High Court of KeralaSingle Judge2020-06-09Appeal dismissed; MACT award upheld; No interfe...

The Oriental Insurance Co. Ltd v. Jerson Jacob

Case / Petition Number:MACA.No.1546 OF 2018(E)

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2020-06-09
Court Decision / Holding: Appeal dismissed; MACT award upheld. The High Court found no illegality in the Tribunal’s approach to disability assessment and future prospects uplift, and did not interfere with the award. The insurer remains liable to pay the compensation along with interest as determined by the MACT.
Final Disposition: Appeal dismissed; MACT award upheld; No interference with Tribunal’s award.

Parties to the Case

Appellants / Petitioners

The Oriental Insurance Co. Ltd

Respondents

Jerson Jacob

Legal Representation & Advocates

Counsels for Petitioners

• VPK Panicker

Counsels for Respondents

• Deepak Joy.K

Case Synopsis & Summary

This is a Motor Accident Claims Appeal arising from an award of the Motor Accidents Claims Tribunal, North Paravur, in OP(MV) 804/2012. The insurer-appellant challenged the Tribunal’s award of compensation to the respondent-claimant for injuries suffered in a 2012 road accident. The Tribunal awarded ₹28,82,369 across heads including medical expenses, pain and suffering, loss of amenities, and notably an 85% functional disability, with notional income fixed modestly at ₹9,000 per month, and allowed 50% towards future prospects, despite the medical board recording only 40% disability. The insurer argued that the disability percentage and the uplift for future prospects were illegitimate, citing that the death-based rules (Pranay Sethi) should not apply to non-fatal injuries and that future prospects should be limited to 40%. The claimant contended that the disability was effectively functional and that the evidence supported a substantial impairment, including nerve transfer surgeries and muscular wasting. The High Court, while acknowledging the Tribunal’s reliance on several Supreme Court decisions, upheld the Tribunal’s approach, noting that the functional disability was determined after considering medical evidence and that legal precedents (Syed Sadiq, Raj Kumar, Pranay Sethi, Zuhara) justify a 50% uplift for future prospects in appropriate cases. The Court dismissed the appeal, leaving the MACT award intact and the insurer liable with interest as provided in the award.

Provisions of Law Cited

Section 173 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Future prospects uplift in MACT compensation (50% for notional income when age is below 40) as per Pranay Sethi and related jurisprudence
Functional disability assessment guided by medical evidence and Supreme Court jurisprudence (Syed Sadiq, Raj Kumar)
Notional income concept in MACT calculations

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that the Tribunal erred in fixing 85% functional disability despite medical board noting only 40% disability. It argues that the 50% uplift for future prospects is inappropriate in a non-fatal accident and relies on the 40% benchmark from Pranay Sethi and related decisions. The insurer also questions the high notional income and contends that the Tribunal’s approach results in an excessive overall award, calling the total amount ₹28,82,369% (cap ₹25,00,000) as highly excessive and not legally sustainable. It requests reduction of both the disability percentage and future-prospects uplift, consistent with Supreme Court limits.

