Kerala High Court
Prajeesh Kumar vs Dil Khush on 30 September, 2024
2024:KER:73316
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
MACA NO. 194 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 21.10.2016 IN OPMV
NO.297 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA
APPELLANT/PETITIONER IN O.P MV 297/2013:
PRAJEESH KUMAR
AGED 36 YEARS
S/O.BALAN, KAREMMAL HOUSE, M.M.PARAMBU POST,
UNNIKULAM VIA, KOYILANDY TALUK, KOZHIKODE 673 574.
BY ADV LUIZ GODWIN D COUTH
RESPONDENTS/RESPONDENTS IN O.P MV 297/2013:
1 DIL KHUSH
S/O.UNNI NAIR, AGED 28 YEARS, ULLAS HOUSE, KAVIL
POST, PLLIYATHKUNI, NADUVANNUR, KAVUNTHARA,
KOZHIKODE, PIN 673 614.
2 THE NEW INDIA ASSURANCE COMPANY LTD.
VATAKARA BRANCH (761301), AL-MUBARAK BUILDING,
EDODI, VATAKARA, KERALA 673101.
BY ADV SRI.RAJIT
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
30.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.194/2021
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EASWARAN S., J
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MACA No.194 of 2021
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Dated this the 30th day of September, 2024
JUDGMENT
The claimant has come up with this appeal aggrieved by
the decisions in the grant of compensation.
2. Facts in brief are as follows: on 28.10.2012, the
appellant was travelling as a pillion rider in motorcycle bearing
Registration No.KL-56-F-3454, which was driven by the 1 st
respondent from Nanminda to Balussery through Kozhikode -
Balussery public road, due to the rash and negligent driving of
the 1st respondent, the accident occurred and the claimant was
thrown off the road and sustained grievous injuries. He was
taken to K.K. Hospital, Balussery and thereafter referred to
Medical College Hospital, Kozhikode for treatment.
3. The Insurance Company appeared and admitted the
policy, however, it is contended that the accident was due to
the negligence of the petitioner. The age, occupation and
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monthly income of the petitioner was disputed. The
appellant/claimant contended that he was working as a
Recovery Trainee having a monthly income of Rs.12,000/-.
However, no evidence was produced by the appellant/claimant
and hence the Tribunal proceeded to fix the notional income of
the claimant at Rs.6,000/- and added 50% future prospects and
proceeded to consider the claim for compensation. The
disability of the claimant was assessed by the Medical Board
and Ext.C1 - Disability Certificate was issued by the Medical
College Hospital, Kottayam. Based on the percentage of
disability, the Tribunal proceeded to assess the claim for
compensation as follows:
The compensation Amounts Amount Basis/vital
claimed under claimed allowed details in a
different heads nutshell
1 Loss of earnings 48,000/- 72,000/- 6,000x12
2 Transport to hospital 50,000/- 1,750/-
3 Medical bill as per A7 2,80,300/- 2,99,033/-
series
4 Future treatment 4,00,000/- 1,00,000/-
5 Hospital expenses for 3,24,000/- 1,42,800/- 700x204
204 days as per A3, A4,
A5 and A6.
6 Pain & suffering 2,00,000/- 75,000/-
7 Loss of amenities 10,000/- 50,000/-
8 Compensation for loss of 10,00,000/- 15,55,200/- (6000+3000)x1
earning power due to 2x16x90%
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90% disability as per C1
with loss in future
prospects at 50%
9 Loss of marriage 1,00,000/-
prospects
1 Loss of expecation and 1,00,000/-
0 enjoyment of life
Total 24,95,783/- Rounded to
Rs.24,95,790/-
4. Aggrieved by the fixing of the notional income at
Rs.6,000/- and also in not granting sufficient compensation
under the heads future treatment and pain and suffering, the
appellant has approached this Court in the present appeal.
5. Heard Sri.Luiz Godwin D'couth - learned counsel
appearing for the appellant and Sri.Rajit - learned Standing
Counsel appearing for the New India Assurance Company Ltd.
6. The learned counsel for the appellant submitted
that, going by the principles laid down by the Hon'ble Supreme
Court in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the
Tribunal ought to have taken the notional income at Rs.8,500/-,
since the accident occurred in the years 2012. Since there was
serious injuries, the Tribunal rightly took the claim for future
prospects. The learned counsel for the appellant further
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pointed out that, as per the certificate issued by the K.K
Hospital, Balussery on 27.02.2018, the appellant requires
Rs.5,000/- each month for the rehabilitation treatment.
Therefore, according to the learned counsel for the appellant,
the Tribunal should have granted more compensation towards
the future treatment.
