United India Insurance Company Limited v. Arun.K and Aresh Mon

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 13[TH] DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943** **MACA NO. 4125 OF 2019** **AGAINST THE AWARD IN OPMV 785/2016 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL , MANJERI, MALAPPURAM** ## **APPELLANT/2ND RESPONDENT:** UNITED INDIA INSURANCE COMPANY LIMITED REGIONAL OFFICE, HOSPITAL ROAD, ERNAKULAM, COCHIN682035. BY ADV JOHN JOSEPH VETTIKAD ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 AND 2:** 1 ARUN.K, AGED ABOUT 21 YEARS, S/O.SATHYAN, KALARIKKAL HOUSE, PALAKKALVETTA.P.O., THUVOOR, MALAPPURAM-679327. (CLAIMANT) 2 AREESH MON, AGED 39 YEARS, S/O.MUHAMMEDALI, THUNDUPARAKKAL HOUSE, PANDIKKAD.P.O., MALAPPURAM-676521 (OWNER - CUM DRIVER OF THE OFFENDING VEHICLE). BY ADVS. SRI.C.DINESH SRI.K.M.FIROZ SRI.MOHAMED ISMAYIL AVUNHIPPURAM SMT.M.SHAJNA SRI.P.C.MUHAMMED NOUSHIQ SRI.E.C.AHAMED FAZIL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Maca No.4125 of 2019 2 Dated this the 13[th] day of September,2021 ## **J U D G M E N T** The appellant-insurer was the 2[nd] respondent in O.P (MV) No.785/2016 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondents in the appeal were the petitioner and the 1[st] respondent before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the injuries that he sustained in an accident on 25.04.2016. It was his case that, on 25.04.2016, while he was riding his motorcycle bearing registration No.KL-10/AK-7175 from Pandikkad to Karuvarakundu, when he reached a place named Thuvur, a mini lorry bearing registration No. KL- 55/C 871(lorry) driven by the 1st respondent in a rash and negligent manner hit the motorcycle. The petitioner sustained serious injuries and was treated as an inpatient. The 1st Maca No.4125 of 2019 3 respondent was the owner cum driver and the 2nd respondent was the insurer of the lorry. The petitioner was a DTP operator and was earning Rs.10,000/- per month. The petitioner was treated as an inpatient for 70 days in six spells in two different hospitals. He had sustained permanent disability. Hence, he claimed a compensation of Rs.15,00,000/- from the respondents. 3. The respondents entered appearance and filed separate written statements. The respondents refuted the allegations in the claim petition. Nevertheless, the 2[nd] respondent/insurer, admitted that the lorry had a valid insurance coverage. It was also contended that the accident occurred due to the negligence of the petitioner. It was stated that the petitioner was a minor and had no driving license. Therefore, he was not entitled for any amount as compensation. 4. The petitioner produced and marked Exhibits A1 to A9 in evidence. The 2[nd] respondent produced Exhibits B1 to B3 in evidence. The disability certificate issued by the medical board was marked as Exhibit ‘X1’. Maca No.4125 of 2019 4 5. The Tribunal, by the impugned award, allowed the claim petition, by permitting the petitioner to realise an amount of Rs.36,76,000/- with interest and cost from the 2[nd] respondent. 6.Aggrieved by the award, the 2[nd] respondent/insurer is in appeal. 7. Heard; Sri. John Joseph Vettikkad the learned counsel appearing for the appellant/2nd respondent and Sri. E. Dinesh the learned counsel appearing for the 1[st] respondent and Sri. K.M.Firoze the learned counsel appearing for the 2[nd] respondent. 8. The principle grounds of challenge in the memorandum of appeal are:- (i) that there is no proof that the petitioner was doing DTP work and earning a monthly income of Rs.10,000/-. (ii) that the award of future prospects at 40% is clearly unsustainable in law. (iii) that the award of Rs.1,20,000/- towards loss of income is unsustainable in law. ## **Ground No.(i)** 9. The petitioner had specifically averred in the Maca No.4125 of 2019 5 claim petition that he was 18 years of age and was doing DTP work. 10. The Tribunal based on the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] and the decision of this Court in **Reeja Ignesious** **& others v. Mohammadali & others** (unreported judgment in MACA No.2359/2012), fixed the notional income of the petitioner at Rs. 10,000/- per month. 