Kerala High Court
Biji vs National Insurance Co. Ltd on 9 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944
RP NO. 873 OF 2022
MACA 4104/2019 OF HIGH COURT OF KERALA
REVIEW PETITIONER/APPELLANT:
BIJI,
AGED 39 YEARS,
W/O. BIJU, PULIKOOL THAZHA HOUSE, (P.O.) KOLLAM,
VIYYUR AMSOM, KODAKKATTUMURI DESOM, QUILANDY TALUK,
KOZHIKODE - 673 307.
BY ADVS.
AVM.SALAHUDDEEN
A.D.DIVYA
RESPONDENT/RESPONDENT:
NATIONAL INSURANCE CO. LTD.,
THALASSERY BRANCH OFFICE, EMPEE TOWER, TOWN HALL
JUNCTION, POST CHIRAKKARA, THALASSERY, KANNUR - 670
104, REPRESENTED BY BRANCH MANAGER.
SMT. DEEPA GEORGE, STANDING COUNSEL
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
02.12.2022, THE COURT ON 09.12.2022 DELIVERED THE FOLLOWING:
R.P.No.873 of 2022 2
ORDER
This review petition has been filed by the appellant in MACA
No.4104 of 2019 under order 47 rule 1 of Civil Procedure Code for
reviewing the impugned judgment alleging error apparent on the face
of the record.
2. According to the review petitioner, she was only 32 at the
time of accident and she suffered permanent disability, which was
assessed as 50% by the Medical Board. Though this Court fixed her
notional income @ Rs.10,000/- per month, no addition was granted
towards future prospects. It is an error apparent on the face of the
record and it has to be corrected. Hence this review petition.
3. The review petitioner suffered injuries in the motor accident
occurred on 25.02.2015 at about 2.15 pm. She was a 32 year old
coolie at the time of accident. Due to the head injury, she suffered
permanent disability of 50% as borne out from Ext.C1 disability
certificate issued by the Medical Board of Medical College Hospital,
Calicut.
4. Smt.A.D.Divya, learned counsel appearing for the review
petitioner, relied on a series of judgments of this Court as well as the
Apex Court, in which addition towards future prospects was given in
injury cases also. In Pappu Deo Yadav v. Naresh Kumar and
Others [2020 KHC 6547], the Apex Court awarded 40% addition
towards future prospects. In that case, the victim was a 20 year old
data entry operator, who suffered permanent disability, which was
assessed as 89%. In that case, the right hand of the victim was
amputated. In Nithin Maheswari v. National Insurance Co. Ltd.
and Another [2021 KHC 4912], this Court awarded 50% addition
towards future prospects, where the victim suffered 66% of permanent
disablement. In Jagdish v. Mohand and Others [2018 KHC 6166]
the Apex Court awarded 40% enhancement towards future prospects
to a victim, who was a carpenter by profession, a skilled labourer, who
lost both his hands in the accident and suffered permanent disability of
90%.
5. In Zakeer Hussain v. Jayakumar reported in [2021 (6) KLT
1235] a Single Bench of this Court awarded 25% addition towards
future prospects to a victim, who suffered 75% of permanent disability
due to amputation of leg below knee.
6. It is true that in some cases, the functional disability may be
higher than the percentage of disability mentioned in the Disability
Certificate. The review petitioner is a 32 year old coolie and for the
injuries suffered, she approached the Tribunal claiming compensation
of Rs.25,00,000/- and she was awarded Rs.9,09,400/- by the Tribunal.
In the appeal, this Court awarded enhanced compensation of
Rs.3,41,000/- in addition to the amount awarded by the Tribunal. It is
true that in the impugned judgment no addition was awarded towards
future prospects. The Tribunal also had considered her claim for
compensation for loss of earning capacity; but it was turned down;
firstly because she did not adduce any evidence to prove her
avocation, and secondly that she did not adduce any evidence to show
what all activities she was doing before the accident, and what all
activities she was not able to do after the accident, to verify whether
her earning capacity was lost or not. In Raj Kumar v. Ajay Kumar
[2011 (1) KLT 620 (SC)], it was held as follows:
"Where the claimant suffers a permanent disability
as a result of injuries, the assessment of compensation
under the head of loss of future earnings, would depend
upon the effect and impact of such permanent disability on
his earning capacity. The Tribunal should not mechanically
apply the percentage of permanent disability as the
percentage of economic loss or loss of earning capacity.
