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2025 DIGILAW 271 (KER)

AKASH S/o. BINU v. NATIONAL INSURANCE CO. LTD.

2025-02-14

EASWARAN S.

body2025
JUDGMENT : The claimant in OP(MV) No.1462/2017 on the files of Motor Accidents Claims Tribunal, Neyyattinkara is the appellant herein. 2. The facts for the disposal of the appeal are as follows:- On 14.10.2017 at about 9.45 a.m., while the claimant was riding his motorcycle bearing registration No.KL-01/AR-5501 from Panachamoodu to Vellarada and when he reached near panchayat office, Panachamoodu, a tipper lorry bearing registration No.KL- 17/P-9717 came from the opposite direction hit against the motorcycle of the claimant. Immediately, the claimant was taken to the Medical College Hospital, Karakkonam and thereafter was referred to Medical College Hospital, Thiruvananthapuram, where he was admitted and treated. The claimant contended that he is a coolie worker and was earning a sum of Rs.15,000/- per month. In support of his contentions, the appellant/claimant produced Exts.A1 to A55 documents. On behalf of the insurance company, copies of the driving licence and insurance policy were marked as Exts.B1 and B2, respectively. No oral evidence was adduced on the side of either parties. In the light of the injuries suffered by the appellant/claimant, the claim for permanent disability was raised based on Ext.A37 certificate of disability issued from General Hospital, Thiruvananthapuram. 3. The tribunal, on appreciation of evidence, found that the claimant could not adduce evidence to prove his income and therefore proceeded to fix the notional income at Rs.9,000/- per month and granted the following compensation: Sl. No. Head of claim Amount claimed (In Rs.) Amount allowed (In Rs.) Basic vital details in a nut shell 1 Loss of earnings 15,00,000/- 90,000/- 9,000 x 10 months 2 Transportation expenses 40,000/- 15,000/- 3 Extra nourishment 50,000/- 30,000/- 4 Damage to clothing 5,000/- 3,000/- 5 Medical expenses 5,00,000/- 80,000/- 6 Bystander' expenses and future bystander's expenses 50,000/- 5,00,000/- 42,000/- 7 Pain and sufferings 10,00,000/ - 2,00,000/- 8 Compensation for loss of future earning power 7,00,000/- 16,32,960/- 12,600x12x18x 60/100 9 Loss of amenities and enjoyment in life 7,00,000/- 2,00,000/- 10 Permanent disability 15,00,000/- -- 11 Compensation for disfiguration 5,00,000/- 1,00,000/- 12 Future prospects 5,00,000/- -- Total 23,92,960/- (Rounded to Rs.23,93,000/-) Rs.23,63,000/- with 8% interest per annum from 26.12.2017 till realisation 4. Aggrieved by the insufficiency in the grant of compensation, the claimant has approached this Court with the present appeal. 5. Heard Sri.Rinu S.Aswan, the learned counsel appearing for the appellant/claimant, and Sri.Sebastian Varghese, learned counsel appearing for the insurance company. 6. Aggrieved by the insufficiency in the grant of compensation, the claimant has approached this Court with the present appeal. 5. Heard Sri.Rinu S.Aswan, the learned counsel appearing for the appellant/claimant, and Sri.Sebastian Varghese, learned counsel appearing for the insurance company. 6. On consideration of the rival submissions raised across the bar, this Court is of the considered view that the appellant is entitled to succeed for the following reasons: 1. The accident occurred on 14.10.2017. The tribunal proceeded to fix the notional income of the claimant at Rs.9,000/-, as though he is a coolie worker, in the absence of any documentary evidence to support the income claimed in the claim petition. A reading of the award impugned in the appeal also disclosed the same. But, however, the said finding is contrary to the evidence on record. A reading of the FIS, annexed along with Ext.A4 FIR, shows that the claimant himself has disclosed that he is an ITI diploma holder and was going for wiring works. Therefore, while fixing the income, the avocation of the claimant has a serious bearing which will ultimately affect the quantum of the compensation granted under the head permanent disability and, therefore, this Court finds that the finding rendered by the tribunal in this regard is unsustainable and liable to be interfered with. 2. In Angad Tiwari v. National Insurance Company Ltd. [Civil Appeal No.10950/2024 dated 01.10.2024 : 2024 KHC 8590], the Hon'ble Supreme Court held that while fixing the national income, the court shall not fix the income below the minimum wage fixed under the Minimum Wages Act. 3. By G.O.