.KL-47-3132, insured with the appellant herein. The respondent was an engineering student, aged 29 years at the time of the incident. Consequent to the injuries, he sustained permanent disability of 35%. The claim petition was submitted in such circumstances, seeking compensation of Rs.40,00,000/-. 3. Before the Tribunal, the appellant alone contested ``` MACA NO. 1812 OF 2019 ``` 3 the matter by filing a written statement wherein, they admitted the insurance coverage of the vehicle but disputed the liability and quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A20 from the side of the respondent, and the disability certificate was marked as Ext.X1. No evidence was adduced on the side of the appellant herein. 5. After appreciating the materials placed on record, the tribunal came to the finding that the accident occurred due to the negligence of the driver of the stage carriage and being the insurer, the appellant was held liable to pay the compensation. The quantum of compensation was fixed as Rs.28,18,111/- and the said amount was directed to be deposited by the appellant with interest @ 7.5 % per annum from the date of petition till realisation. This appeal is submitted by the appellant in such circumstances challenging the quantum of compensation awarded by the Tribunal. 6. Heard Adv.Sri.George Cherian (Thiruvalla), the ``` MACA NO. 1812 OF 2019 ``` 4 learned senior counsel appearing for the appellant and Adv.Sri. P.R.Unnikrishanan, the learned counsel appearing for the respondent. 7. The learned senior counsel would point out that the Tribunal awarded an exorbitant amount under the head of compensation for disability. The main dispute raised by the learned counsel is with respect to the functional disability taken by the tribunal, which was 70%, whereas the disability certificate produced as Ext.X1 would indicate the percentage of disability as 52%. 8. The learned counsel appearing for the respondent would oppose the aforesaid contention by highlighting the fact that in various decisions rendered by the Hon’ble Supreme Court, including in Syed Sadiq v. Divisional Manager, United India Insurance Company [2014 (2) SCC 735], the Hon’ble Supreme Court considered the functional disability at a much higher level than the physical disability certified by the medical board. ``` MACA NO. 1812 OF 2019 ``` 5 9. I have carefully gone through the records. Of course, it is true that in several decisions, the Hon’ble Supreme Court considered a higher functional disability, but in those cases, the victims were drivers or persons engaged in manual labour. As far as this case is concerned, the respondent at the relevant time was a student of B.Tech, and according to him, he was also doing part-time employment. However, no evidence is on record to substantiate his part-time employment. The documents would indicate that after the accident, the respondent completed his engineering course and pursued the M.Tech course. The aforesaid aspect would clearly indicate that, despite the injury, he continued his studies, and he could pursue higher studies. Therefore, the criteria adopted by the Hon’ble Supreme Court in Syed Sadik’s case and other similar cases cannot be made applicable to the facts and circumstances of this case. As far as the functional disability is concerned, the same cannot be considered, in isolation, without taking into account the nature of the employment of ``` MACA NO. 1812 OF 2019 ``` 6 the respondent. A higher percentage of functional disability needs to be taken when it comes to those hersens, who are involved in manual labourer or employment that requires physical exertions. In cases where the nature of disability affects the capacity of the person concerned to continue the profession of his employment, nothing would preclude the court from taking a higher degree of functional disability. As far as the engineering student is concerned, the situation could be different, and in this particular case, the fact that the respondent has completed his degree and post-graduation course after the accident fortifies the case of the appellant. In such circumstances, I am of the view that functional disability at higher rates need not be taken, and compensation can be calculated by fixing the physical disability as certified by the medical board is 52%. While reassessing the compensation under the said head, the amount would come to Rs.15,72,480/- [10,000x+40%x52%x12x18]. The amount already awarded by the Tribunal under this head is Rs.21,15,800/- and therefore, an ``` MACA NO. 1812 OF 2019 ``` 7 excess compensation would come to Rs.5,43,320/-. 10. However, while reassessing the compensation, some other aspects are to be considered. Even though the loss of earning power was revised in terms of the physical disability as certified in the Ext.X1 certificate, the fact that the respondent has to live with that disability throughout his life cannot be ignored. He was only 20 years old at the time when the accident occurred, and it resulted in 52% disability. Therefore, even if he is employed profitably, he has to suffer the consequences of the physical disability and the difficulties arising from the accident throughout his life. Therefore, a higher amount has to be granted under loss of amenities, and the amount of Rs.2,00,000/- awarded by the Tribunal appears to be on the lower side. Therefore, a further amount of Rs.1,00,000/- is granted under the said head. Similarly, since he suffered injuries at a young age, it must have affected his marriage prospects as well, and he has to be compensated for the same. In the award, no amount is granted for the same. ``` MACA NO. 1812 OF 2019 ``` 8 Therefore, I deem it appropriate to grant a further sum of Rs.1,00,000/- under this head. Thus, it is found that the amount awarded by the Tribunal was found to be in excess by Rs.3,43,320/- [5,43,320- (1,00,000+1,00,000)]. Thus, the total compensation receivable by the respondent is to be fixed as Rs.24,74,791/- [28,18,111 - 3,43,320]. 11. In such circumstances, this appeal is allowed, the award dated 19.05.2018 in OP(MV)No.112/2015 passed by the Motor Accidents Claims Tribunal, North Paravur, is hereby modified by fixing the total compensation of Rs.24,74,791/- (Rupees twenty-four lakhs seventy-four thousand seven hundred and ninety-one only) and the appellant is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal, within a period of three months from the date of receipt of a copy of this judgment after adjusting the amount already deposited. ``` MACA NO. 1812 OF 2019 ``` 9 This appeal is allowed accordingly. sd/- ZIYAD RAHMAN, A.A, JUDGE R.AV