K.M. Sebastian v. C. Pushkaran, Ravikumar Ravi & Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945** ## **MACA NO. 665 OF 2013** **OPMV NO.2109 OF 2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **THRISSUR** ## **APPELLANT/PETITIONER:** **K.M.SEBASTIAN, S/O.MATHEW, KANNANAIKAL, KANJIRAMPARAMBIL HOUSE, P.O KUTTUR, KOTTEKKAD, THRISSUR, REPRESENTED BY HIS WIFE AND GUARDIAN SHINCY -DO-** **BY ADVS. SRI.V.BINOY RAM SMT.SAJITHA P.SOMAN** ## **RESPONDENTS/RESPONDENTS:** - **1 C.R.PUSHKARAN, S/O.RAGHAVAN, CHIRAYATH HOUSE, PAMBOOR P.O, KUTTOOR, THRISSUR DISTRICT. PIN 680 013.** - **2 RAVIKUMAR RAVI @ RAVI, S/O.KRISHNAN, CHAKKALAKKAL HOUSE, VALAKKAVU DESOM, MULAYAM VILLAGE, THRISSUR DISTRICT, PIN 680 751.** - **3 THE ORIENTAL INSURANCE CO.LTD DIVISIONAL OFFICE, 3RD FLOOR, MAHESWARI BUILDING, M.G ROAD, THRISSUR PIN 680 001.** - **BY ADVS.** - **SMT.ANUROOPA JAYADEVAN SRI.C.HARIKUMAR SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.665/2013 : 2 : ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.2109/2005 on the files of the Motor Accident Claims Tribunal, Thrissur. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 09.01.2005. According to the appellant, the accident occurred while he was travelling in a bus bearing registration No.KL-8/J 567 through Thrissur-Kuthur MLA road and when the vehicle reached the railway level crossing, the 2[nd] respondent, the driver of the bus, negligently drove the above bus in a reckless manner and due to the impact, the petitioner was thrown out from the bus and sustained serious injuries. Consequent to the same, the appellant was permanently disabled. The appellant was a heavy vehicle driver with a monthly income of Rs.4,000/-. He was 38 years old at the time of the accident. The said bus was owned by the 1[st] respondent and was insured with the 3[rd] respondent. The claim petition was submitted in such circumstances. M.A.C.A. No.665/2013 : 3 : 3. The 3[rd] respondent alone contested the matter by filing a written statement wherein they admitted the coverage of policy but disputed the liability on various grounds. It was also contended that the 2[nd] respondent was driving the vehicle without any valid driving licence or badge. Therefore there was violation of policy conditions. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of oral testimonies of PWs1 and 2 and as documentary evidence, Exts.A1 to A14 were marked from the side of the appellant. Ext.X1 disability certificate was also marked. From the side of the respondents, a copy of the policy was marked as Ext.B1. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the 2[nd] respondent in driving the bus. However, it was found that the driver was not having a valid driving licence and therefore, there was a violation of policy conditions. Accordingly, the initial liability was fixed upon the insurance company to pay the compensation and they were permitted to recover the same from the 1[st] respondent. The quantum of compensation was fixed as Rs.10,83,000/- and the M.A.C.A. No.665/2013 : 4 : said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 8% per annum from the date of petition till realisation and with proportionate costs, with the right of recovery of the said compensation from the 1[st] respondent. However, later, the right of recovery granted to the 3[rd] respondent was reviewed by the tribunal as per order dated 18.07.2016. This appeal is submitted by the appellant seeking enhancement of compensation. 6. Heard Sri. Binoy Ram, the learned counsel appearing for the appellant and Sri. C. Harikumar, the learned counsel appearing for the 1[st] respondent and Sri. P. Jacob Mathew, the learned counsel appearing for the 3[rd] respondent. 7. The only question that arises for consideration is whether the amount awarded by the tribunal is reasonable or not. It is discernible from the records that, the appellant sustained very serious injuries and permanent disablement which put him in a vegetative state. He is completely bedridden and is unable to move around without the help of a third person. Even for his personal needs, he requires the assistance of a third person. Ext.X1 is the disability certificate wherein the percentage of M.A.C.A. No.665/2013 : 5 : disability was certified as 90%. A perusal of the same would reveal that, his cognitive functions are out of control. It was noticed that the major rearrangement of cognitive functions, i.e,, poor attention, no registration, dysphasia, memory, language functions, judgments are very poor. He is unable to even pursue his basic needs. The total permanent neurological disability was assessed as 75% and orthopaedic disability as 17%. The total disability was thus, certified as 90%. The appellant was a driver. The nature of injuries and the disability referred to above would certainly affect all his functions and he became unfit to carry out any employment. Besides the same, even for the day to day activities he requires the assistance of a third person. Therefore, as rightly pointed out by the learned counsel this is a fit case in which 100% disability has to be taken as the functional disability. The said contention is accepted and the 100% disability is taken. 