(P) No.56/2017/Fin dated 28.04.2017, the State of Kerala had fixed the minimum wage of an ITI Diploma holder at Rs.18,900/-. Therefore, this Court is of the considered view that the notional income of the claimant has to be fixed at Rs.18,900/- and by adding 40% towards future prospectus, the amount would come to Rs.26,460/- per month. 4. The claimant had produced Ext.A37 disability certificate from Government General Hospital, Thiruvananthapuram, which reveals that the claimant had 90% permanent disability. A perusal of the award shows that the claimant was examined by the tribunal and found that the claimant cannot stand or walk on his own. Despite these overwhelming facts, the tribunal chose to reduce the percentage of disability to 60%. 5. A perusal of the award shows that the claimant was examined by the tribunal and found that the claimant cannot stand or walk on his own. Despite these overwhelming facts, the tribunal chose to reduce the percentage of disability to 60%. 5. In Aabid Khan v. Dinesh & Others [ (2024) 6 SCC 149 ] the Supreme Court held that the tribunals/courts cannot reduce the percentage of disability without assigning cogent reasons. 6. In Prakash Chand Sharma v. Rambabu Saini & Ors [Civil Appeal No.2254/2025 arising out of SLP(C) No.3066/2024 decided on 10.2.2025], the Hon'ble Supreme Court held that once a disability board has fixed the percentage of disability, tribunals/courts cannot reduce the same without ordering re-assessment. Therefore, it becomes inevitable for this Court to find that the tribunal erred egregiously in reducing the percentage of disability to 60%. 7. Having said so, this Court has to consider the contention of the learned counsel for the claimant that the functional disability of the claimant has to be increased. In Syed Sadiq etc. v. Divisional Manager, United India Insurance Company Ltd. [ 2014(2) SCC 735 ] , the Apex Court had laid down the principles regarding the enhancement of the permanent disability suffered by the claimants on account of the injuries sustained by them in a motor accident. The increase in the percentage of disability to 100% will have a definite bearing on the other heads of compensation as well. Despite assessing the present medical condition of the claimant in person, the tribunal was not justified in reducing the percentage of disability. It is pertinent to mention that the tribunal reduced the percentage of disability despite finding that the claimant cannot sit or walk without the help of others. Thus, there cannot be any doubt that the claimant’s avocation as a wireman will be definitely affected. Hence, this Court is of the view that the tribunal ought to have increased the disability and made it 100%. For the afore-stated reasons, this Court finds that the appellant/claimant is entitled to have his functional disability assessed at 100% and, accordingly, this Court fixes the percentage of disability at 100%. 8. In Kajal v. Jagdish Chand and Others [2020 KHC 6114], the Hon'ble Supreme Court considered the parameters in granting compensation in the case of a 100% disabled person. For the afore-stated reasons, this Court finds that the appellant/claimant is entitled to have his functional disability assessed at 100% and, accordingly, this Court fixes the percentage of disability at 100%. 8. In Kajal v. Jagdish Chand and Others [2020 KHC 6114], the Hon'ble Supreme Court considered the parameters in granting compensation in the case of a 100% disabled person. Resultantly, the appellant/claimant is entitled to compensation under the various heads as formulated by the Apex Court in Kajal (supra). The Court will now proceed to consider the fixation of the compensation in accordance with the principles laid down by the Supreme Court in Kajal (supra). Attendant Charges 9. The Supreme Court in Kajal (supra) fixed the attendant charges by applying the multiplier system and taking the multiplicand on the basis of the minimum wage prescribed under the relevant notification. These principles were reiterated by the Supreme Court in Baby Sakshi Greola v. Manzoor Ahmad Simon [2024 KHC Online 6694] Since this Court has taken the minimum wage as Rs.18,900/-, the appellant/claimant is entitled for attendant charges for two persons fixed in terms of the minimum