Kerala High Court
United India Insurance Company ... vs Arun.K on 13 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 13TH 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, COCHIN-
682035.
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 13th day of September,2021
JUDGMENT
The appellant-insurer was the 2nd 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 1st 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
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 2nd respondent produced Exhibits
B1 to B3 in evidence. The disability certificate issued by
the medical board was marked as Exhibit 'X1'.
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
2nd respondent.
6.Aggrieved by the award, the 2nd 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 2nd 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
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
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.
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
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
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 1st 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
