Kerala High Court

New India Assurance Co Ltd vs Ayisha on 1 February, 2023

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944
                      MACA NO. 2081 OF 2022
  AGAINST THE ORDER/JUDGMENT IN OPMV 192/2018 OF MOTOR ACCIDENT
                     CLAIMS TRIBUNAL VADAKARA
APPELLANT/2ND RESPONDENT:

          NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, EDODI,
          P.O. VATAKARA - 1 - 673101, KOZHIKODE DISTRICT,
          REPRESENTED BY ITS ADMINISTRATIVE OFFICER (LEGAL)
          REGIONAL OFFICE, KANDOMKULATHY TOWERS, MG ROAD,
          COCHIN , PIN - 682011

          BY ADV P.G.GANAPPAN



RESPONDENTS/CLAIMANTS & RESPONDENT 1:

    1     AYISHA, AGED 61 YEARS, W/O EBRAHIM KUTTY C.N., ALIAS
          EBRAYIKUTTY, S/O. ABDU, OTHAYOTH HOUSE, P.O VELOM,
          PERUVAYAL VIA KUTTIADY, VATAKARA TALUK, KOZHIKODE
          DISTRICT, PIN - 673508

    2     MUHAMMADALI, AGED 44 YEARS, S/O EBRAHIM KUTTY C.N.,
          ALIAS EBRAYIKUTTY, OTHAYOTH HOUSE, P.O. VELOM
          PERUVAYAL, VIA KUTTIADY, VATAKARA TALUK, KOZHIKODE
          DISTRICT, PIN - 673508

    3     SAHIRA, W/O SULFIKARA, PARUTHIKUNIYIL P.O., NOCHAT,
          KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673614

    4     NASEERA P., D/O. EBRAHIM KUTTY C.N., ALIAS EBRAYI
          KUTTY, THAZHE PUTHIYOTTIL P.O., THIRUVALLUR VATAKARA
          TALUK, KOZHIKODE DISTRICT , PIN - 673541

    5     NASEEHATH, D/O.EBRAHIM KUTTY C.N., ALIAS EBRAYIKUTTY,
          OTHAYOTH HOUSE P.O., VELOM PERUVAYAL, VIA KUTTIADY,
          VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673508

    6     MUHAMMED JALEEL C P., S/O VEERAN C.P., AGED 31 YEARS,
          RESIDING AT CHEERAM PARAMBIL HOUSE, P.O. THANNEERKODE,
          TRICHUR DISTRICT, PIN - 679536
 MACA NO. 2081 OF 2022
                                 2


            KRISHNALAL S
            N.SHANOJ(K/323/2007)
            C.MOHAMMED HABEEB(K/278/2007)




      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION     ON   01.02.2023,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 MACA NO. 2081 OF 2022
                                   3


                             JUDGMENT

This matter is of the year 2022 and has not been

admitted. However, both sides are ad idem that it can be

disposed of, after being formally admitted, based on the

undisputed evidence on record - handed over by them across

the Bar.

2. I, therefore, admit this appeal and proceed to dispose

it of finally, with the consent of both sides.

3. The Original Petition, from which the impugned

Award was issued by the Motor Accidents Claims Tribunal,

Vatakara, was filed by late Ebrahim Kutty C.N., who was

involved in an accident caused by the offending vehicle owned

and driven by the sixth respondent, and which is insured by

the appellant - Insurance Company.

4. Pertinently, the appellant does not dispute the

accident, or the fact that late Ebrahim Kutty C.N. sustained

injuries; but impugn the Award of the Tribunal broadly on

three grounds namely: (a) that the notional income

adopted in favour of the claimant was wrong; (b) that the

multiplier adopted was incorrect; and (c) that the percentage

of disability found in favour of late Ebrahim Kutty C.N. was MACA NO. 2081 OF 2022

without any basis.

5. I have heard Sri.P.G.Ganappan - learned standing

counsel for the appellant and Sri.Krishnalal S. - learned

counsel appearing respondents 1 to 5. The notice to the sixth

respondent has already been dispensed with; and, in any

event, in view of the holdings proposed in this judgment, this

Court would be justified in disposing of this appeal in his

absence.