Contentions of Respondents

The claimant argues that the physical impairment and resulting functional disability, including nerve transfer surgeries and permanent impairment, justify the Tribunal’s 85% disability finding. He contends the use of a modest notional income is conservative given his Gulf employment and ability to earn, and that 50% future prospects uplift is appropriate, supported by Syed Sadiq and related authorities. He relies on Pranay Sethi and Zuhara precedents to support the 50% uplift and contends that substantial compensation was warranted for pain, suffering, and loss of earning capacity.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.	(2014) 2 SCC 735	Positive	Tribunal relied on this Apex Court decision to justify the 85% functional disability and the 50% uplift for future prospects; the High Court did not overrule it.
Raj Kumar v. Ajay Kumar and another	(2011) 1 SCC 343	Positive	Cited as guidance for assessing functional disability; used to support the Tribunal’s approach.
National Insurance Co. Ltd. v. Pranay Sethi and others	(2017) 16 SCC 680	Positive	Judgment permitting 50% enhancement towards future prospects for notional income; relied upon by both Tribunal and Court.
National Insurance Co. v. Fathimath Zuhara	(2016) 3 KLJ 459	Positive	Division Bench recognized 50% future prospects; cited in support of the Tribunal’s award.
Paul Varghese v. Shanveen and others	(2016) 3 KLJ 23	Mentioned Only	Cited in arguments but not central to the High Court’s ruling.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942** ## **MACA.No.1546 OF 2018(E)** **AGAINST THE AWARD IN OP(MV) 804/2012 DATED 17-08-2017 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT/3rd RESPONDENT:** **THE ORIENTAL INSURANCE CO. LTD, METRO PALACE, GROUND FLOOR, OPP. NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER.** **BY ADV. SRI.VPK.PANICKER** **RESPONDENT/PETITIONER:** **JERSON JACOB, S/O.JACOB THUNDIYIL HOUSE, MANJUMMAL, ERNAKULAM DISTRICT.** **R1 BY ADV. SRI.DEEPAK JOY.K.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1546 OF 2018(E)** ## **:2:** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 9[th] day of June, 2020**_ The 3[rd] respondent-insurer in OP(MV) 804/2012 on the files of the Additional Motor Accidents Claims Tribunal, North Paravur, is before this Court aggrieved by the Award dated 17.08.2017 therein, invoking Section 173 of the Motor Vehicles Act, 1988. 2. The respondent herein, who is the petitioner in the OP(MV), filed the petition stating that on 22.11.2012, while he was riding his motorcycle, on the Glass Factory - Kalamassery road, when he reached near Tenth Pious Church, the 1[st] respondent in OP(MV) came from the opposite direction driving a mini truck and hit the respondent's bike. Consequent to the accident, the respondent fell down and sustained injuries. The accident occurred due to the **MACA.No.1546 OF 2018(E)** ## **:3:** negligence of the offending mini truck, it was contended. The respondent, who was aged 23 years at the time of accident, working as Fitter in a Company in Bahrain, allegedly receiving a monthly income of 35,000/-, filed the OP(MV) claiming a₹ compensation of ₹25 lakhs. Only the appellant-insurer contested the OP(MV). The appellant admitted the insurance coverage on the offending mini truck. The appellant pointed out that there is inordinate delay in registering FIR. 3. The respondent produced Exts.A1 to A14 in the Tribunal and the Court marked Court Exts.C1 and C2. No oral evidence was adduced. 4. The Tribunal, after examining the materials on record, awarded a compensation of ₹28,82,369/- to the respondent under the following heads:- |**Sl.**|**Head of Claim**|**Amount claimed**|**Amount awarded**| |---|---|---|---| |**No.**||**(Rs.)**|**(Rs.)**| |1|Damage to clothing and articles|1,000|1,000| |2|Medical expenses|1,50,000|1,82,069| |3|Future medical expenses|2,00,000|Nil| |4|Bystander's expenses|1,00,000|5,700| |5|Traveling expenses|5,000|5,000| |6|Extra nourishment|Nil|10,000| ## **MACA.No.1546 OF 2018(E)** ## **:4:** |**Sl.**|**Head of Claim**|**Amount claimed**|**Amount awarded**| |---|---|---|---| |**No.**||**(Rs.)**|**(Rs.)**| |7|Compensation for pain and suffering|2,00,000|50,000| |8|Compensation for loss of amenities|2,00,000|1,50,000| ||and convenience in life||| |9|Compensation for loss for earning|Nil|24,78,600| ||power||| ||**Total**|28,56,000|**28,82,369**| |||(Claim is limited to|| |||25,00,000/- only)|| Respondents 1 to 3 in OP(MV) were held jointly and severally liable to pay the compensation along with interest at the rate of 7.5% per annum from the date of the OP(MV). It is aggrieved by the Award of the MACT, North Paravur, the appellant-insurer has preferred this appeal. 