Kerala High Court

National Insurance Co. Ltd., ... vs Anillan K.B on 9 December, 2022

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
         THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
 FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA,
                                  1944
                       MACA NO. 182 OF 2015
   IN O.P.(MV)NO.883/2008 OF THE MOTOR ACCIDENT CLAIMS
                      TRIBUNAL, NORTH PARAVUR


APPELLANT:


            NATIONAL INSURANCE CO. LTD., BRANCH OFFICE,
            IRINJALAKUDA, THRISSUR DISTRICT.


            BY ADVS.
            SRI.LAL K.JOSEPH, SC
            SRI.V.S.SHIRAZ BAVA



RESPONDENT:


            ANILLAN K.B.,
            S/O. BALAN, MUNAPPURATHU HOUSE,
            (KARIYEZHATHU),THURUTHIPPURAM,
            VADAKKEKARA - 685 011.


            BY ADV A.N.SANTHOSH


THIS   CROSS    OBJECTION/CROSS     APPEAL   HAVING   COME   UP   FOR
ADMISSION      ON   01.11.2022,   ALONG   WITH   CO.161/2021,     THE
COURT ON 09.12.2022 DELIVERED THE FOLLOWING:
 M.A.C.A.No.182 of 2015
           &
Cross Objection No.161 of 2021
                                 --2--



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
  FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA,
                                 1944
                          CO NO. 161 OF 2021
  AGAINST THE ORDER/JUDGMENT IN MACA NO.182/2015 OF HIGH
                            COURT OF KERALA
PETITIONER:
            ANILAN K.B., AGED 52 YEARS
            S/O.BALAN, MANAPPURATH HOUSE,
            (KARIYEZHATHU),
            THURUTHIPURAM, VADAKKEKARA.


            BY ADV A.N.SANTHOSH

RESPONDENT:


            NATIONAL INSURANCE COMPANY LIMITED,
            BRANCH OFFICE, IRINJALAKUDA,
            THRISSUR DISTRICT - 680 121.
            REPRESENTED BY ITS MANAGER.


            BY ADV LAL K.JOSEPH, SC

THIS   CROSS    OBJECTION/CROSS     APPEAL    HAVING   COME   UP   FOR
ADMISSION ON 01.11.2022, ALONG WITH MACA.182/2015, THE
COURT ON 09.12.2022 DELIVERED THE FOLLOWING:
 M.A.C.A.No.182 of 2015
           &
Cross Objection No.161 of 2021
                                       --3--




                   C.JAYACHANDRAN, J.
    ----------------------------------------------
                  M.A.C.A.No.182 of 2015
                            &
             Cross Objection No.161 of 2021
     ----------------------------------------------
         Dated this the 9th day of December, 2022

                                      JUDGMENT

The appeal is preferred by the 3rd

respondent/insurance company and cross objection,

by the claimant/injured. Under challenge in these

proceedings is the order of the Motor Accidents

Claims Tribunal, N. Paravur in O.P. (MV) No.

883/2008 dated 30.9.2014. While the appellant

would contend that the compensation amount

awarded by the Tribunal is exorbitant, the cross

objector would maintain that the compensation

granted is inadequate.

2. Heard Sri. Lal K. Joseph, learned standing

counsel for the appellant and Sri. A.N. Santhosh,

learned counsel for the cross objector. Perused

the records.

M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021

--4--

3. Learned counsel for the appellant first

submitted that the monthly income is notionally

reckoned at Rs.5,000/-, without any supporting

proof. Similarly, compensation under the heads 1)

pain and suffering, 2) loss of amenities, 3)

compensation for disability, and 4) compensation

on account of loss of earning power, all, which

are of same/similar nature, have been granted by

the Tribunal, which course is not sustainable.

4. Per contra, learned counsel for the cross

objector/claimants submitted that, the injured at

the time of accident was aged only 39 years, and

that he was a mason. Even when the income indicated

in Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Ltd., [2011 KHC 4675],

pertaining to the year 2007 is Rs.6,000/-, the

Tribunal reckoned the monthly income at Rs.5,000/-,

as against Rs.10,000/- claimed by the injured. It

was pointed out that, pursuant to the accident, the

right leg of the injured was amputated and he was M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021

--5--

assessed with a disability of 45% by the Medical

Board, vide Ext. A6. Having regard to the two facts

above referred, the Tribunal should have taken the

functional disability at 100%, especially when the

injured is a mason by profession. Similarly, no

amount was granted towards future prospects. Having

regard to the peculiar facts, the consequence of

the disability on the earning capacity of the

injured ought to have been considered, and

disability compensation at the rate of 100% ought

to have been given, is the submission. Finally,

learned counsel pointed out that no amount has been

given as compensation for future treatment

expenses, or for installing and replacing

artificial limb.

