Devadas v. Shaji P.O. and National Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T.R.RAMACHANDRAN NAIR
P.V.ASHA
Judgment Date: 2015-02-10
Court Decision / Holding: The appeals are allowed in MACA 897/2007 and dismissed in MACA 1984/2007. The court re-evaluated damages, set the monthly income at Rs. 4,000, awarded Rs. 48,000 for loss of earnings, Rs. 15,000 for transport, Rs. 50,000 for future treatment, Rs. 2,00,000 for pain and suffering, Rs. 2,00,000 for loss of amenities, and Rs. 7,20,000 for continuing permanent disability at 100% with a multiplier of 15. The final total compensation is Rs. 15,60,900, with interest at 9% from the date of petition; a portion of the amount is to be deposited in fixed deposit; costs to be borne by the parties.
Final Disposition: MACA 897/2007 allowed; MACA 1984/2007 dismissed. Total compensation Rs. 15,60,900; 9% interest from date of petition; fixed deposit of Rs. 5 Lakhs; excess court fee to be recovered from deposit; costs on parties.

Parties to the Case

Appellants / Petitioners

Devadas, S/O Krishnan, Muthuveettil House, P.O. Vellanikkara, Chirakkakode, Thrissur

Respondents

Shaji P.O., S/O Paily, Panamkudy House, Chuvannamannu, Thrissur
National Insurance Co. Ltd., Thrissur Branch Office, Ambika Arcade, P.B. No. 89, MG Road, Thrissur

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Sheji P. Abraham

Counsels for Respondents

• Smt. Raji T. Bhaskar

Case Synopsis & Summary

Devadas, a tractor mechanic aged around 40, sustained severe injuries in a road accident on 15-03-2002 when a bus overtook his tractor on the Thrissur-Palakkad National Highway, resulting in paraplegia and complete sensory loss below D6. He received treatment at AIMS Hospital and later at Indo American Hospital, with a final diagnosis of burst fracture D6 with D5-D6 subluxation and permanent disability. The Motor Accidents Claims Tribunal awarded Rs. 7,97,960 as compensation. The claimant sought enhancement, arguing lifelong disability and ongoing medical costs; the insurer challenged the award as excessive and opposed the separate head for loss of earning power. The High Court, hearing MACA Nos. 897 and 1984/2007, increased the monthly income to Rs. 4,000, awarded Rs. 48,000 for loss of earnings for 12 months, Rs. 15,000 for transportation, Rs. 50,000 for future treatment, and Rs. 2,00,000 each for pain and suffering and for loss of amenities and life. It fixed 100% disability with a multiplier of 15, awarding Rs. 7,20,000 for permanent disability, and discarded a separate head for loss of earning power. The overall award became Rs. 15,60,900, with 9% interest from the petition date. The insurer’s appeal was dismissed; the claimant’s appeal was allowed in part.

Submissions & Arguments

Contentions of Appellants / Petitioners

The claimant contends for enhancement on the ground that the injuries have left him completely incapacitated and dependent for life, with ongoing medical treatment and expenses; it was argued that the Tribunal’s amounts were inadequate given the severity of disability and the claimant’s skilled work experience.