8. The next aspect relates to the monthly income. Even though an amount of Rs.4,000/- was claimed, the tribunal accepted Rs.3,000/- as the monthly income. The appellant claimed to be a heavy vehicle driver. The accident occurred in the year 2005 and considering the said fact, I am of the view that, : 6 : M.A.C.A. No.665/2013 the claim of Rs.4,000/- is reasonable and accordingly it is accepted. Since he sustained very serious disability ,which made him unable to carry out any employment, future prospects needs to be taken into account. Since he was 38 years old at the time of the accident, an addition of 40% of monthly income is to be made. Thus while re-assessing the compensation with the above revised criteria, the amount for disability and the loss of earning power would come to Rs.10,08,000/- [(4000+40%)x12x15)]. The amount already awarded by the tribunal is Rs.4,86,000/- and thus additional amount would come to Rs.5,22,000/-. Consequent to the revision of monthly income, the appellant would be entitled to a further sum of Rs.12,000/- under the head of loss of earnings as the compensation awarded by the tribunal under the said head for a period of one year. 9. The next head which requires consideration is future bystander expenses. The records would undoubtedly establish that the appellant is completely bedridden and he requires the assistance of a third person throughout his life. In such circumstances, as held in **V. Mekala v. M. Malathi and another** M.A.C.A. No.665/2013 : 7 : [(2014) 11 SCC 178] a reasonable amount has to be calculated for expenses he is likely to incur for engaging a bystander. Therefore, in the said case, considering the peculiar factual situation of the said case, the Honourable Supreme Court granted expenses for two bystanders at the rate of Rs.5,000/each. In this case, I deem it appropriate to grant the expenses for atleast one bystander at the rate of Rs.5,000/- and the compensation has to be calculated by applying the multiplier applicable to the age of the appellant. Thus the compensation under this head would come to Rs.9,00,000/- (5000x12x15). An amount of Rs.50,000/- is already awarded by the Tribunal under this head, and therefore the additional amount would come to Rs.8,50,000/-. 10. The next head which requires consideration is pain and sufferings. The total amount claimed under this head is Rs.1,00,000/-, whereas the tribunal awarded Rs.50,000/-. Considering the nature of the injuries sustained, I deem it appropriate to grant a further sum of Rs.50,000/- under the said head. 11. The next aspect relates to the future treatment M.A.C.A. No.665/2013 : 8 : expenses. It is specifically mentioned in Ext.X1 that, he requires physiotherapy and other medical expenses for the whole life time. Despite the above, the tribunal awarded only a meager sum of Rs.50,000/-. This is a serious aspect which should have been taken into account. In the facts and circumstances of the case, I deem it appropriate to grant a further sum of Rs.3,50,000/- under the said head. It is clarified that, as far as the amounts towards future attendant expenses as well as future treatment are concerned, the interest need not be granted at the rate as awarded by the tribunal from the date of the petition. This is particularly because these are expenses expected to incur during the course of his life after the accident. In such circumstances, it is ordered that, the said amounts will carry interest at the rate of 6% per annum from the date of the award. 12. The learned counsel for the 3[rd] respondent points out that the Tribunal awarded an amount of Rs.50,000/- towards loss of expectation in life and a further sum of Rs.75,000/- towards loss of marital life. It was pointed out that in the light of **Lalan D. v. Oriental Insurance Co. Ltd.,** [(2020) 9 SCC 805] when M.A.C.A. No.665/2013 : 9 : compensation is awarded by treating loss of future earning capacity to be 100% or even anything more than 50%, the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear. As a result, only a token or nominal amount may have to be awarded under those heads. I find some force in the said contention. In this case, as this Court had already granted compensation for disability by taking note of the functional disability as 100%, compensation for loss of expectation in life, which was Rs.50,000/- was not at all necessary and it is deducted. However, the amount awarded towards loss of marital life which was Rs.75,000/- can be retained, because of the reason that, no separate amount is awarded towards loss of amenities. Of course, it is true that in **Lalan (supra)** the Honorable Supreme Court was pleased to observe that, in similar circumstances, only a notional amount needs to be granted for loss of amenities. However, the factual circumstances existing in this case are to the effect that the appellant sustained 100% disability and he became completely bed ridden consequent to the injuries. M.A.C.A. No.665/2013 : 10 : Therefore, the deterioration in the quality of his life is a matter which cannot be ignored, while determining the notional income for the purpose of loss of amenities. Therefore, I deem it appropriate to retain Rs.75,000/- awarded by the Tribunal. It is also clarified that even though the same was termed as loss of marital life, the said amount can be accounted for the head of loss of amenities, which takes into consideration of loss of marital life as well. In the result, this appeal is allowed. The award dated 07.09.2012 in OP(MV) No.2109/2005 passed by the Motor Accident Claims Tribunal, Thrissur is hereby modified by grating an additional compensation of Rs.17,34,000/- [(522000+12000+ 850000+50000+350000)-50000] (Rupees seventeen lakhs, thirty four thousand only). Out of the said amount, Rs.12,00,000/(Rupees twelve lakhs only), which was awarded as additional amounts towards future bystander expenses and future treatment expenses, will carry interest at the rate of 6% per annum from the date of award. The remaining amount will carry interest at the rate as ordered by the tribunal from the date of petition till realisation. In addition to that, the appellant shall also be entitled M.A.C.A. No.665/2013 : 11 : to proportionate costs. The said amount shall be deposited by the 3[rd] respondent within a period of three months from the date of receipt of a copy of this judgment. **Sd/-** **ZIYAD RAHMAN A.A. JUDGE** ncd/DG