National Insurance Compant ... vs Kevin Kuriakose
2023 Latest Caselaw 1925 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
      FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
                         MACA NO. 282 OF 2023
AGAINST THE AWARD DATED 22.09.2022 IN OP(MV) 176/2018 IN THE ADDL.
    DISTRICT MOTOR ACCIDENTS CLAIMS TRIBUNAL - IV, ERNAKULAM.
APPELLANT/3RD RESPONDENT:

             NATIONAL INSURANCE COMPANY LIMITED,
             NOW REPRESENTED BY ITS DEPUTY MANAGER(LEGAL),
             KOCHI REGIONAL OFFICE, OMANA BUILDINGS, KOCHI - 682035.
             BY ADVS.
             P.JACOB MATHEW
             PREETHY R. NAIR
             RUPA MARIAM THOMAS
             MATHEWS JACOB (SR.)


RESPONDENT/CLAIMANT:

             KEVIN KURIAKOSE, AGED 24,
             S/O KURIAKOSE JOSEPH, MUTTATHIPARAMBIL HOUSE,
             AZHEEKKAL.P.O, PUTHUVYPE, ERNAKULAM DISTRICT,
             PIN - 682 508.

             SMT.KOCHUMOL KODUVATH-R
     THIS    MOTOR   ACCIDENT   CLAIMS     APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 03.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 282 OF 2023
                               -2-

                         JUDGMENT

The National Insurance Company Limited

('Insurance Company' for short), impugns the

Award of the Additional Motor Accidents Claims

Tribunal - IV, Ernakulam ('Tribunal', for short)

in OP(MV)No.176/2018 filed by the 1st respondent

herein, arguing primarily that the notional

income adopted in his favour, as also the amount

towards "Future Prospects" added to it, are

incorrect; and further that no amounts under the

head "Loss of Earning" could have been favoured

to him, since he was only a student.

2. Sri.Mathews Jacob - learned Senior

Counsel, instructed by Smt.Preethy R.Nair,

appearing for the appellant, argued that when it

is unequivocally admitted by the

respondent/claimant, even in his evidence, that

he was a student, aged 20 years at the relevant

time, there could have been no "Loss of MACA NO. 282 OF 2023

Earning"; and therefore, that the Tribunal has

erred in awarding Rs.60,000/- under that head.

3. Sri.Mathews Jacob then pointed out that

the Tribunal has adopted Rs.11,500/- as the

"notional monthly income" of the claimant

without any basis; and that, to make matters

worse, has added a further 40% as "Future

Prospects", thus enhancing it to Rs.16,100/-. He

argued that this is grossly improper and thus

prayed that this Appeal be allowed to the extent

impugned.

4. Smt.Kochumol Koduvath - learned counsel

appearing for the claimant, on the other hand,

submitted that her client has suffered 25%

permanent disability on account of the injuries

caused in the accident, which is evident from

Ext.C1 Certificate; but that the real impact on

him is much more, because his right hand has

been fully immobilized and that this has been MACA NO. 282 OF 2023

found by the Tribunal in paragraph 18 of the

Award, recording that he could not fold his hand

or move the same. She relied on the judgments in

Pappu Deo Yadav v. Naresh Kumar [2020 (6) KHC SN

5] and in Meena Pawaia and Others v. Ashraf Ali

and Others [2021 (6) KHC 596] to argue that, in

such circumstances, the "Future Prospects",

particularly for a student, is fully justified;

and that the adoption of 40% percentile for such

purpose, can never be found to be

disproportionate or excessive.

5. Smt.Kochumol Koduvath then added that,

even though it has not been so claimed, the

"marriage prospects" of her client would be now

severely prejudiced on account of the injury;

and therefore, that the Tribunal ought to have

granted compensation under that head as well.

She thus prayed that this Appeal be dismissed. MACA NO. 282 OF 2023

6. I have considered the afore submissions

and have tested them on the touchstone of the

documents marked in evidence - copies of which

have been handed over across the Bar by the

learned counsel for the parties, with the

specific understanding that it can be acted upon

by this Court.

7. The essential facts involved are not in

dispute.

8. It is admitted that the respondent met

with an accident and suffered injuries, as has

been recorded in Ext.A4 - Wound Certificate and

other medical documents on record.

9. It is also without contest that the

respondent had to go through several procedures

as part of his treatment; and that the Medical

Board constituted, has certified his whole body

disability to be 25%, as is evident from Ext.C1, MACA NO. 282 OF 2023

which also remains unimpeached.