In most of the cases, the percentage of economic loss,
that is, percentage of loss of earning capacity, arising from
a permanent disability will be different from the
percentage of permanent disability. Some Tribunals
wrongly assume that in all cases, a particular extent
(percentage) of permanent disability would result in a
corresponding loss of earning capacity, and consequently,
if the evidence produced show 45% as the permanent
disability, will hold that there is 45% loss of future earning
capacity. In most of the cases, equating the extent
(percentage) of loss of earning capacity to the extent
(percentage) of permanent disability will result in award of
either too low or too high a compensation. What requires
to be assessed by the Tribunal is the effect of the
permanently disability on the earning capacity of the
injured; and after assessing the loss of earning capacity of
the injured; and after assessing the loss of earning
capacity in terms of a percentage of the income, it has to
be quantified in terms of money, to arrive at the future
loss of earnings (by applying the standard multiplier
method used to determine loss of dependency)".
7. In the case on hand, it has come out in evidence that the
review petitioner suffered 35% cognitive disability, persistent LMN
facial palsy 20%, and permanent cognitive deficits. It is pertinent to
note that no oral evidence was adduced from the side of the review
petitioner to prove the impact of the 50% permanent disability
mentioned in Ext.C1 certificate on her earning capacity. There is
nothing to show that the appellant/claimant even appeared in person
before the Tribunal to convince that she was not capable of doing
anything on her own.
8. Learned counsel Smt.Deepa George appearing for the
respondent-Insurance Co. submitted that even if she is not able to do
her coolie work, she can do some other work, which needs no physical
exertion as that of a coolie, and so it cannot be said that she lost her
earning capacity fully, due to the injuries suffered in the accident. We
have seen that the decisions cited supra, in which the Apex Court and
this Court awarded enhancement towards future prospects, the
percentage of disability was more than 60% or near to total. So, the
review petitioner is not entitled to get 40% addition towards future
prospects as held by the Apex Court in National Insurance
Company Ltd. v. Pranay Sethi and Others, [2017 (4) KLT 662
(SC)]. Even then considering the fact that the review petitioner had
suffered head injury sequelae with diffuse neurological involvement,
and cognitive deficits, this Court is inclined to award 10%
enhancement towards future prospects, for assessing compensation
towards permanent disability, suffered by her.
9. We have fixed her notional income @ Rs.10,000/-. When
10% addition is given, her monthly income would be Rs.11,000/-.
Applying the multiplier of 16, the compensation for 50% permanent
disability can be assessed as Rs.10,56,000/- (11000x12x16x50/100).
She was already paid Rs.6,72,000/- under the head permanent
disability. So she is entitled to get the balance amount of Rs.3,84,000
as enhanced compensation under the head permanent disability. In
the impugned judgment Rs.2,88,000/- was awarded as enhanced
compensation under the head permanent disability. In addition, she is
entitled to get Rs.96,000/- (3,84,000-2,88,000) while giving 10%
addition towards future prospects.
10. In the result, the review petition is allowed awarding
Rs.96,000/- more, under the head permanent disability making the
aggregate amount of enhanced compensation in the appeal as
Rs.4,37,000/- (3,41,000+96,000).
11. The respondent-Insurer is directed to deposit the aggregate
amount of compensation Rs.4,37,000/- with interest @ 8% per annum
from the date of petition till the date of deposit (excluding 341 days of
delay in filing the appeal) on similar conditions and directions in the
impugned judgment.
The review petition is allowed to that extent. No order as to
costs.
Sd/- Sd/-
SOPHY THOMAS
JUDGE
DSV/06.12.2022.