5. Learned counsel for the appellant-insurer argued that there is no justifiable reason for the Tribunal to arrive at a figure of 85% as functional disability, when the competent authorities have assessed the disability at 40%. Similarly, addition of 50% towards future prospects made by the Tribunal also cannot be justified. The counsel for the appellant pointed out that this is not an accident resulting in death. The Apex Court has permitted only 40% enhancement **MACA.No.1546 OF 2018(E)** **==> picture [23 x 9] intentionally omitted <==** to the actual income, towards future prospects. The award of ₹28,82,369/- is therefore highly excessive. 6. The respondent-claimant opposed the arguments of the appellant. The counsel for the respondent pointed out that consequent to the injury, the left upper limb, branchal plexus, nerve transfer had to be done on the respondent on 08.04.2013. Injury was noted to branchal plexus c5 to c6. The left shoulder of the respondent had no abduction or flexion. The medical authorities noted wasting of muscles also. Both arms and legs of the respondent are not functional. It was taking into account all these aspects that the Tribunal has fixed functional disability at 85%. 7. The learned counsel for the respondent further argued that this Court in the judgment in _**National Insurance Co. v. Fathimath Zuhara** [2016 (3) KLT 459]_ has held in similar circumstances that 50% increase in the actual income can be admitted towards future prospects. The learned counsel for the respondent also relied on the judgment in **MACA.No.1546 OF 2018(E)** ## **:6:** . _**Paul Varghese v. Shanveen and others** [2016 (3) KLJ 23]_ Therefore, no interference is called for with the award of the Tribunal. The appeal is therefore liable to be dismissed. 8. The main grievance of the appellant is that the Tribunal fixed functional disability of the respondent at 85% even though the disability as per medical records is only 40%. The Tribunal perused Ext.A1(b) scan report and Ext.C2 disability certificate issued by the Medical Board of the Medical College Hospital. The Tribunal considered the injuries sustained by the respondent and the likely consequential functional disability, on its own, independently. While doing so, the Tribunal relied on the judgment of the Apex Court in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735]._ The Tribunal was also guided by the judgment of the Apex Court in _**Raj Kumar v. Ajay Kumar and another** [(2011) 1 SCC 343]_ . The Tribunal noted that due to the physical disability of 40% reported by the Medical Board, the **MACA.No.1546 OF 2018(E)** **==> picture [23 x 9] intentionally omitted <==** functional ability of the respondent to engage in any sort of physical work has been lost. It was thus, on a proper assessment of the functional disability of the respondent that the Tribunal has fixed the same as 85%. Therefore, I do not find any reason to interfere with the findings of the Tribunal. It has also to be noted that the respondent is a technically qualified person as is evidenced by Ext.A2. The accident was of the year 2012. It was evident from the materials on record that he had worked in Gulf for two years. Though such materials were available on record, the Tribunal has fixed his notional income at a modest figure of ₹9,000/- only. Therefore, any interference with the compensation granted for loss of earning power would be very harsh. 9. The further contention of the appellant is that the Tribunal has granted 50% enhancement towards future prospects erroneously, since this is not a case of death. The learned counsel for the appellant pointed out that in the judgment in _**National Insurance Co. Ltd. v. Pranay Sethi**_ **MACA.No.1546 OF 2018(E)** **:8:** _**and others** [(2017) 16 SCC 680]_ , the Apex Court has permitted addition of 40% only towards future prospects. I have perused the records. The respondent was employed in Gulf. He therefore, should be treated as belonging to salaried class. In _**Pranay Sethi** (supra)_ , the Apex Court stated that if the person is below 40 years of age, then, 50% enhancement in income can be granted towards future prospects. A Division Bench of this Court in _**National Insurance Co. v. Fathimath Zuhara** (supra)_ granted enhancement 50% of the notional income as future prospects even in the case of an engineering student. In _**Syed Sadiq**_ ( _supra_ ), the Apex Court has held that when functional disability suffered by an injured is 85%, he is entitled to 50% increase in future prospects of the income. Therefore, going by the law laid down by the Apex Court as also a Division Bench of this Court, I do not find any illegality in Tribunal awarding 50% enhancement towards future prospects. In the circumstances, I do not find any illegality in **MACA.No.1546 OF 2018(E)** **==> picture [23 x 9] intentionally omitted <==** the impugned Award. MACA is therefore without any merit and accordingly, the same is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/08/06/2020