Annie M.P. v. M.S. Abdul Salam, A.M. Johnson, N.K. Vinod and The National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **MACA.No.427 OF 2010** **AGAINST THE AWARD IN OPMV 2248/2002 DATED 02-09-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** **ANNIE M.P W/O.SRI.V.P.MICHAEL, M.I.G.89, GCDA COLONY,, SURABHI NAGAR, KAKKANADU P.O., THRIKKAKARA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P.** ## **RESPONDENT/RESPONDENTS:** **1 M.S.ABDUL SALAM B.M.C. P.O., THRIKKAKARA, COCHIN-682 021. 2 A.M.JOHNSON SO.MANI KURISINKAL HOUSE MURINJAPUZHA KARA, PERUVANTHANAM VILLAGE,, PIN 685532. 3 N.K.VINOD SO.KESAVAN CHAKKALAPARAMBIL HOUSE, KUSUMAGIRI, KAKKANADU P.O.,, THRIKKAKARA VILLAGE. 4 THE NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, ERNAKULAM, COCHIN 682 016. R1 BY ADV. SMT.SARAH SALVY** ## **OTHER PRESENT:** **SMT.SARAH SALVY FOR R4** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 0303-2021, THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.427 OF 2010** **2** **P.V.KUNHIKRISHNAN, J ----------------------------------------------M.A.C.A. No.427 of 2010 -------------------------------------Dated this the 5[th] day of March, 2021** ## **JUDGMENT** The appellant is the injured/claimant in O.P.M.V. No.2248/2002 on the file of the Motor Accidents Claims Tribunal, Ernakulam. It is a claim petition filed under Sec. 166 of the Motor Vehicles act. 2. The short facts are like this : The appellant was working as a High school Asst. in St.Mary’s G.H.S., Ernakulam. On 6.6.2002 at about 4.30 pm, she was boarding a stage carriage owned by the 1[st] respondent, driven by 3[rd] respondent and insured with 4[th] respondent. Even before she could settle down in the bus, the driver negligently moved forward the bus without getting any signal from the 2[nd] respondent-conductor of the bus. As a result, appellant fell down from the foot board of the bus and sustained quadriplegia and other serious bodily injuries. The appellant was rushed to a nearby hospital for treatment where she had to remain for a total number of 114 days. Thereafter, she underwent Ayurvedic and traditional system of treatment. On account of the injuries sustained in **MACA.No.427 OF 2010** **3** the accident, the appellant was not able to pursue her teaching profession or even attend her daily pursuits. Service of an attendant round the clock also became inevitable. The appellant was constrained to appoint housemaids to look after the household works. Her sensation below neck is impaired and she has to depend on others on anything and everything. The monthly earning of the appellant was initially short in the claim petition as Rs.7,620/- and subsequently enhanced to Rs.8,534/- by way of amendment. Therefore, the total claim was also enhanced to Rs.20,00,000 from Rs.10,00,000/- 3. To substantiate the case, Exts. PW1 to PW6 were examined on the side of the claimant. Exts.A1 to A31 were also marked. Ext.X1 is the service book of the appellant. After going through the evidence and the documents, the Tribunal awarded a total compensation of Rs.9,35,000/-. Aggrieved by the quantum of compensation, this appeal is filed. 4. Heard counsel for the appellant and the counsel for the 4[th] respondent. 5. The counsel for the appellant submitted that the appellant is now completely laid up. The counsel submitted that her disability is almost 100%. She is practically bed ridden and could not even attend **MACA.No.427 OF 2010** **4** routine works on account of immovability of lower limbs. She had to suffer immeasurable pain and trauma throughout and her future life is miserable. She is continuing treatment and there is no chance for recovery. According to the counsel, the appellant require special diet, wheel chair, full time attendant and with medication. The counsel submitted that the appellant was referred to Medical Board pending the claim petition for the assessment of disability. Ext.A22 is the certificate issued by the Medical Board. The Medical Board certified that there is total permanent disability due to paralysis of upper and lower limbs to the extent of 100%. The counsel submitted that the compensation granted by the Tribunal is inadequate. 6. When this appeal came up for consideration on 3.3.2021, I requested the counsel for the 4[th] respondent to discuss with the Insurance Company and to give a suggestion about the enhancement of the compensation as far as the disability of the appellant is concerned, considering the 100% disability shown by the Medical Board. The Tribunal awarded only an amount of Rs.4,90,000/-. The counsel for the 4[th] respondent discussed with the officers of the 4[th] respondent and fairly submitted that they will adopt split multiplier method and a total compensation of Rs. 13,20,000/- can be given. I **MACA.No.427 OF 2010** **5** appreciate their stand for taking such a decision in the facts and circumstances of the case. The counsel for the appellant also readily accepted the same. Therefore, the disability compensation can be enhanced in the following manner : – Total Compensation Rs.13,20,000/Amount already granted – Rs,4,90,000/Balanced to be paid – Rs.8,30,000/- 7. Thereafter, the counsel for the appellant submitted that the Tribunal awarded only an amount of Rs.1,00,000/- for attendant’s expenses. The counsel relied the judgment of the Apex Court in _**Kajal v. Jagdish Chand and others**_ [2020 (1) KLT 743] in which a 15 year old girl was given attendant’s charges for a period of 44 years taking Rs.10,000/- per month. The relevant portion of the Apex Court judgment is extracted hereunder : “23. The attendant charges have been awarded by the High Court @ Rs.2,500/- per month for 44 years, which works out to Rs.13,20,000/-. Unfortunately, this system is not a proper system. Multiplier system is used to balance out various factors. When compensation is awarded in lump sum, various factors are taken into consideration. When compensation is paid in lump sum, this Court has always followed the multiplier system. The multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges etc. This system was recognized by this Court in Gobald Motor Service Ltd v. R.M.K. Veluswami, AIR 1962 **MACA.No.427 OF 2010** **6** SC 