Allowed

Nithin Maheswari v. National Insurance Company Limited

Kerala HC8 Dec 2020RP/534/2020

Case brief

AI extract

What is this about?

The Hon'ble High Court of Kerala allowed a review petition, correcting its own order that had upheld a 50% deduction for personal expenses in an injury compensation case. The Court distinguished death cases from injury cases, holding that deduction for personal expenses is unjustified for injured persons. Consequently, the notional income was enhanced by 50% for future prospects without any offset

What did the court decide?

The part of the prior judgment delegating the deduction of 50% personal expenses was deleted and substituted with a finding to fix notional income at 150% of actual income, increasing compensation und

Nithin Maheswari Vs National Insurance Company Limited — Motor Accident Claims | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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TUESDAY, THE 08TH DAY OF DECEMBER 2020/17TH AGRAHAYANA,1942 RP.No.534 OF 2020 IN MACA. 2066/2014

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AGAINST THE JUDGMENT DATED 13.07.2020 IN CO.No.200 OF 2014 IN MACA No.2066/2014 AGAINST OP(MV) No.1234/2011 PRL. MACT, KOZHIKODE.

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REVIEW PETITIONER/CROSS OBJECTOR/RESPONDENT NO.1:

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NITHIN MAHESWARI, AGED 36 YEARS S/O BHUVANESH MAHESWARI, RESIDING AT 989/C/9, GOWINDPURI, KALKAJI, DELHI.

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BY ADV. A.V.M.SALAHUDDEEN

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RESPONDENTS/RESPONDENTS/APPELLANT AND RESPONDENT NO.2:

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1 NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE-673001.

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2 DR.PRABHAKARAN, S/O.KELU, RESIDING AT KAVIL PARAMBU HOUSE, HOUSE NO.31/75 A, PALAKKOTTUVAYAL ROAD, P.O.MAYANAD, MEDICAL COLLEGE, KOZHIKODE-673008.

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R1 BY ADV.LAL GEORGE, SC, NATIONAL INSURANCE COMPANY LIMITED R2 BY ADV. P.M HARIS

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 08.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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N. NAGARESH, J.

R. P. No.534 of 2020

in C.O. No.200/2014 in MACA No.2066/2014

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Dated this the 8^th day of December, 2020

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O R D E R

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~ ~ ~ ~ ~ ~

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The 1^st respondent in MACA No.2066/2014 who is

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also the Cross Objector in C.O. No.200/2014, has filed this review petition against the judgment dated 13.07.2020 in the said MACA. The review petitioner is the petitioner in OP(MV) No.1234/2011 of the Principal Motor Accident Claims Tribunal, Kozhikode, from which the MACA arose.

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The MACT passed Award in the OP(MV) granting a compensation of ₹24,09,000/- to the review petitioner. The Insurer filed MACA and the review petitioner filed Cross Objection. This Court dismissed the MACA and granted additional compensation of ₹40,000/- to the Review Petitioner/Cross Objector. The said judgment is sought to be

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reviewed by the Cross Objector/Review Petitioner.

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The short ground for review is that while calculating compensation for loss of future earning power/disability, this Court deducted 50% of income towards personal expenses. In injury cases, such deduction is impermissible.

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The learned Standing Counsel for the 1^st respondent-Insurer resisted the review petition. The learned Standing Counsel argued that this Court found that the petitioner is entitled to 50% enhancement of income towards loss of future prospects and deduction of 50% towards personal expenses. Since the proposed enhancement and deduction is of the same percentage, this Court did not revise the notional income of the review petitioner. In fact, the review petitioner is not entitled to insist that while fixing his notional income, enhancement should be given towards loss of future prospects. According to the Standing Counsel for the 1^st respondent, allowances for loss of future prospects are made only for calculating compensation in

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death cases.

The Standing Counsel further argued that the Tribunal has granted compensation liberally and the compensation is much on a higher side. This Court enhanced the total compensation further. The functional disability of the injured was fixed at 66%. For this reason also, the deduction towards personal expenses is justified while fixing notional income.

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Heard learned counsel for the review petitioner and learned Standing Counsel for the 1^st respondent.

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This Court in the judgment in MACA, while agreeing with the Tribunal’s findings as to the monthly income of the review petitioner as ₹15,000/-, held as follows:-

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“It is seen that the Tribunal has not considered future prospects, while fixing the notional monthly income for the purpose of calculating disability compensation. Going by the judgments of the Apex Court in National Insurance Co. Ltd. v. Pranay Sethi and others [(2017) 16 SCC 680] and Rajesh and others v. Rajbir Singh and others [2013 (3) KLT 89], the 1^st respondent should be granted an addition of 50% towards future prospects. But, since the 1^st respondent was a bachelor at the time of the accident, going by the judgment in Sarla Verma and others v. Delhi Transport Corporation and another [(2009) 6 SCC 121], 50% of the income has to be

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deducted towards personal and living expenses of the 1^st respondent. The Tribunal has not deducted any amount towards personal expenses. Since the addition towards future prospects and deduction towards personal and living expenses, both stands at 50%, there is no requirement for changing the notional income fixed by the Tribunal.”

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Normally, deductions towards personal and living expenses are made while calculating the notional income of a person who died in the motor accident. Deductions are made towards personal and living expenses on the premises that had the deceased been alive, he would have expended some amount towards his personal expenses and only the remaining income would have been expended for the family. It is for this reason that such deductions are made.

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When a person survives a motor accident with injuries and disability, he would be spending amounts towards personal and living expenses during his life. Therefore, making deduction towards personal expenses for arriving at notional income of an injured person, would indeed result in injustice.

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As regards the argument of the Standing Counsel

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for the 1^st respondent that no enhancement need be made in the notional income of the review petitioner towards future prospects since future prospects are allowed only in death cases, this Court finds that the Hon'ble Apex Court has considered the issue in Pappu Deo Yadav v. Naresh Kumar and others [CDJ 2020 SC 727] and has granted enhancement towards future prospects, in a case of injury. Therefore, the argument that enhancement in notional income counting future prospects cannot be made in an injury case, cannot be accepted.

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In the Award, the Tribunal did not make any provision for future prospects of the injured. Going by the age and percentage of disability, the review petitioner was entitled to be compensated for loss of future prospects. However, this Court observed that even if 50% is enhanced towards future prospects, still when deduction is made for personal and living expenses, there would be in effect no change in the notional income of the petitioner. The fact that deduction towards personal expenses is not to be made in

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an injury case, was omitted to be noted by this Court and to that extent, this Court is of the opinion that a review of the judgment is warranted.

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Accordingly, the following part of paragraph 15

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namely,

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“But, since the 1^st respondent was a bachelor at the time of the accident, going by the judgment in Sarla Verma and others v. Delhi Transport Corporation and another [(2009) 6 SCC 121], 50% of the income has to be deducted towards personal and living expenses of the 1st respondent. The Tribunal has not deducted any amount towards personal expenses. Since the addition towards future prospects and deduction towards personal and living expenses, both stands at 50%, there is no requirement for changing the notional income fixed by the Tribunal.”,

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would stand deleted and in its place, the following findings

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should be substituted:-

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Accordingly, the notional income of the petitioner for calculating compensation for loss of future earning power should be fixed as ₹22,500/(₹15,000/- + 50% thereof). The petitioner will therefore be eligible for a compensation of ₹30,29,400/- (₹2,70,000 x 17 x 66/100) under the head. The Tribunal has awarded ₹20,19,600/under this head. The 1^st respondent therefore, would be entitled to an additional compensation of ₹10,09,800/- under the head compensation for loss of future earning power.

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