K.B. Sundaresan & Others v. Sabeer, Shibu and United India Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944 ``` ## `MACA NO. 1984 OF 2011` ``` [AGAINST THE AWARD DATED 27.01.2011 IN OP(MV)NO.1824/2006 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM] ``` ## `APPELLANT/PETITIONER:` - `1 K.B.SUNDARESAN, S/O.BHASKARAN PILLAI, NO.13/982, KALLARAKKAL HOUSE, KARUVELIPPADY, R.K.PILLAI ROAD, COCHIN -5.` - `*ADDL.P2 GEETHA.L, W/O.LATE SUNDARESAN, NO.13/982, KALLARAKKAL HOUSE, KARUVELIPPADY, R.K.PILLAI ROAD, COCHIN -5, NOW RESIDING AT SANDYA MANDIRAM, MANGALATHU NAGAR, KILIKOLLOOR, KOLLAM DISTRICT.` - `*ADDL.P3 SANDHYA K.S., D/O.LATE SUNDARESAN, NO.13/982, KALLARAKKAL HOUSE, KARUVELIPPADY, R.K.PILLAI ROAD, COCHIN -5, NOW RESIDING AT SANDYA MANDIRAM, MANGALATHU NAGAR, KILIKOLLOOR, KOLLAM DISTRICT.` - `*ADDL.P4 SANDEEP K.S, S/O.LATE SUNDARESAN, NO.13/982, KALLARAKKAL HOUSE, KARUVELIPPADY, R.K.PILLAI ROAD, COCHIN -5, NOW RESIDING AT SANDYA MANDIRAM, MANGALATHU NAGAR, KILIKOLLOOR, KOLLAM DISTRICT.` ``` *ARE IMPLEADED AS PER ORDER DATED 02.03.2017 IN IA 740/2017 IN MACA 1984/2011. ``` ``` BY ADVS.P.V.BABY A.N.SANTHOSH ``` ## `RESPONDENTS/RESPONDENTS 1 TO 3:` - `1 SABEER, S/O. SULAIMAN C/O. SHEREEFF, PADAPPARAMBIL HOUSE,H.NO.16/589, THOPPUMPADDY VILLAGE, 682005.` - `2 SHIBU, 345/XXI, THOTTATHIL HOUSE, ALAPPUZHA – 688512.` - `3 UNITED INDIA INSURANCE CO.LTD, SHARANAYA HOSPITAL ROAD, COCHIN, THRISSUR - 680001.` ``` MACA NO. 1984 OF 2011 ``` **==> picture [22 x 9] intentionally omitted <==** ``` BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1984 OF 2011 ``` ``` -3- ``` ## `JUDGMENT` ``` - TheoriginalappellantLate K.B.Sundaresan, met with a horrific accident on 15.07.2005, when the motorcycle he was riding was hit by the offending vehicle, driven in a rash and negligent manner. He sustained very serious injuries, reducing him to a state of assisted life; and he, therefore, filed OP(MV)No.1824/2006 before the Motor Accidents Claims Tribunal, Ernakulam (‘Tribunal’ for short), seeking compensation of an amount of Rs.43,09,706/-, but which has been allowed only to the sum of Rs.10,22,550/-. He assails the Award as being inadequate. ``` ``` 2. Before proceeding, I must record that K.B.Sundaresan died pending lis and his legal heirs have come on record to present this appeal. ``` ``` 3. Sri.A.N.Santhosh – learned counsel for the ``` ``` MACA NO. 1984 OF 2011 ``` ``` -4- ``` ``` appellants, argued that when one reads the impugned Award, it is totally inscrutable as to how the learned Tribunal has arrived at the various computations mentioned therein. He submitted that the calculations are so recondite, that it is impossible to understand what the Tribunal really meant while granting compensation. Then asserted that, as far as the evidence and the pleadings on record go, it is established that the original claimant - who died on 11.06.2016 - had a minimum income of Rs.17,711/- at the time of the accident and therefore, that the compensation for his disability ought to have been reckoned taking ``` ``` that figure and multiplying with the applicable ``` ``` multiplier as per Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]. He pointed out that, instead of doing so, the learned Tribunal deducted a sum of Rs.6,994/- from the ``` ``` MACA NO. 1984 OF 2011 ``` ``` -5- ``` ``` afore mentioned income, saying that this was the pension which he had obtained when he availed Voluntary Retirement from the bank in which he was employed, after a period of three years after the accident; and then went on to deduct ``` ``` further amounts without any cause, thus arriving ``` ``` at certain figures which, as said above, is without any rational basis. ``` ``` 4. Sri.A.N.Santhosh, thereafter, submitted ``` ``` that, as per Ext.X2 - Disability Certificate ``` ``` issued by a competent Medical Board, the ``` ``` original appellant had been reduced to a vegetative stage, with 85% total