wage. Thus, the attendant charge is fixed applying the multiplier system as follows: 18900x12x18x= Rs.40,82,400/- Bystander expenses 10. The tribunal had granted bystander expenses calculated at Rs.500/- per day for 105 days' of patient treatment. Considering the fact that the accident occurred in 2017, this Court deems it appropriate to increase the said amount to Rs.750/- per day. Thus, an amount of Rs.36,750/- [78,750- 42,000] is granted additionally as bystander expenses for the inpatient treatment. Pain and sufferings 11.In Kajal (supra), the Supreme Court, considering the trauma undergone by a child bedridden for life, fixed a consolidated amount of Rs.10,00,000/- under the head pain and sufferings. This Court sees no reason as to why the same reasoning cannot be adopted by this Court. The claimant is an ITI diploma holder and due to his present conditions, as noticed by the tribunal, he is certainly disabled from doing any work and therefore, will be bedridden for life and cannot survive without the assistance of a third person. Considering these aspects, this Court is of the considered view that the claimant is entitled for an amount of Rs.10,00,000/- towards pain and sufferings. Hence, an additional amount of Rs.8,00,000/- [10,00,000-2,00,000] is granted under the said head. Considering these aspects, this Court is of the considered view that the claimant is entitled for an amount of Rs.10,00,000/- towards pain and sufferings. Hence, an additional amount of Rs.8,00,000/- [10,00,000-2,00,000] is granted under the said head. Loss of marriage prospects 12.The tribunal chose not to grant any compensation under the head loss of marriage prospects. Here again, this Court has to fix the claim under the head loss of marriage prospects in tune with the principles laid down by the Supreme Court in Kajal (supra), and thus, a sum of Rs.2,00,000/ - is granted under the said head. Future medical treatment 13.In the light of the injuries suffered by the claimant, it is obvious that the appellant/claimant will require future treatment. Though normally future treatment is granted only subject to availability of documentary evidence, in the present case, applying the principle laid down by the Supreme Court in Kajal (supra), a sum of Rs.2,00,000/- is awarded towards future treatment expenses. Loss of amenities 14.Though the tribunal awarded a sum of Rs.2,00,000/- under the head loss of amenities and enjoyment in life, this Court is of the considered view that the same has to be increased to Rs.3,00,000/- and therefore, the claimant would be entitled for the balance amount of Rs.1,00,000 /- under the said head. Permanent disability/loss of future earnings 15.In view of the fact that the income of the claimant is re-assessed at Rs.18,900/- per month and by adding 40% to the same towards future prospects, the notional income of the appellant/claimant is fixed at Rs.26,460/-. Permanent disability has to be accordingly re-worked. Thus, the compensation towards permanent disability is re-worked as follows: 26460x12x18=57,15,360-16,32,960= 40,82,400/- 7. In the result, the appeal is allowed. The award of the tribunal is modified and the enhanced compensation is awarded as follows : Loss of earnings Rs.99,000/- (18900x10-90,000) Attendant charges Rs.40,82,400/- (18900x12x18) Permanent disability Rs.40,82,400/- (26,460x12x18=57,15,360-16,32,960) Bystander charges Rs.36,750/- [750x105=78,750-42,000] Loss of Marriage prospects Rs.2,00,000/- Loss of amenities Rs.1,00,000/- [3,00,000-2,00,000] Future treatment Rs.2,00,000/- Dietary expenses Rs.2,00,000/- Pain and Sufferings 8,00,000/- - [10,00,000-2,00,000] Total Rs. 98,00,550/- The claimant is entitled to an additional compensation of Rs.98,00,550 /- (Rupees Ninety Eight Lakhs Five Hundred and Fifty only). The aforesaid amount shall carry interest @ 8% per annum from 26.12.2017 till the date of realisation, with proportionate costs on the enhanced amount. 98,00,550/- The claimant is entitled to an additional compensation of Rs.98,00,550 /- (Rupees Ninety Eight Lakhs Five Hundred and Fifty only). The aforesaid amount shall carry interest @ 8% per annum from 26.12.2017 till the date of realisation, with proportionate costs on the enhanced amount. The insurance company shall deposit the said amount within a period of two months from the date of receipt of a copy of this judgment. Ordered accordingly.