The New India Assurance Co. Ltd. v. Satheeshkumar K.G. and others (MACA No. 3056 of 2017)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **FRIDAY, THE 6[TH] DAY OF JANUARY 2023 / 16TH POUSHA, 1944 MACA NO. 3056 OF 2017** ## **AGAINST THE AWARD IN OP(MV) No.81/2016 MACT, THODUPUZHA** ## **APPELLANT/S:** THE NEW INDIA ASSURANCE CO. LTD,DIVISIONAL OFFICE, KOTTAYAM, REPRESETNED BY THE DULY CONSTITUTED ATTORNEY,ANANDAVALLY P.K, (DEPUTY MANAGER, REGIONAL OFFICE),KANDAMKULATHY TOWERS,M.G ROAD, KOCHI 682 011 BY ADV SRI.M.JACOB MURICKAN ## **RESPONDENT/S:** 1 SATHEESHKUMAR K.G,AGED ABOUT 28 YEARS,S/O. GOPINATHAN, KANNAMKARAYEZHUTHU HOUSE,KOMBAMUKKU, PARATHODU VILLAGE, RAMAKKALMEDU P.O, NEDUMKANDAM(VIA), UDUMBANCHOLA TALUK,IDUKKI DISTRICT, PIN 685 553 2 TOMY JOSEPH,AGED ABOUT 52 YEARS, S/O. JOSEPH, KANAKKALIL HOUSE, MACHERYKADA BHAGAM, UPPUTHARA P.O, UPPUTHARA KARA, UPPUTHARA VILLAGE,IDUKKI DISTRICT, PIN 685 505 3 RUBY JOSEPH,AGE AND FATHER'S NAME NOT KNOWN]MUNDACKAL HOUSE, AYYAPPANCOIL P.O,MATTUKATTA, IDUKKI DISTRICT, PIN 685 507 4 BIJI V.S,AGE NOT KNOWN, S/O. SASIDHARAN, VAZHAVILAYIL HOUSE,MURIKKASSERY P.O, IDUKKI DISTRICT, PIN 685 604 **MACA NO. 3056 OF 2017** -2- 5 HARISHKUMAR G,AGE NOT KNOWN, S/O. C.N GOPINATHAN, KANNAMKARAYEZHUTHU HOUSE, RAMAKKALMEDU P.O, KARUNAPURAM, UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PIN 685 553 BY ADVS.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 3056 OF 2017** -3- ## **JUDGMENT** (Dated this the 6[th] day of January 2023) The 5[th] respondent in O.P.(M.V.) No.81 of 2016 is the appellant and respondent Nos.1 to 5 herein are the petitioner and respondents 1 to 4 therein. 2. This appeal is filed by the company aggrieved by the compensation awarded to the tune of Rs.10,00,500/with interest at the rate of 9% per annum to the first respondent. 3. The petitioner was a pillion rider in motor cycle with reg KL- 69-3884 and hit against a Maruti wagon R car near a petrol pump at Parappu Kara on the Kattappana - Kuttikkanam road. The accident happened due to the negligent driving of the driver of the Maruti car and hence, **MACA NO. 3056 OF 2017** -4- claimed compensation for the injuries sustained by him. Respondent Nos.1 to 4 before the Tribunal were ex-parte. 5th respondent alone filed written statement contending that the petitioner therein/claimant has to prove the loss of earnings, transportation expenses, extra nourishment, damage to clothing and medical and nursing expenditures. The insurance policy of the maruti vehicle was admitted by the company. It was contended that the petitioner was not wearing a helmet which is mandatory for a passenger in two wheeler. 4. The Tribunal relying on Ext Nos.A1 to A16 awarded a total compensation of Rs.10,00,500/- with interest of 9% per annum from the date of petition till realisation. **MACA NO. 3056 OF 2017** 5. One of the contentions taken by the appellant company in this appeal is that the Tribunal took the monthly income as Rs.20,000/- without any evidence and added 15% towards future prospects and fixed it as Rs.30,000/-. Even if 15% is added to Rs.20,000/- the same would come to only Rs.23,000/-. But the tribunal took it as Rs.30,000/-. 6. The counsel for the claimant submitted that Ext.A8 shows the petitioner was a technically qualified person holding a diploma certificate in X ray Welding and Ext.A9 salary certificate is issued by Noofal Electrical Equipments Establishment at Bahrain, where he was working earlier and it proves that he was earning a monthly income of Rs.30,000/-. Moreover Ext.A13 is another certificate issued from TESLA Electricals, Kattappana which shows **MACA NO. 3056 OF 2017** -6- that the claimant was earning Rs.20,000/- per month as an electrician. Therefore, the Tribunal was justified in taking the monthly income as Rs.20,000/- and awarded future prospects also because he has sustained 15% disability and the said disability will also is of permanent nature which will affect his job seriously and there is no chance for any increase in salary. 