7. On the other hand, the learned Standing Counsel
appearing for the Insurance Company submitted that no
evidence was adduced by the claimant to substantiate the
claim that he was drawing a monthly salary of Rs.12,000/- and
therefore, the Tribunal rightly fixed the notional income at
Rs.6,000/-. In so far as the claim for future treatment is
concerned, it is contended that the claimant failed to adduce
further evidence to support the certificate issued by the K.K
Hospital, Balussery and therefore, prayed that the appeal be
dismissed.
8. I have considered the rival submissions raised
across the Bar.
9. Prima facie, this Court is of the considered view
that, going by the principles laid down by the Hon'ble Supreme
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Court in Ramachandrappa (supra), the Tribunal ought to have
fixed the notional income at Rs.8,500/- instead of Rs.6,000/-. It
is pertinent to note that the Tribunal had taken 50% as future
prospects which impermissible under law. Going by the
principles laid down by the Hon'ble Supreme Court in National
Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662
(SC)], the appellant is entitled only for a future prospects of
40%. Thus, taking the notional income and adding 40% future
prospects, though it is a case of injury, considering the
disability fixed by the Medical Board, this Court is of the
considered view that the appellant is entitled for 40% of the
future prospects. Hence, the notional income of the appellant
is fixed at Rs.11,900/-.
10. Coming to the next question of fixing the
percentage of disability, this Court is of the considered view
that no doubt the Medical Board has certified 90% disability in
case of the appellant. It has come out in evidence that he was
working as a recovery trainee with KVR Motors. Ext.A8 is the
Experience Certificate dated 21.07.2011 produced by the
appellant/claimant. In the absence of any contra evidence on
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the side of the Insurance Company, this Court is of the view
that the avocation of the appellant being, undisputed, the
nature of disability has certainly affected his job. Hence, this
Court is of the view that it is only appropriate that the
functional disability of the appellant be fixed at 100%. This
Court is fortified in this view in the light of the judgment of the
Hon'ble Supreme Court in Rekha Jain v. National Insurance
Company Ltd. [2013 KHC 4600].
11. Coming to the question as to whether the appellant
is entitled for any future treatment, in the light of the
certificate issued by K.K Hospital, Balussery, which is placed
before this Court for perusal, it is seen that the hospital has
certified that an amount of Rs.5,000/- is required for treatment
for each month. However, it has to be noticed that the said
certificate was not part of the documents produced before the
Motor Accidents Claims Tribunal, hence the same cannot be
taken as a basis for awarding the compensation under the
head future treatment. It is true that for the future treatment
the Tribunal had awarded Rs.1 lakh. However, the mere fact
that the certificate which is shown before this Court has not
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been produced before the Tribual should not deter this Court to
grant just and fair compensation for future treatment of the
claimant, especially in the light of the serious injuries which
was suffered by the claimant and which is evident from Ext.C1.
The Medical Board after examining the appellant/claimant took
notice of the injuries suffered by him and included the injuries
suffered by the claimant under the category 'severe'. Hence,
this Court is of the view that a reasonable amount could be
awarded for the future treatment, which is fixed at
Rs.1,50,000/- over and above Rs.1 lakh granted by the
Tribunal.
12. In so far as the pain and suffering is concerned, this
Court is of the considered view that an amount of Rs.50,000/-
to be enhanced as compensation.
In the result, the appeal is allowed. The enhanced
compensation for which the appellant is entitled is as follows:
Heads Amount Total Enhanced
awarded by the compensation compensation
Tribunal awarded in
appeal
Loss of earnings 72,000 1,42,800 70,800
(11900x12) (142800-72000)
Future treatment 1,00,000 2,50,000 1,50,000
Pain and 75,000 1,25,000 50,000
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suffering
Compensation for 15,55,200 22,84,800 7,29,600
Loss of earning (11900x12x16x (2284800-
power 100%) 1555200)
Total enhanced compensation 10,00,400/-
Accordingly, the appellant/claimant is awarded an
additional compensation of Rs.10,00,400/- (Rupees ten lakhs
four hundred only) over and above the compensation awarded
by the Tribunal with interest @ 9% per annum from the date of
petition till realization with proportionate costs. The Insurance
Company is directed to deposit the aforesaid amount within a
period of 30 days from the date of receipt of a copy of this
judgment. The claimant shall furnish the details of the bank
account to the Insurance Company for transfer of the amount.
While, calculating interest, it is ordered that the appellant will
not be entitled for interest for a period of 1426 days, which
represents the period of delay as ordered by this Court in its
order dated 04.03.2024.
The appeal is ordered accordingly. No order as to costs.
Sd/-
EASWARAN S.
JUDGE
ACR