Contentions of Respondents

The Insurance Company opposed enhancement, challenging the Tribunal’s method of computation and contending that separate heads for continuing disability and loss of earning power are not permissible; it relied on earlier judgments such as Oriental Insurance Co. v. Hariprasad.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kavitha v. Deepak and others	2012 (8) Supreme Court Cases 604	Positive	Cited and followed for principles on bystander expenses and long-term disability awards.
Oriental Insurance Co. Ltd. v. Hariprasad	2005 (4) KLT 977	Mentioned Only	Cited by insurer; not adopted as controlling authority in the present judgment.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA TUESDAY, THE 10TH DAY OF FEBRUARY 2015/21ST MAGHA, 1936 MACA.No. 897 of 2007 ( ) ------------------------- (AGAINST THE AWARD IN OPMV 1063/2002 of SPL.COURT FOR EC ACT CASES &MACT,TSR DATED 25-11-2005) APPELLANT(S)PETITIONER: ---------------------- DEVADAS, S/O.KRISHNAN, MUTHUVEETTIL HOUSE, P.O.VELLANIKKARA, CHIRAKKAKODE, TRICHUR. BY ADV. SRI.SHEJI P.ABRAHAM RESPONDENT(S)/RESPONDENTS: --------------------------- 1. SHAJI P.O., S/O.PAILY, PANAMKUDY HOUSE, CHUVANNAMANNU, THRISSUR. 2. S.KAMALAM, W/O.SETHURAMALINGAM, SETHU NIVAS, CHITTOOR, PALAKKAD. (DELETED) 3. NATIONAL INSURANCE CO.LTD., THRISSUR BRANCH OFFICE, AMBIKA ARCADE, P.B.NO.89 M.G.ROAD, THRISSUR. (RESPONDENT NO.2 DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 19/2/2008 I I.A.NO.417/2008 AT THE RISK OF THE APPELLANT) R3 BY ADV.SMT.RAJI T.BHASKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10-02-2015, ALONG WITH MACA. 1984/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR. & P.V.ASHA, JJ.** - - - - - - - - - - - - - - - - - - ## **MACA. Nos. 897 & 1984 OF 2007** - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of February, 2015 ## **JUDGMENT** ## **Asha,J.** The award dated 25-11-2005, passed by the MACT, Trissur is assailed in both these appeals i.e M.A.C.A 897/2007 filed by the claimants seeking to enhance and 1984/2007 filed by the Insurance Company seeking to reduce compensation. Hence, we are disposing of the appeals together. 2. The claimant sustained injuries in an accident which occurred on 15/3/2002. Appellant is a tractor mechanic. While he was traveling in a tractor through Thrissur-Palakkad National Highway, a bus which came in the same direction attempted to overtake the tractor and hit the same and the claimant sustained very severe injuries. He was taken to the MACA.Nos.897 & 1984 of 2007 : 2 : Aswani Hospital, Thrissur. In Ext.A2 wound certificate, it was noticed that there were lacerated wound 1 x.5 cm on the above right dorsum, contusion over chest ,abrasion both knees and unable to move limbs and loss of sensation. He was admitted in AIMS Hospital on 16.3.2002, underwent a surgery on 20.3.2002 and was discharged on 28.3.2002. He was thereafter admitted in in Indo American Hospital, Vaikom. He underwent treatment as inpatient for 59 days. As per Ext A21 discharge summary issued from AIMS Hospital, appellant was paraplegic from the accident site itself and he was admitted there with traumatic paraplegia. He had sustained fracture transferse process of T11 vertibra. On MRI Spine, he was found to have anterior wedge compression of D6, Bilateral subluxation of D5, D6 with lysthesis of D5 over D6 producing an internal gibbus and mild thecal impression, non haemorrhage cord contusion D4 and D6, dislocation of elbow joint. Final diagnosis was stated as : “burst fracture D6 with D5D6 subluxation-posterior fusion done. He was taken up for D6 laminectemy, bilateral pediculotomy, cord decompression; findings included severely contused cord seen through dural MACA.Nos.897 & 1984 of 2007 : 3 : tears. D6 posterior elements fractured in several places. Bilateral D6 pedicles displaced medically with bone fragments pincing the cord. Posterior fusion done with pedicle screws on D4-D7 and Steffee Plates.” His condition at the time of discharge was stated as “complete paraplegia, complete sensory loss below D6, absent bladder functions, no bed sore”. He was advised to continue physiotherapy, continue wearing spinal brace, clean self intermittent catheterisation, frequent position changes every 2 hours to avoid bedsore and to attend neurosurgery OPD after 3 weeks. In Ext A6, he was found paraplegic , in dwelling catheter and his disability was assessed as 100%. 3. The appellant was a tractor mechanic. In the claim petition, it was claimed that he was earning monthly income at the rate of Rs.5,000/-. He was aged 40 years at the time of the accident. Before the Tribunal, oral evidence was adduced examining PWs 1 and 2 and documentary evidence by way of Exts.A1 to A31. The doctor, who issued disability certificate was examined as PW2 and it was deposed by him that the appellant was suffering from parapleagea and hence his disability was MACA.Nos.897 & 1984 of 2007 : 4 : cent percent. The Tribunal by reckoning his disability as 90% whole body disability, fixed monthly income at the rate of Rs.2000/- and awarded a sum of Rs.3,45,600/- as compensation for continuing permanent disability. The total compensation awarded by the Tribunal is Rs.7,97,960/-. 