5. Having heard the learned counsel appearing on

both sides, this Court is of the opinion that grant

of compensation for disability, simultaneous with

compensation for loss of earning power, more so

when loss of income has been separately assessed M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021

--6--

and granted, is neither legal nor proper. Having

granted compensation for disability, the sum of

Rs.2,00,000/- under the head 'loss of earning

power' cannot be sustained and the latter,

therefore, is done away with. Insofar as the appeal

is concerned, no further modification is warranted.

6. However, the cross objection warrants

interference under more than one category. The

first of course is the monthly income claimed. The

injured was a mason and he mounted to box in

support of Rs.10,000/- claimed as his monthly

income. No other proof is forthcoming as regards

the income. The notional income as indicated in

Ramachandrappa (supra) for the year 2007 is

Rs.6,000/-. At any rate, the monthly income as

indicated in Ramachandrappa is liable to be taken

and it is so done.

7. The next aspect is with respect to future

prospects. As already indicated, the disability

assessed pursuant to amputation of right leg is 45% M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021

--7--

as per A6 disability certificate issued by the

Medical Board. Learned counsel for the cross

objector is right in contending that the functional

disability, which should have been reckoned by the

Tribunal, should be much more, especially having

regard to the nature of avocation of the injured.

With one leg amputated, that too the right leg, it

cannot reasonably be expected that the injured

could perform his work of a mason, at any rate, not

as effectively as he was doing earlier before the

accident. Learned counsel relied upon the judgments

of Hon'ble Supreme Court in 1. Raj Kumar v. Ajay

Kumar, [2011 (1) KLT 620 (SC)], 2. Syed Sadiq

etc. v. Divisional Manager, United India Insurance

Company, [AIR 2014 SC 1015], 3. Karthik Subramanian

v. B. Sarath Babu & Another, [2021 ACJ 993], 4.

Erudhaya Priya v. State Express Transport

Corporation Ltd., [2020 (4) KLT 730 (SC)] and 5.

Jithendran v. The New India Assurance Co. Ltd.,

[2021 (4) KLJ 646].

M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021

--8--

8. A perusal of the above judgments, would leave

no room for any doubt that the functional

disability to be taken in the case of the injured

like a mason should be more than the one indicated

in Ext.A6 disability certificate and accordingly,

this Court fixes the functional disability of the

injured at 65%. Having regard to the age of the

injured at the time of accident, ie. 39 years,

future prospects is to be reckoned at the rate of

40% of the income. Finally, this Court allows a sum

of Rs.25,000/- more for future treatment,

especially in the context of replacement of

artificial limb.

9. In the result, this appeal, as also, the cross

objection, both, are allowed and the compensation

amount payable to the injured/cross objector is

reworked as indicated in the tabular statement

shown herein below:

M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021

--9--




    Sl. Head of Claim                      Amount     Total amount
    No.                                    awarded by after
                                           the        enhancement
                                           Tribunal   in appeal
     1    Pain and suffering                 2,00,000           2,00,000
     2    Loss of amenities of               1,00,000           1,00,000
          life, discomforts and
          inconvenience caused
     3    Loss of income                        30,000           36,000
     4    Medical expenses                      95,900           95,900
     5    Bystander expenses                     6,400            6,400
     6    Transportation                         5,000            5,000
          expenses

          artcles
     8    Extra nourishment                     10,000           10,000
     9    Compensation for                   4,05,000          9,82,800*
          disability
     10 Future medical                             ---           25,000
        expenses
     11 Loss of earning power                2,00,000                  Nil
          Total                             10,52,800          14,61,600

Amount enhanced=4,08,800/-(14,61,600-10,52,800) *8400x12x15x65/100

10. The Insurance Company shall pay interest for

the amounts awarded by the Tribunal at the rate

directed in the impugned award and for the enhanced

amount, at the rate of 5% from the date of

petition. If any amount has already been paid, the M.A.C.A.No.182 of 2015 & Cross Objection No.161 of 2021

--10--

same shall be granted set off.

11. Since there was a delay of 1914 days in filing

the cross objection, the interest for the enhanced

quantum shall not run for the said period, as

directed in order dated 07.06.2022 in Cross