body ``` ``` disability, but 100% functional disability; and ``` ``` that he required full time assistance, being ``` ``` confined to wheelchair and bed until he died ``` ``` eventually. He argued that, therefore, apart ``` ``` from the compensation towards disability, sufficient compensation for expenses of an ``` ``` MACA NO. 1984 OF 2011 ``` **==> picture [22 x 9] intentionally omitted <==** ``` attendant ought to have been granted, as per the ratio settled by the Hon’ble Supreme Court in ``` ``` Jithendran v. New India Assurance Company.Ltd & another [2021 KHC 6653] andKajal v. Jagdish ``` ``` Chand & Ors. [MANU/SC/0126/2020]. He concluded his submissions contending that, taking note of ``` ``` the horrendous nature of the injuries and its aftermath on his client, the compensation ``` ``` awarded by the Tribunal under the head ‘Pain and Sufferings’ and ‘Loss of Amenities’, both ``` ``` require to be sufficiently enhanced; as also the ``` ``` expenses suffered by him towards ‘Extra Nourishment’. ``` ``` 5. In response, Sri.P.Jacob Mathews – learned ``` ``` Standing Counsel for the Insurance Company, argued that the Tribunal has acted correctly because, it first took the actual income of the ``` ``` original appellant, which is discernible from ``` ``` the documents on record and then reduced the ``` ``` MACA NO. 1984 OF 2011 ``` **==> picture [22 x 8] intentionally omitted <==** ``` pension which he obtained subsequent to the VRS. ``` ``` He argued that, therefore, this appeal is only deserving of being dismissed; asserting that the ``` ``` sums awarded under the heads ‘Loss of Amenities’ ``` ``` and ‘Pain and Sufferings’ are fully commensurate to the injuries sustained by the appellant. ``` ``` 6. I have considered the afore submissions on ``` ``` the touchstone of the evidence and documents on record, which I have evaluated carefully. ``` ``` 7. As is evident from the afore narrative, ``` ``` the primary contest between the parties is as to ``` ``` the income to be adopted for the original appellant, who is now no more. ``` `8. The learned Tribunal has relied upon the` ``` evidence marked on the side of the claimant to ``` ``` find that his pay in October 2005 was Rs.17,711/-. It then went on to accept the ``` ``` income as being Rs.18,691/-, which was the sum ``` ``` claimed by the original appellant but deducting ``` ``` MACA NO. 1984 OF 2011 ``` ``` -8- ``` ``` Rs.2,000/- from it towards Income Tax. However, ``` ``` it omitted to note that when the Permanent Disability of the original appellant was certified to be 85%, future prospects ought to have been added, going by the various judgments of the Hon’ble Supreme Court, includingSyed Sadiq & Ors. v. Divisional Manager, United India ``` ``` Insurance Company Ltd. [(2014) 2 SCC 735], Erudhaya Priya v. State Express Transport Corporation Ltd. [2020 ACJ 2159] and Satheesh E. ``` ``` v. The New India Assurance Company Ltd. & Ors. ``` ``` [(2022) SCC OnLine 1828]. ``` ``` 9. Before moving on, I must take note of ``` ``` certain other essential facts, as have also been ``` ``` noticed by the Hon’ble Tribunal. After nearly three years of the accident, the original appellant was forced to take Voluntary Retirement (VRS), consequent to which, an amount of Rs.6,994/- became eligible to him as pension. ``` ``` MACA NO. 1984 OF 2011 ``` ``` -9- ``` ``` The Insurance Company took the stand that this amount ought to have been reduced from his income and this has been acceded to by the learned Tribunal. InSebastian Lakra v. ``` ``` National Insurance Company [2018 KHC 6809], the ``` ``` Hon’ble Supreme Court has rendered it luculent that the Family Pension obtained by the legal ``` ``` heirs of a deceased cannot be reduced from the ``` ``` income to be taken in his favour while fixing the compensation. In this case, the amount of Rs.6,994/- is not Family Pension, but the pension that the original claimant, now ``` ``` deceased, obtained consequent to the VRS. I am ``` ``` of the view that the learned Tribunal cannot be ``` ``` faulted for having reduced that figure from the ``` ``` income reckoned; and therefore, approve it. ``` ``` 10. That being said, the medical evidence ``` ``` on record, particularly, A8 - Wound Certificate andExt.A10 – Medical Certificate, graphically ``` ``` MACA NO. 1984 OF 2011 ``` ``` -10- ``` ``` show the horrendous nature of the injuries sustained by the original appellant. The learned Tribunal has also referred to the same in paragraph 14 of the impugned Award, which, for the sake of avoiding repetition, is extracted as under: ``` ``` “The claimant sustained series injuries the contents of Ext.A8 wound certificate and A9 treatment summary are reproduced here under. Bleeding the nostrils, contusion right eye lacerated wound right supraorbital region and zygomatic region, multiple abrasions – face and extremists.C.T. scan brain showed SAH involving B/L sylvian cisterns, basifrontal, right perisylvian contusion, fracture right Z.M complex fracture floor or right ACF/MCF acute infarct right tempero-parietal and right ganglio-capsular region, absence of flow void in petrous cavernous and supraclinoid portion of ICA, contusion – B/L parasagital and right basifrontal region, diffuse cerebral oedema with subflcine and early transtehtorial herniation. As a part of treatment on the 5[th] post admission (21/7/05) the patient was frowsy and developed left sides focal deficits, which was gradually worsening. It was suspected to be a case of aneursysm rupture and a 4 vessel angiogram was sone. Angiogram revealed dissection of Rt.ICA with cerebral vessels in vasospasm. In view of the radiological findings of impending herniation, a Rt.F-T-P decompressive craniectomy was done. A tracheostomywasdoneforeffective tracheobronchial toilet and he was weaned off ventialtory support.” ``` ``` MACA NO. 1984 OF 2011 ``` **==> picture [30 x 8] intentionally omitted <==** ``` 11. The evidence also discerns that the original appellant was treated as an inpatient for forty days; and Ext.X2 Disability Certificate, as I have said above, certified his ``` ``` disability to be 80% whole body, splitting it to ``` ``` 75% Neuro Disability and 40% Ophthal Disability. The learned Tribunal has also recorded that it ``` ``` had the opportunity to meet the appellant while he was in the ambulance brought to the Court to ``` ``` tender evidence and that it found that “he has ``` ``` been reduced into the form of a living ``` ``` vegetable” (sic). Pertinently, the Tribunal ``` ``` thus accepted Ext.X2 fully and adopted the percentile of disability of the appellant to be 85%. ``` ``` 12. Thus when the Tribunal itself had found that the original appellant had been reduced to full assisted living, it ought to have taken into account the expenses he would have had to ``` ## `MACA NO. 1984 OF 2011` ``` -12- ``` ``` incur for having an assistant. It is not ``` ``` probable or plausible to maintain that his wife ``` ``` should have been attending to him throughout the ``` ``` day and night because, she has the burden of the ``` ``` family, which is evident from the fact that the ``` ``` deceased is survived by her and two children, ``` ``` who were very young at the time of accident. In ``` ``` Kajal (supra), the Hon’ble Supreme Court has postulated that a minimum of Rs.5,000/- must be added to the income of the injured in such cases, for the purpose of compensating the ``` ``` expenses for assisted living. I see no reason why this should have been denied to the original appellant. ``` ``` 13.Coming back to the compensation under ``` ``` the heads ‘Pain and Suffering’ and ‘Loss of ``` ``` Earnings’, for the very same reasons said above, I am certain that, at least under the former ``` ``` head, it requires to be substantially enhanced; ``` ``` MACA NO. 1984 OF 2011 ``` ``` -13- ``` ``` though with respect