4. The counsel for the claimant argued for enhancement of the compensation pointing out that the amounts awarded by the Tribunal under various heads are thoroughly inadequate. It is submitted that the appellant is unable to move and even for his personal and primary needs, he requires the assistance of another and that he continues to be under treatment on account of the injuries sustained as early as in the year 2002. 5. The learned counsel for the respondent-Insurance Company vehemently opposed the claim for enhancement. It is pointed out that the Tribunal has awarded exorbitent amounts under various heads and compensation is awarded separately under the head of continuing permanent disability as well as the loss of earning power, which is not permissible. Therefore Insurance Company has challenged the award in MACA MACA.Nos.897 & 1984 of 2007 : 5 : No.1984/2007. 6. We have considered the rival contentions with reference to the pleadings, evidence on record and the contentions raised. It is seen that the appellant was a skilled worker, engaged in the avocation of a tractor mechanic. On account of the accident, he has became completely incapacitated not only to carry on his avocation, but even to attend his own primary needs. He had incurred a lot of expenditure for treatment ever since the date of the accident and it is required during his entire lifetime. In view of the fact that he was a skilled mechanic, we are of the view that monthly income of the appellant can be safely reckoned as Rs.4,000/-, for the purpose of assessing compensation. 7. The Tribunal has awarded a sum of Rs.25,000/- towards compensation for loss of earnings in two heads i.e. Rs.10,000/as loss of earnings for a period of five months and Rs.15,000/-as compensation for partial loss of earnings. We are of the view that a sum of **Rs.48,000/** - can be awarded to the appellant towards loss of earnings for a period of twelve months. We award that amount and delete the compensation awarded for partial MACA.Nos.897 & 1984 of 2007 : 6 : loss of earnings. 8. The Tribunal has awarded a sum of Rs.9,840/- towards expenses for transportation as against the claim of Rs.15,000/-. It is seen that the appellant had undergone treatment in Trissur initially and thereafter in Amrutha Hospital **,** Ernakulam. He had to attend several reviews after his in-patient treatment. Therefore we award Rs. 15000/-towards the same. 9. The Tribunal has awarded a sum of Rs.20,000/- towards expenses for extra nourishment and Rs.1000/- towards damages to clothing and articles. 10. An amount of Rs.1,06,920/- has been awarded by the Tribunal towards medical expenses. As against the future treatment no amount was awarded. It is claimed that the appellant is continuing his treatment. Therefore, apart from expenditure already incurred, he is incurring expenditure for day-to-day requirements. Therefore we award **Rs.50000/-** towards future treatment. 11. Appellant has incurred cent percent disability, on account of paraplegia, as evident from Ext A6 disability certificate MACA.Nos.897 & 1984 of 2007 : 7 : as well as the testimony of PW2. But the Tribunal reckoned his disability only at 90%. Tribunal awarded a sum of Rs. 345600/towards continuing permanent disability, reckoning his income @2000/- per month, adopting the multiplier of 16 and disability as 90%. It is found that appellant is in a vegetative stage, depending on others for even personal needs, without any mobility and sensation. From the testimony of PW1 and 2 and the disability certificate, there is no reason for not adopting the disability factor as 100%. As the appellant was aged 40 years, the proper multiplier to be adopted is 15. Therefore we re-fix the compensation under the head of permanent disability, reckoning 100% disability, reckoning his income @ 4000/- per month and adopting the multiplier of 15 and award a sum of Rs. **7,20,000/-** . (4000x12x15x100/100) under the head of continuing permanent disability. Tribunal has awarded a sum of Rs. 1 lakh towards loss of earning power. We are of the view that separate compensation under the head of loss of earning power is not necessary. 12. Tribunal has awarded a sum of Rs. 40000/- towards MACA.Nos.897 & 1984 of 2007 : 8 : pain and sufferings and Rs. 1 lakh towards loss of amenities of life and loss of enjoyment. From the materials on record produced before the Tribunal, it can be seen that the appellant is affected by paraplegia ever since the date of accident and has been experiencing the sufferings, agonies, discomforts and inconveniences since then. He has to experience the same life long. The injuries sustained by him at the age of 40 years, totally incapacitated him to have any enjoyment in life or even the amenities of the life which a normal human being can have. He cannot even move without the help of another. His body below shoulder is paralysed and there is no bowel function. He is on catheterisation. Having regard to the agony, discomforts and inconveniences being experienced by appellant, it is clear that the loss caused to him cannot be compensated in terms of money. In such circumstances, we award a sum of **Rs. 2,00,000/** - towards pain and sufferings and another sum of **Rs.2,00,000/-** towards loss of enjoyment and amenities of life . 