6. Sri.P.G.Ganappan - learned standing counsel for the

appellant, vehemently argued that since no evidence had

been led by late Ebrahim Kutty C.N. or by his legal heirs,

namely respondents 1 to 5 herein, regarding his income, the

adoption of Rs.15,000/- as the notional income is in violation

of the declarations of the Hon'ble Supreme Court in

Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Company Ltd. [(2011) 13 SCC 236]. He then

submitted that, since the multiplier to be adopted was 9 and

since it has already been so done by the Tribunal, an

additional amount of Rs.3,60,000/-, towards 'loss of earnings'

from 26.01.2017 to 09.02.2018, was incorrect. He further

contended that the conclusion of the Tribunal, that late MACA NO. 2081 OF 2022

Ebrahim Kutty C.N. had suffered 50% disability, is without

any basis, particularly when it itself records in the impugned

order that no evidence had been led by him or by his legal

heirs to prove so.

7. In response, Sri.Krishnalal S. - learned counsel

appearing for respondents 1 to 5 submitted that the Tribunal

has correctly assessed the income of late Ebrahim Kutty C.N. ,

because he was a self employed person, conducting his own

furniture manufacturing unit and engaged in its retail sale.

He submitted that, even going by Ramachandrappa (supra),

the income reckonable for a person, with an unascertainable

sum in the year 2017, was Rs.11,000/-; and that going by the

further ratio in Rajani v. Oriental Insurance Co. Ltd. [2022

(5) KLT Online 1012 (SC)], a robust view has to be taken with

respect to persons who are engaged in skilled work and such

other avocations.

8. As regards the multiplier adopted by the Tribunal,

Sri.Krishnalal S., submitted that this is strictly in terms of

Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT

802 (SC)]; and that the contention of the appellant, that loss

of earnings could not be given additionally, is not only MACA NO. 2081 OF 2022

untenable but without any rational basis.

9. As regards the third afore argument of the appellant,

Sri.Krishnalal S., submitted that, even though the certificate

of disability could not be produced by his clients or by late

Ebrahim Kutty C.N., this has been correctly assessed by the

Tribunal in paragraph 34 of the impugned award, wherein, it

has found that the obtention of such a certificate was

incapable on account of the peculiar facts involved in this

case. He thus prays that this appeal be dismissed.

10. I have evaluated and assessed the rival submissions

on the touchstone of various documents and materials

available on record and those which have been handed over

across the Bar by the learned counsel for parties.

11. Since the facts are not in dispute, it does not require

this Court to deal with them in detail.

12. The only points of controversy in this case are three:

namely: (a) that the income reckoned by the Tribunal in

favour of late Ebrahim Kutty C.N. was in error; (b) that the

multiplier adopted was wrong; or in the alternative, that loss

of earnings ought not to have been granted; and (c) that the

functional disability adopted by the Tribunal was in error. I MACA NO. 2081 OF 2022

deal with each of these presently.

(a) Income of late Ebrahim Kutty C.N.

13. The learned Tribunal has, in paragraph 32 of the

impugned award, considered this issue in detail and found

that, at the time when the accident occurred on 26.01.2017,

late Ebrahim Kutty C.N. was self-employed and conducting his

own manufacturing unit, with retail sale of wooden furniture.

The Tribunal relied upon A12 series in substantiation of this

and I do not see any reason to find error in this because, the

said documents clearly show that he was a self-employed

person engaged in a business. No doubt in

Ramachandrappa (supra), the standard fixed for a person

whose income is unascertainable is Rs.11,000/- per month for

the year 2017; however, in Rajani (supra), the Hon'ble

Supreme Court held that, in the case of skilled workers,

agricultural workers and persons engaged in such other

avocations, a robust view has to be taken with respect to the

income, which is to say that deviation from the standard set

in Ramachandrappa (supra) would be permissible.

14. In the case at hand, Ext.A12 series, as I have already

said above, establishes that late Ebrahim Kutty C.N. was a MACA NO. 2081 OF 2022

self-employed person conducting a business of his own,

engaged in the manufacture and retail sale of wooden

furniture. I do not, therefore, think that the Tribunal has

erred, in any manner, in accepting Rs.15,000/- per month as

the notional income, which is only Rs.4,000/- more than what

has been standardised in Ramachandrappa (supra). I,

therefore, answer this issue against the appellant.

(b) The multiplier adopted by the Tribunal

15. Sri.P.G.Ganappan - learned standing counsel for the

appellant, vehemently argued that the award of compensation

under the head 'loss of earnings', with the multiplier of 9,

disentitles respondents 1 to 5 to additional compensation

under the head 'permanent disability', with the same

multiplier. His argument was that, when the Tribunal

adopted the multiplier 9, to grant an amount of Rs.3,60,000/-

under the head 'loss of earnings' for the period from

26.01.2017 to 09.02.2018, only a lower multiplier could have

been adopted thereafter, for the purpose of computation of

permanent disability.