10. As I have seen above, only two questions

have been raised by the appellant, namely, as to

whether the Tribunal has erred in granting "Loss

of Earning" of Rs.60,000/- to the respondent;

and whether it was right in having adopted the

percentile of 40 as "Future Prospects", added to

his notional monthly income. Of course, there is

also a faint contention against the quantum of

the notional income adopted.

11. As regards the "Loss of Earning", the

pleadings of the respondent on record would

clearly indicate that he was having a part-time

job in a catering business, though he does not

give any specifics of the same. This averment

has not been controverted by the Insurance

Company even in their counter pleadings; and

obviously, therefore, a balance will have to be

drawn between the rival positions, by this MACA NO. 282 OF 2023

Court.

12. Normally, it is true that when a student

is injured, notional income cannot be taken for

the purpose of "Loss of Earning". However, in

this case, the Tribunal has granted a

consolidated amount of Rs.60,000/- under the

head "Loss of Earning" to the respondent because

of his averment that he was also working while

pursuing his studies. In the absence of any

evidence to the contrary, I do not think that it

will be necessary for this Court to interfere

with the said findings in any manner,

particularly when the said amount is a

consolidated one and which appears to be very

reasonable, going by the nature of injuries

sustained by the respondent.

13. Coming to the notional income adopted,

the Tribunal has fixed it as being Rs.11,500/-,

which is in conformity with the standardization MACA NO. 282 OF 2023

adopted by the Hon'ble Supreme Court in

Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Ltd. [(2011) 13 SCC

236]. As per the ratio in this judgment, for a

person whose income is indeterminable in the

year 2017, it can be reckoned as Rs.11,000/-;

while the Tribunal has adopted Rs.11,500/-.

Since the respondent was pursuing "BBA Course",

certainly, going by various other judgments of

the Hon'ble Supreme Court, including in Rajani

v. Oriental Insurance Company Limited [2022 (5)

KLT OnLine 1012 (SC)], a robust view ought to be

taken;and I do not think that the learned

Tribunal has erred in fixing it to be

Rs.11,500/-, which is a mere five hundred more

than what is postulated in Ramachandrappa

(supra).

14. What remains, as far as the contentions

of the appellant, is whether the "Future MACA NO. 282 OF 2023

prospects" adopted is proper. As I have already

said above, going by Pappu Deo Yadav (supra)

and Meena Pawaia (supra), in the case of severe

disability, especially to the right hand of a

right handed student, "Future Prospects" can

certainly be added and ought to be. The

surviving dispute is only regarding the

percentile and I see that the Tribunal has

adopted 40%, however, without any justified

reason, but on the basis of an estimation. I

cannot blame the Tribunal for having done so

because, it had examined the petitioner

visually, when he was present before it, to find

that he could not fold his hand or move the same

below the knee. The aftermath of the accident

certainly is grave on the respondent, especially

because he was a student; and in that

perspective, perhaps, the Tribunal fixed the

percentile on a rough estimation. MACA NO. 282 OF 2023

15. However, Ext.C1 Certificate shows that

the respondent has sustained only 25% whole body

permanent disability. Obviously, therefore, the

functional disability ought to have been

considered, particularly with respect to the

immobility of the right hand of the respondent;

and in that view, I am of the opinion that it

would serve the interests of justice, if the

percentile of the future prospects is reduced to

35, rather than 40, as has now been adopted.

16. Before I close, I must answer the

further contention of Smt.Kochumol Koduvath,

that at least a small amount towards "Loss of

Marriage Prospects" ought to have been awarded

to the respondent.

17. I am afraid that this Court cannot

accede to this because, no such claim was ever MACA NO. 282 OF 2023

made before the Tribunal and it would not be

justified for me to award it at this stage,

particularly in an appeal filed by the Insurance

Company.

18. Further, there is not a whisper in any

of the pleadings or the documents to even

passingly show that the "marriage prospects" of

the respondent has been, in any manner, impeded;

and therefore, the contention impelled by him

can only be in the nature of a conjecture.

In the afore circumstances, I allow this

appeal partly, reducing the percentile of the

"Future Prospects" adopted by the Tribunal for

the purpose of assessment of compensation for

disability, to be 35%, instead of 40%.

Consequently, the quantum of compensation

would stand reduced to a total amount of

Rs.13,53,950/-, instead of Rs.13,85,000/- MACA NO. 282 OF 2023

awarded by the Tribunal.

In all other respects, the finding and

holdings of the Tribunal will stand confirmed.

Sd/-

                                  DEVAN RAMACHANDRAN
akv                                     JUDGE