13. Requirement of a by stander, in order to attend the appellant's day to day functions is essential. The Tribunal has MACA.Nos.897 & 1984 of 2007 : 9 : awarded a sum of Rs.50,000/-. The learned counsel appearing for the appellant relying on the judgment of the supreme Court in **Kavitha v. Deepak and others (2012 (8) Supreme Court Cases 604),** contented for awarding compensation under the heads of expenses towards by standers, pain and sufferings and loss amenities etc. In the aforesaid judgment, the Apex Court awarded a sum of Rs.34,38,747/- . There a 38 year old woman, incurred very serious disabilities and virtually became a vegetable as such. Therein, the Apex Court, after reiterating the principles for awarding just compensation to the victims of accidents, awarded a sum of Rs.9 lakhs towards medical expenses at the rate of Rs.3,000/- per month for a period of 25 years, in addition to a sum of Rs.6 lakhs towards attendant charges and substantial amounts as compensation towards loss of earnings, future earnings on account of permanent disability, pain and suffering, loss of amenities, etc. in separate heads. We are of the view that award of a sum of **Rs.2,00,000/-** will be just towards bystander expenses, instead of assessing the compensation with respect to the number of years. We have MACA.Nos.897 & 1984 of 2007 : 10 : followed the principles laid down in the aforesaid judgment while enhancing the compensation under various heads. 14. In the result, the appeal is allowed and the impugned award of the Tribunal is modified, under different heads, details of which are given below.: |**_Sl._** **_no_**|**_Head of claim_**|**_awarded by_** **_Tribunal(in_** **_Rupees)_**|**_modified by this_** **_court(in Rupees)_**| |---|---|---|---| |1|Loss of earning|10000 (2000x5)|-| |2|Partial loss of earning|15000|48,000/- (4000x12 months)-| |3|Transportation|9440|15,000/-| |4|Extra nourishment|20000|20,000/-| |5|Damage to clothing|1000|1000/-| |6|By standers expenses|50000|.2,00,000/-| |7|Treatment Expenses|1,06920|1,06,920/-| |8|Pain & sufferings|40000|2,00,000/-| |9|continuing Permanent disability|345600 (2000x12x16 x90/100)|7,20,000/- (4000x12x15x100/10 0)| |10|Loss of earning power|100000|-| |11|Loss of amenities|100000|2,00,000/-| MACA.Nos.897 & 1984 of 2007 : 11 : |**_Sl._** **_no_**|**_Head of claim_**|**_awarded by_** **_Tribunal(in_** **_Rupees)_**|**_modified by this_** **_court(in Rupees)_**| |---|---|---|---| |12|For future treatment||Rs.50,000/-| ||Total|7,97,600/-|Rs.15,60,920/- (Rupees Fifteen Lakhs Sixty Thousand Nine Hundred and Twenty only) rounded off to Rs.15,60,900/-| Thus the appellant is awarded a total compensation of Rs.15,60,900/-. 15. The main grievance raised by the Insurance Company in its appeal -MACA No.1984/2007 is against the award passed by the Tribunal under both the heads of 'continuing permanent disability and under the head of loss of earning power'. Smt. Raji T. Bhaskar, the learned counsel appearing for the Insurance Company relied on the judgment of the Full Bench of this Court in **Oriental Insurance Co.Ltd. V. Hariprasad** ( **2005 (4) KLT 977)** in support of her contentions. We have already enhanced the compensation under the head of continuing permanent disability and we are deleting the compensation under the head MACA.Nos.897 & 1984 of 2007 : 12 : of loss of earning power. At the same time we find that the compensation awarded by the Tribunal is inadequate, having regard to the nature of the injuries sustained by the appellant. The appellant continues to suffer on account of the accident which occurred in the year 2002 and he has to suffer life long. We have already modified the award, granting compensation towards permanent disability, pain and suffering and loss of amenities of life and loss of enjoyment of life. Therefore, the main ground urged in the appeal by the Insurance Company ( MACA No.1984/2007) does not survive. Further we do not find any merit in the contentions raised by the appellant-Insurance Company, so as to reduce the quantum of compensation awarded by the Tribunal, under various heads. Therefore, we dismiss the appeal ( MACA No.1984/2007) filed by the Insurance Company. 16. Accordingly, the MACA No.897/2007 is allowed and MACA 1984/2007 is dismissed. The total compensation is fixed at Rs.15,60,920/-. Enhanced compensation will carry interest at the rate of 9% per annum from the date of the petition. 17. The Tribunal has to recover the excess court fee from MACA.Nos.897 & 1984 of 2007 : 13 : the deposit to be made by the Insurance Company. The Insurance Company shall deposit the amount as per the modified award less the deposit already made, within a period of three months. Out of the total compensation, a sum of Rs. 5 Lakhs (Rupees Five Lakhs) shall be kept in the Fixed Deposit in the name of the appellant. The balance amount can be withdrawn. Parties are at liberty to move the Tribunal for variation as and when necessary. Parties have to suffer their respective costs. Sd/- **T.R.RAMACHANDRAN NAIR, Judge.** **Sd/-** **P.V.ASHA, Judge.** dpk **/true copy/ PS to Judge.** MACA.Nos.897 & 1984 of 2007 : 14 : **T.R.RAMACHANDRAN NAIR,** **Judge.** **P.V.ASHA,** **Judge.** dpk MACA.Nos.897 & 1984 of 2007 : 15 :