1 :: 1961 ICO 377. The multiplier system factors in the inflation rate, the rate of interest payable on the lump sum award, longevity of the claimant, and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognized as the most realistic and reasonable method. It ensures better justice between the parties and thus results in award of 'just compensation' within the meaning of the Act. 24. It would be apposite at this stage to refer to the observation of Lord Reid in Taylor v. O'Connor (1971 AC 115): "Damages to make good the loss of dependency over a period of years must be awarded as a lump sum and that sum is generally calculated by applying a multiplier to the amount of one year's dependency. That is a perfectly good method in the ordinary case but it conceals the fact that there are two quite separate matters involved, the present value of the series of future payments, and the discounting of that present value to allow for the fact that for one reason or another the person receiving the damages might never have enjoyed the whole of the benefit of the dependency. It is quite unnecessary in the ordinary case to deal with these matters separately. Judges and counsel have a wealth of experience which is an adequate guide to the selection of the multiplier and any expert evidence is rightly discouraged. But in a case where the facts are special, I think, that these matters must have separate consideration if even rough justice is to be done and expert evidence may be valuable or even almost essential. The special factor in the present case is the incidence of Income Tax and, it may be, surtax.” 25. This Court has reaffirmed the multiplier method in various cases like Municipal Corporation of Delhi v. Subhagwati and Ors. (1966 ACJ 57), U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors. (1996 (4) SCC 362), Sandeep Khanduja v. Atul Dande and Ors. (2017 (3) SCC 351). This Court has also recognised that Schedule II of the Act can be used as a guide for the multiplier to be applied in each case. Keeping the claimant's age in mind, the multiplier in this case should be 18 as opposed to 44 taken by the High Court. **MACA.No.427 OF 2010** **7** 26. Having held so, we are clearly of the view that the basic amount taken for determining attendant charges is very much on the lower side. We must remember that this little girl is severely suffering from incontinence meaning that she does not have control over her bodily functions like passing urine and faeces. As she grows older, she will not be able to handle her periods. She requires an attendant virtually 24 hours a day. She requires an attendant who though may not be medically trained but must be capable of handling a child who is bed ridden. She would require an attendant who would ensure that she does not suffer from bed sores. The claimant has placed before us a notification of the State of Haryana of the year 2010, wherein the wages for skilled labourer is Rs.4846/- per month. We, therefore, assess the cost of one attendant at Rs.5,000/-and she will require two attendants which works out to Rs.10,000/- per month, which comes to Rs.1,20,000/per annum, and using the multiplier of 18 it works out to Rs.21,60,000/for attendant charges for her entire life. This takes care of all the pecuniary damages.” 8. In this case, the appellant is aged 47 years at the time of accident. Since a girl child aged 15 was given attendant’s expenses by taking multiplier of 18, I think by applying the principle laid down by the Apex Court in the above judgment, this Court can safely give attendant’s expenses to the appellant by taking the multiplier of 13. Considering the age of the appellant, multiplier 13 will be an apt one in the light of the judgment of the Apex Court in _**Sarla Verma & Ors.v.Delhi Transport Corporation & Anr.**_ [(2009) 6 SCC 121].The Apex Court assessed the cost of one attendant as Rs.5,000/-. In the **MACA.No.427 OF 2010** **8** facts and circumstances of that case, the Apex Court found that the presence of two attendants are necessary. In the facts and circumstances of this case also, I feel that two attendants are necessary to meet the day to day affairs of the appellant in this case. She also requires attendants virtually 24 hours a day. If that is the case, the appellant is entitled expenses for attendants in the following manner: 10,000 X 12 X 13= Rs.15,60,000/- 9. Therefore, the total compensation entitled by the appellant ## can be summarized like this : |**Sl.No.**|**Head**|**Amount**| |---|---|---| |1|Compensation for<br>disability|Rs.8,30,000/-| |2|Attendant’s expenses|Rs.14,60,000.00<br>(Rs. 15,60,000 –Rs.1,00,000)| ||**Total**|**Rs.22,90,000/-**| 10. The counsel for the 4[th] respondent submitted that the total claim of the appellant was only Rs.20,00,000/-. In _**Yadava Kumar** v._ _**National Insurance Company**_ [(2010) 10 SCC 341], the Apex Court observed that the court should be liberal and not niggardly while determination of compensation. Life and limb should be valuated on a generous scale. In _**Nagappa v. Gurudayal Singh**_ [2001 (1) KLT 115 **MACA.No.427 OF 2010** **9** SC], the Apex Court held that there is no restriction in the Tribunal awarding more compensation than the amount claimed in the claim petition. In the light of the above principles laid down by the Apex Court, the contention of the Insurance Company cannot be accepted. According to me, the amount awarded is a just compensation in the facts and circumstances of this case. 11. Then, the counsel for the Insurance Company submitted that the accident in this case happened in the year 2002. Therefore, the interest rate may be reduced to 4 % at least to the enhanced compensation. Considering the entire facts and circumstances of this case, I think the appellant is entitled interest at the rate of 6 %. Therefore, this appeal is allowed in part. The impugned award is modified. The appellant is entitled an enhanced compensation of Rs.22,90,000/- with interest at the rate of 6% from the date of application till realization for the enhanced amount. The 4[th] respondent will pay the enhanced compensation with interest to the appellant. sd/- ## **P.V.KUNHIKRISHNAN JUDGE** SKS