11. In **Ramachandrappa(supra),** the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4500/- per month. 12. In **Sayed Saddiqu and Others v. Divisional Manger, United India Insurance Co.Ltd** [2014 (2) SCC 735], the Honourable Supreme Court has fixed the notional income of a vegetable vendor in the year 2008 at Rs.6500/- per month. 13. In the instant case, the accident occurred in the year 2016. The petitioner had claimed that he was a data entry operator. Following the ratio in the afore-cited Maca No.4125 of 2019 6 decisions I am of the considered opinion that the fixation of notional income of the petitioner at Rs.10,000/- by the Tribunal is not at all on the higher side. It is in consonance with the bench mark fixed in the aforesaid decisions. Therefore, I answer ground No.(i) against the appellant. ## **Ground No.(ii)** 14. The next contention is that the award of future prospects at 40% is unsustainable in law. 15. As per Exhibit ‘X1’ disability certificate produced before the Tribunal, it is proved that the petitioner has a permanent disability of 90%. As he was a data entry operator, certainly his functional disability has to be treated at 100%. 16. In **Mekala v. Malathi** [2014(11) SCC178] and **Pappu Deo Yadav v. Naresh Kumar & others** [AIR 2020 SC 4424], the Honourable Supreme Court has held that, in the case of serious injuries, the same yardstick for award of future prospects as that of a case of a fatal accident, can be adopted. Maca No.4125 of 2019 7 17. In the present case, as the petitioner was only 18 years of age and he was a DTP operator and he has sustained 100% functional disability, I totally agree with the finding of the Tribunal that the appellant is entitled for future prospects at 40% on the compensation for loss due to disability. ## **Ground No.(iii)** 18. Admittedly, the accident occurred on 25.04.2016, the award was passed on 27.03.2019. The petitioner had claimed loss of earnings for a period of one year, which is perfectly justifiable. 19. The Tribunal based on the notional income of the petitioner fixed at Rs.10,000/-, awarded an amount of Rs.1,20,000/- for a period of twelve months. This according to me is correct and sustainable in law. I do not find any error in the Tribunal awarding an amount of Rs.1,20,000/- towards loss of earnings. 20. On a comprehensive appreciation of the pleadings and materials on record and the elaborate findings rendered by the Tribunal, I do not find any error Maca No.4125 of 2019 8 in the compensation awarded by the Tribunal. 21. The Honourable Supreme Court in **New India Assurance Company Ltd. v. Kiran Singh & Others** [2004 AIR SCW 4212] has depreciated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. 22. It is to be borne in mind that the accident occurred as early as on 25.04.2016. It is nearly five years after that the petitioner has been knocking at the doors of the courts seeking compensation on account of the serious injuries that he has suffered and the vegetative state he is in at present. It is trite, that the Tribunals are permitted to do some guess work and also exercise its discretion in awarding reasonable and just compensation, for which there cannot be any straight jacket formula based on arithmetic exactitude. I find that the Tribunal has, after threadbare analysis of the facts and materials on record, judicially exercised its powers based on the provision of the Motor Vehicles Act, 1988 and the Maca No.4125 of 2019 9 authoritative precedents of the Honourable Supreme Court while arriving at a conclusion in the impugned award. I do not find any justifiable grounds in the memorandum of appeal warranting admission of the appeal, which would only be a wastage of judicial time and harassment to the 1[st] respondent. In the result, following the ratio in **Kiran Singh** (supra), I hold the appeal is devoid of any merits and does not warrant admission. Resultantly, I dismiss the appeal at the threshold. Sd/- **C.S.DIAS,JUDGE** rmm