Partly allowed

National Insurance Compant Limitted, v. Kevin Kuriakose

Kerala HC3 Feb 2023MACA/282/2023

Case brief

AI extract

What is this about?

The High Court allowed aMotor Accidents Claims Appeal partly, reducing the 'future prospects' percentage from 40% to 35% for a student with 25% disability, while affirming the award for loss of earning. The claim for loss of marriage prospects was dismissed due to lack of prior pleading.

What did the court decide?

Appeal partly allowed; 40% future prospects reduced to 35%; total compensation reduced to Rs.13,53,950/-; other findings confirmed.

National Insurance Compant Limitted, Vs Kevin Kuriakose — Motor Accident Claims | Kerala HC (2023)

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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 DEVAN RAMACHANDRAN

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FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944

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MACA NO. 282 OF 2023

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AGAINST THE AWARD DATED 22.09.2022 IN OP(MV) 176/2018 IN THE ADDL.
DISTRICT MOTOR ACCIDENTS CLAIMS TRIBUNAL – IV, ERNAKULAM.

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APPELLANT/3RD RESPONDENT:

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NATIONAL INSURANCE COMPANY LIMITED,

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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.)

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RESPONDENT/CLAIMANT:

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

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SMT.KOCHUMOL KODUVATH-R

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA NO. 282 OF 2023

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-2-

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JUDGMENT

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The National Insurance Company Limited
(‘Insurance Company’ for short), impugns the

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Award of the Additional Motor Accidents Claims
Tribunal - IV, Ernakulam (‘Tribunal’, for short)
in OP(MV)No.176/2018 filed by the 1st respondent

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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.

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2.Sri.Mathews Jacob – learned Senior

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Counsel, instructed by Smt.Preethy R.Nair,

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appearing for the appellant, argued that when it
isunequivocallyadmittedbythe

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respondent/claimant, even in his evidence, that

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he was a student, aged 20 years at the relevant

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time, there could have been no “Loss of

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MACA NO. 282 OF 2023

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Earning”; and therefore, that the Tribunal has
erred in awarding Rs.60,000/- under that head.

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 3.Sri.Mathews Jacob then pointed out that

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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.

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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

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MACA NO. 282 OF 2023

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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

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purpose, can never be found to be
disproportionate or excessive.

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5.Smt.Kochumol Koduvath then added that,

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even though it has not been so claimed, the
“marriage prospects” of her client would be now
severely prejudiced on account of the injury;

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and therefore, that the Tribunal ought to have
granted compensation under that head as well.
She thus prayed that this Appeal be dismissed.

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MACA NO. 282 OF 2023

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6.I have considered the afore submissions

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and have tested them on the touchstone of the
documents marked in evidence – copies of which

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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.

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7.The essential facts involved are not in

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dispute.

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8. It is admitted that the respondent met

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with an accident and suffered injuries, as has
been recorded in Ext.A4 - Wound Certificate and
other medical documents on record.

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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,

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MACA NO. 282 OF 2023

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which also remains unimpeached.

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10.As I have seen above, only two questions

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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.

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11.As regards the “Loss of Earning”, the

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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

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MACA NO. 282 OF 2023

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Court.

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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

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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

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sustained by the respondent.

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13.Coming to the notional income adopted,

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

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which is in conformity with the standardization

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MACA NO. 282 OF 2023

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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

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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

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

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than what is postulated inRamachandrappa
(supra).

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14.What remains, as far as the contentions

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of the appellant, is whether the “Future

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MACA NO. 282 OF 2023

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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

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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

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below the knee. The aftermath of the accident
certainly is grave on the respondent, especially

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because he was a student; and in that
perspective, perhaps, the Tribunal fixed the

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percentile on a rough estimation.

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MACA NO. 282 OF 2023

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-10-

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15.However, Ext.C1 Certificate shows that

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the respondent has sustained only 25% whole body
permanent disability. Obviously, therefore, the

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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.

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16.Before I close, I must answer the

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further contention of Smt.Kochumol Koduvath,

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that at least a small amount towards “Loss of
Marriage Prospects” ought to have been awarded
to the respondent.

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17.I am afraid that this Court cannot

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accede to this because, no such claim was ever

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MACA NO. 282 OF 2023

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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.

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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.

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In the afore circumstances, I allow this
appeal partly, reducing the percentile of the
“Future Prospects” adopted by the Tribunal for

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the purpose of assessment of compensation for
disability, to be 35%, instead of 40%.

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Consequently, the quantum of compensation

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would stand reduced to a total amount of
Rs.13,53,950/-, instead of Rs.13,85,000/-

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MACA NO. 282 OF 2023

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awarded by the Tribunal.

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In all other respects, the finding and

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holdings of the Tribunal will stand confirmed.

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Sd/-

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DEVAN RAMACHANDRAN

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akv

¶102

JUDGE

National Insurance Compant Limitted, v. Kevin Kuriakose

Case brief

What is this about?

What did the court decide?

National Insurance Compant Limitted, v. Kevin Kuriakose

Case brief

What is this about?

What did the court decide?

What the court decided

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