Laly Geofry v. Biju Kumar and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943 ``` ## **`MACA NO. 1101 OF 2011`** ``` AGAINST THE ORDER/JUDGMENT IN OPMV 509/2006 OF DISTRICT COURT ``` ## **`& SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA APPELLANT/S:`** ``` LALY GEOFRY AGED 43 YEARS W/O.GEOFRY,AGED 43 YEARS,ONATTUTHOTATHIL, HOUSE, KANIYARAM.P.O.,MANANTHAVADY,WAYANAD DIST.,R, EPRESENTED BY HER HUSBAND GEOFRY,AGED 50 YEARS,, ONATTUTHOTATHIL HOUSE, KANIYARAM.P.O.,, MANANATHAVADY, WAYANAD DISTRICT. ``` ``` BY ADVS. SRI.A.K.SRINIVASAN SRI.A.S.BENOY ``` ## **`RESPONDENT/S:`** ``` 1B.BIJU KUMAR AGED 40 YEARS, NMDS KOLLAM, SOORYAPARAMBIL,PUTHENTHURA, NEENDAKARA, KOLLAM.691582 ``` - `2 THAHA SO.ABOOBACKER KUNJU PALAMOOTTIL, CHANANKULANGARA,, OACHIRA, KARUNAGAPPILLY.690518` - `3 THE ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, MARTHOMA BUILDING,, THIRUVALLA.689101` ``` BY ADV SRI.A.R.GEORGE ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME`** ``` UP FOR ADMISSION ON 17.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 MACA No.1101 of 2011 ## **C.S.DIAS, J. ====================== MACA No.1101 of 2011** ## **====================== Dated this the 17[th] day of December, 2021.** ## **JUDGMENT** The strong hopes and tranquil dreams of Laly Geofry - a 40 year old lady – stand shattered in the wink of an eye in a gruesome accident that happened on New year's day of 2006. The bus in which she was travelling, toppled, causing grave injuries to her, and rendering her a paraplegic. Her agony and miseries have perpetuated, as her claim for 'just compensation' has been pending for the last one and half decades. To cut matters cut, Lal Geofry had filed OP (MV) No.509/2006 before the Motor Accident Claims Tribunal, Kalpetta, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation from the respondents. 2. Laly Geofry has averred that, while she was travelling in a bus bearing registration No.KL-2/W 6276 3 MACA No.1101 of 2011 (bus) from Kolenchery to Sulthan Bathery, due to the rash and negligent driving of the bus by the first respondent, the bus overturned at Thalappara. She sustained grievous injuries and was treated at the Baby Memorial Hospital, Calicut from 1.1.2006 to 4.1.2006, then at the Narayana Hrudayalaya, Banglore, till 15.2.2006 and, thereafter, at the St.Mary's Hospital, Sulthan Bathery from 16.2.2006 to 25.5.2006. The second respondent was the owner and the third respondent was the insurer of the bus. Laly Geofry was managing a textile shop at Mananthavady and earning a monthly income of Rs.10,000/-. She sustained a fissure fracture (left temporal bone), extra dural haematoma and T2 -T3 dislocation with spinal-cord injury. She is paralyzed below her waist and confined to bed. Hence, she claimed an amount of Rs.20,00,000/- from the respondents as compensation. 3. The respondents 1 and 2 did not contest the 4 MACA No.1101 of 2011 proceedings and were set ex parte. 4. The third respondent had filed a written statement admitting that the bus had a valid insurance coverage. The third respondent disputed that the first respondent had a valid driving licence. The third respondent also contended that the compensation claimed under the different heads were excessive. 5. Laly Geofry's husband was examined as PW1 and Exts A1 to A20 were marked in evidence. The disability certificate issued by the Medical Board attached to the District Hospital, Mananthavady, was marked as Ext C1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting Laly Geofry to recover from the third respondent an amount of Rs.8,97,500/-, with interest at the rate of 7.5% per annum from the date of petition till the date of realization and proportionate 5 MACA No.1101 of 2011 cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, Laly Geofry has filed the appeal. 8. Heard; Sri.A.S Benoy, the learned counsel appearing for Laly Geofry - the appellant/petitioner and Sri.A.R George, the learned counsel appearing for the third respondent/insurer. 9. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Exts A1 FIR, A2 Scene Mahazar and A3 AMVI report proves that the accident happened due to the negligence of the first respondent. The respondents have not let in any evidence to controvert the assertions in the claim petition or discredit Exts A1 to A3. Indisputably, the second respondent was the owner and 6 MACA No.1101 of 2011 the third respondent was the insurer of the bus. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Notional Income** 11. The appellant had claimed that she was managing a textile shop at Mananthavady, named 'Trendz Frab Textiles' and earning a monthly income of Rs.10,000/-. Nonetheless, she did not produce any materials to prove her assertion. For the want of material, the Tribunal fixed the notional monthly income of the appellant at Rs.4,000/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** **[(2011) 13 SCC 236]** the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 7 MACA No.1101 of 2011 2004 at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the accident happened in the year 2006, I refix the notional monthly income of the appellant at Rs.5,500/-. ## **Multiplier** 14. Admittedly, the appellant was aged 40 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '15'. ## **Disability** 15. Ext A4 wound certificate prepared by the Medical Officer, Baby Memorial Hospital, Calicut, on 2.1.2006 at 1.20 a.m, establishes that the appellant had sustained a fissure fracture of left temporal bone, extra dural haematoma (L) temporal area of brain and T2 - T3 dislocation with spinal-cord injury. 8 MACA No.1101 of 2011 16. In Ext A11 discharge summary shows that the appellant was operated and treated at the Baby Memorial Hospital. Ext A6 discharge summary issued by the St.Mary's Hospital, Sulthan Bathery proves that the appellant has become a paraplegic, due to the traumatic dislocation of her spinal cord. 17. Pursuant to the direction of the Tribunal, the appellant was referred to a five member Medical Board attached to the District Hospital, Mananthavady. The Medical Board found that the appellant is totally paralyzed with motor and sensory loss below T3 segment. She has bedsores on the sacral area. There are contractures of both ankles and has pain in both her upper limbs. She had rounded kyphosis deformity at T1-T4 level and implants insitu. The Medical Board has assessed her permanent disability, as per the Mc Bride's Scale, at 65%. 18. The Tribunal fixed the permanent disability of 9 MACA No.1101 of 2011 the appellant at 65% as per Ext C1. 19. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has categorically held that what needs to be looked into in an injury claim is the functional disability of the injured-claimant. 20. In the instant case, as evident from Ext A4 wound certificate, the appellant has sustained a fissure fracture left temporal bone, extra dural haematoma and T2-T3 dislocation with spinal-cord injury. Ext A16 discharge summary substantiates that the appellant has become a paraplegic, leaving her lower body lifeless. The Medical Board has found that the appellant is totally paralyzed with motor and sensory loss below the T3 segment. 21. On a consideration of the fact that the appellant was only a 40 years at the time of the accident and that she was managing a textile shop, I am of the definite view that the appellant's functional 10 MACA No.1101 of 2011 disability has to be fixed at 100% because she is in a vegetative state due to injuries sustained in treacherous accident on the ill-fated new year's day of 2006. ## **Future prospects** 22. In **V. Mekala v. M.Malathi and another – [(2014) 11 SCC 178], Jagdish v. Mohan and others [(2018) 4 SCC 571], Pappu Deo Yadav v. Naresh Kumar & others [AIR 2020 SC 4424]** and **Anthony @ Anthony Swamy vs The Managing Director, K.S.R.T.C [ (2020) 7 SCC 161]** , the Hon'ble Supreme Court has repeatedly reminded the Tribunals/Courts that in a case of serious injury, the injured-claimant is entitled to future prospects. 23. Following the ratio in the aforecited decisions, and considering the grave injuries sustained by the appellant, leaving her confined to her bed for the rest of her life, I hold that she is entitled to future prospects of 25%, as she was 40 years at the time of the accident. 11 MACA No.1101 of 2011 ## **Loss due to disability** 24. Taking into consideration the above mentioned yardsticks, namely, the notional monthly income of the appellant at Rs.5,500/-, the multiplier at 15, future prospects at 25% and functional disability at 100%, I award the appellant an amount of **Rs.12,37,500/-** towards loss due to disability, in supersession of Rs.4,68,000/- awarded by the Tribunal, that is an enhancement of Rs.7,69,500/-. ## **Loss of earnings** 25. Since I have assessed the functional disability of the appellant at 100%, I set aside the amount of Rs.48,000/- awarded by the Tribunal towards loss of earnings. ## **Bystander expenses** 26. Even though the appellant had claimed an amount of Rs.1,00,000/- towards Bystander Expenses and the Tribunal awarding an amount of Rs.67,000/- 12 MACA No.1101 of 2011 under the said head, treating this case as an exceptional and peculiar one because a 40 years old woman has become bedridden for eternity, I am of the view that the appellant is entitled to a consolidated amount towards bystander expenses, so that the appellant can engage an attender to take care of her for the rest of her life. 27. While dealing with a case of similar nature and circumstances, i.e., of a 12 year old paraplegic child, the Hon'ble Supreme Court in **Kajal v. Jagdish Chand [(2020) 4 SCC 413]** awarded Bystander Expenses adopting the multiplier method. As the appellant was aged 40 years at the time of the accident, I do not propose to adopt the multiplier method, but I feel justified to award the appellant a consolidated amount of Rs.5,00,000/- towards bystander expenses, which could provide the appellant the assistance of an attender till her last breath, without troubling her relatives. Hence, I award the appellant an amount of 13 MACA No.1101 of 2011 **Rs.5,00,000/-** as consolidated bystander expenses, dehors the fact that she had only claimed an amount of Rs.1,00,000/- under the said head. However, I hold that the said amount shall not carry interest. ## **Extra Nourishment** 28. The appellant had claimed an amount of Rs.25,000/- towards Extra-Nourishment. However, the Tribunal awarded only an amount of Rs.2,000/-. 