to the latter, I deem not to do so because Rs.1 Lakh has already been granted. I, therefore, propose the compensation for ‘Pain and Suffering’ to be enhanced to Rs.1 Lakh. ``` ``` 14.Further, when it is conceded that the appellant was hospitalised for 40 days and has ``` ``` been reduced to a vegetative state and assisted living, I am certain that the compensation awarded under the head ‘Extra Nourishment’ of Rs.10,000/- is too low and that at least the amount claimed for by the appellant ought to have been granted. ``` ``` 15.That said, even though the whole body ``` ``` disability of the appellant, certified in Ext.X2 issued by the Medical Board, is 85%, in view of the afore reasons and in particular that he has been found to be reduced to ‘vegetative state’ even by the Tribunal, I have no doubt that, for ``` ``` MACA NO. 1984 OF 2011 ``` ``` -14- ``` ``` computing compensation, his condition will have ``` ``` to be treated as enduring 100% disability. ``` ``` In the afore circumstances, this Appeal is ``` ``` partly allowed in the following manner: ``` ``` a)In modification of the Award of the ``` ``` Tribunal, an amount of Rs.19,66,552/- is awarded ``` ``` under the head ‘Disability’, reckoning the ``` ``` notional income of the appellant to be ``` ``` Rs.18,691/- and reducing Rs.2,000/- towards ``` ``` Income Tax, as also Rs.6,994/-, being the ``` ``` pension obtained by him consequent to the ``` ``` voluntary retirement. The percentile of ``` ``` disability is adopted to be 100% as said above ``` ``` and the consequent multiplier of 13, as per ``` ``` Sarala Verma and Others v. Delhi Transport ``` ``` Corporation & Another [2010 (2) KLT 802], applied. ``` ``` (b)In addition, taking note of the fact ``` ``` that the deceased lived up until 11.06.2016, I ``` ## `MACA NO. 1984 OF 2011` ``` -15- ``` ``` grant a further amount of Rs.6,60,000/- (Rupees six lakhs sixty thousand only), towards ``` ``` “Attender Expenses” at the rate of Rs.5,000/- ``` ``` per month, being guided by the judgment of the Hon’ble Supreme Court inKajal (supra) and ``` ``` Jithendran v. New India Assurance Company Limited and Another [2021 KHC 6653]. ``` ``` (c)An amount of Rs.20,000/- (Rupees twenty ``` ``` thousand only) is granted under the head “Extra Nourishment”, adverting to the fact that the ``` ``` original appellant was hospitalized for 40 days and then reduced to a ‘vegetative state’ after the accident. ``` - `(d) The compensation under the head “Pain` ``` and Suffering” is enhanced to Rs.1,00,000/- ``` ``` (Rupees one lakh only), from Rs.30,000/- now ``` ``` granted by the Tribunal. ``` ``` (e)The compensation awarded by the ``` ``` Tribunal under the heads “Loss of Earnings” ``` ``` MACA NO. 1984 OF 2011 ``` ``` -16- ``` ``` (Rs.6,00,000/-) and “Continuing and Permanent Disability” (Rs.2,55,000/-) are both deleted. ``` ``` (f) The compensation awarded by the Tribunal ``` ``` under other heads are confirmed and maintained. ``` ``` Consequently, the appellants will be at full ``` ``` liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along ``` ``` with interest at the rate of 6.5% (modifying the ``` ``` rate of interest of 8% granted by the Tribunal, in view of the escalation granted by this ``` ``` Court), except under the head “Bystander ``` ``` Expenses”, from the date of claim until it is recovered.They will also be entitled to ``` ``` proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` As far as the interest on the sum awarded by this Court as “Bystander Expenses” is concerned, it will run thereon at the rate of 6.5% from the ``` ``` date of this Award until it is realized. ``` ``` MACA NO. 1984 OF 2011 ``` **==> picture [30 x 8] intentionally omitted <==** ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the Tribunal, within a period of two months from the date of receipt of a copy ``` ``` this judgment. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```