7. The counsel also relied upon the decision of the Apex Court in **Sidram v. United India Insurance Co. Ltd. [2022 SCC Online SC 1597]** for the proposition that future prospects can be awarded in the injury cases also and there is no strict jacket formula that only future prospects can be awarded only in cases of death. In the said case, the ## **MACA NO. 3056 OF 2017** -7- injured had a whole body disability of 45% and functional disability of 100%. Therefore, while awarding compensation for future loss of earning due to permanent disability, taking into consideration of whole body disability and functional disability, the court awarded future prospects also. The counsel also relied on the decision of High Court of Karnataka, Dharwad bench in M.F.A. No.103807 of 2016 between **New Indian Assurance company v. Abdul & others** , wherein the high court of Karnataka awarded future prospects at the rate of 25% though the injured in that case had only 20% of whole body disability. 8. In this case, as per the disability certificate produced, the injuries sustained are abrasion right forehead, lacerated injury just lateral to the right eye, abrasion **MACA NO. 3056 OF 2017** -8- dorsum of right hand, contusion right knee patella fracture and comminuted fracture of inferior pole right patella with right tendon injury. For these injuries the disability was assessed at 15%. The above injuries would not qualify the petitioner/claimant for grant of future prospects when taking the monthly income, as the only difficulty faced by him is pain and stepping up and down. Therefore, the Tribunal was not justified in adding 15% towards future prospects. The decision cited above are factually different from this case and hence, those decision has no effect to the facts of this case. The injuries are not grave in nature, and therefore the fixing of monthly income with 15% towards future prospects is not correct and the addition of 15% towards future prospects is set aside. 8. Before the Tribunal Ext.A13 was produced to **MACA NO. 3056 OF 2017** -9- show that he was earning Rs.20,000/- per month. The person who has issued the certificate was not examined and therefore the said document cannot be taken into consideration for fixing the monthly income. In the absence of any documentary evidence regarding proof of income, the only option available is to rely on the decision reported in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [(2011) 13 SCC 236].** Relying on the said decision, a coolie who has met with an accident in the year 2015, the monthly income to be taken is Rs.10,000/-. Ext.A8 shows that he holds a diploma certificate in X ray welding. Therefore a technically qualified person would be earning little more than what is earned by a coolie. Therefore, the monthly income of the **MACA NO. 3056 OF 2017** -10- claimant/petitioner can be re-fixed as Rs.15,000/-. Since the petitioner was aged 27 years, the multiplier to be adopted is 17. The will come disability compensation Rs.15,000x12x17x15/100 = Rs.4,59,000/- In the result the appeal is allowed, modifying the award of Tribunal and the claimant/petitioner is entitled to Rs.4,59,000/- (Rupees four lakh fifty nine thousand only) being the re-fixed compensation for permanent disability with 8% interest from the date of petition till realisation. The compensation awarded under all other heads by the Tribunal are confirmed. **SD/BASANT BALAJI, JUDGE** _dl/_