16. I certainly cannot understand the purport of the

afore argument because, the undisputed evidence on record MACA NO. 2081 OF 2022

shows that late Ebrahim Kutty C.N. was hospitalised for 120

days and was completely immobile for nearly two years. The

'loss of earnings' for the period from 26.01.2017 to

09.02.2018 was, therefore, inevitable and justifiable on all

counts. Therefore, the only other issue is whether a lower

multiplier ought to have been adopted.

17. In this regard, interestingly, Sri.P.G.Ganappan

unequivocally admits that, going by Sarla Verma (supra), the

multiplier to be adopted is 9, which has been correctly done

by the Tribunal. His assertion was, however, that once

compensation under the head 'loss of earnings' had been

granted, the multiplier for the purpose of compensation for

disability ought to have been reduced to 7, which is the

relevant one for a person in the age group of 61 to 65. I am

afraid that I cannot find favour with this argument at all

because, when it is admitted that late Ebrahim Kutty C.N. was

60 years at the time of the accident, it is apodictic that the

multiplier to be adopted is 9. This cannot be altered in any

manner, even though 'loss of earnings' has also been granted,

for the reason that he was bedridden for nearly two years on

account of the serious injuries caused in the accident. This MACA NO. 2081 OF 2022

argument, therefore, is also without merit.

18. There is no doubt, as is also stated in the impugned

Award, that no disability certificate had been obtained by late

Ebrahim Kutty C.N. or by his family. However, the learned

Tribunal explains this in paragraph 34 of the order, which is

extracted as under, so as to avoid repetition:

"There is no disability certificate produced by the petitioner. Ext.A4, A6 and A9 series documents would show that deceased Ebrahim Kutty C.N alias Ebrayikutty sustained severe head injury, subarachnoid haemorrhage in bilateral parietal, frontal and left temporal lobes, grade III diffuse axonal injury, diffuse cerebral edema, punctuate hemorrhagic contusion left frontal lobe, fornix haematoma with intraventricular haemorrhage involving left lateral ventricle, avulsion of right ear, temporal bone and cartilage exposed with multiple crushed fragments, near total amputation of tip of left thumb, loss of consciousness, right pinna avulsion injury from superior auriculo temporal sulcus extending over to the posterior aspect of cymba concha, with exposed crushed cartilages, LT thumb - crushed pulp tissu, NBI, LT forearm - contusion over distal 1/3 with closed muscle/nerve injury and left hand post fasciotomy status issue loss from left thumb. Admittedly this claim petition filed by the deceased Ebrahim Kutty C.N alias Ebrayikutty. He died on 24.5.2021. Petitioner has filed IA.468/2019 for referring the petitioner to the Medical Board, Government Medical College Hospital, Kozhikode and the same was closed by this Tribunal due to the death of petitioner. There is no circumstances to obtain disability certificate. In the petition it is stated that deceased undergone treatment from various hospitals. He has produced medical prescription dated 4.1.2020. The deceased was aged 60 years and 4 months (as per Ext.A14 copy of Aadhar card) at the time of accident."

MACA NO. 2081 OF 2022

19. The afore view of the learned Tribunal certainly is

justified, particularly because late Ebrahim Kutty C.N. died

on 24.05.2021; while I.A.No.468/2019 - with a prayer to refer

him to the Government Medical College, Kozhikode - was

pending. There was no other option for the Tribunal but to

then make an assessment of the disability on its own, based

on the other documents, which are also without any contest.

20. Going by the medical records, as has also been

recorded in the impugned Award, the injuries sustained by

late Ebrahim Kutty C.N. are as follows:

"1. Severe head injury,

2. Subarachnoid haemorrhage in bilateral parietal, frontal and left temporal lobes,

3. Grade III diffuse axonal injury.

4. Diffuse cerebral edema,

5. Punctuate hemorrhagic contusion left frontal lobe,

6. Fornix haematoma with intraventricular haemorrhage involving left lateral ventricle,

7. Avulsion of right ear,

8. Temporal bone and cartilage exposed with multiple crushed fragments,

9. Near total amputation of tip of left thumb,

10. Loss of consciousness, Right pinna avulsion injury from superior auriculo temporal sulcus extending over to the posterior aspect of cymba concha, with exposed crushed cartilages.