29. Taking into account the peculiar facts and circumstances of the case, I award her an amount of **Rs.25,000/-** as sought for in the claim petition. ## **Pain and suferings and loss of amenities** 30. The appellant had claimed an amount of Rs.3,00,000/towards pain and sufferings. Nevertheless, the Tribunal awarded only an amount of Rs.25,000/- under the said head, which according to me, is on the lower side. 31. Considering the grave nature of injuries sustained by the appellant and that she has become 14 MACA No.1101 of 2011 paralyzed for life and I have fixed her functional disability at 100%, I award her an amount of **Rs.1,00,000/-** under the head 'pain and sufferings' and **Rs.1,00,000/-** under the head 'loss of amenities'. ## **Future treatment** 32. The appellant had produced Annexures A2 to A51 medical bills, which prove that the appellant had incurred an amount of Rs.1,81,815/- for her future treatment. This Court by order dated 25.6.2020 allowed IA No.1/2020 and accepted the said documents on record. Hence the said documents are marked in evidence as Exhibit A21 series. 33. The learned counsel appearing for the third respondent very fairly submitted that the medical expenses, as reflected in Ext A21 series, can be awarded, but the appellant shall not be entitled for interest for the said amount. Therefore, I direct the third respondent to pay the appellant an amount of **Rs.1,81,815/-,** towards future treatment, without 15 MACA No.1101 of 2011 interest. ## **Other heads of compensation** 34. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 35. On a comprehensive re-appreciation of the pleadings and materials on record and considering the extra-ordinary facts and circumstances of the case and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modifed<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|48,000/-|Nil| |2|Transportation<br>expenses|40,000/-|40,000/-| |3|Extra nourishment|2,000/-|25,000/-| |4|Bystander expenses|67,000/-|5,00,000/-| |5|Damage to clothing|500/-|500/-| 16 MACA No.1101 of 2011 |6|Medical expenses|2,47,000/-|2,47,000/-| |---|---|---|---| |7|Pain and suferings|25,000/-|1,00,000/-| |8|Loss of amenities etc|Nil|1,00,000/-| |9|Future treatment|Nil|1,81,815/-| |10|Loss due to disability|4,68,000/-|12,37,500/-| ||Total|8,97,500/-|24,31,815/-| 36. Even though the appellant had claimed only an amount of Rs.20,00,000/-, considering the peculiar facts and circumstances of the case, and the fact that the Hon'ble Supreme Court in **V. Mekala, Jagdish, Anthony @ Anthony Swamy** and **Pappu Deo Yadav** (supra) has held that the injured-claimants are entitled to future prospects in a case of serious injury and in **Kajal** (supra), bystander expenses has to be awarded on the basis of multiplier method, I have awarded the appellant more compensation than what is claimed in the claim petition. This course is permissible in the light of the law laid down in **Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC) and Rajesh vs. Rajbir Singh [ 2013 (3) KLT 89 (SC)].** 17 MACA No.1101 of 2011 In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.15,34,315/-** (Rupees Fifteen Lakh Thirty Four Thousand Three Hundred and Fifteen only). The amount of Rs.5,00,000/- that has been ordered towards Bystander Expenses and the amount of Rs.1,81,815/towards medical expenses, totalling to an amount of Rs.6,81,815/- will not carry interest. Therefore, only an amount of Rs.8,52,500/- will carry interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit, after deducting interest for a period of 351 days, viz., the period of delay in filing the appeal and as ordered by this Court on 12.12.2019 in C.M Appln No.1698/2011, and proportionate cost. The third respondent/insurer is ordered to deposit before the Tribunal an amount of Rs.8,52,500/- with interest at the rate of 7.5% as worked out above with proportionate cost and an amount of Rs.6,81,815/without interest within a period of sixty days from the 18 MACA No.1101 of 2011 date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the next-friend of the appellant, in accordance with law. Sd/- sks/17.12.2021 **C.S.DIAS, JUDGE** 19 MACA No.1101 of 2011 This Court doth order and decree that the appellant is entitled to a sum of Rs.1,53,797/- (Rupees One Lakh fifty three thousand seven hundred and ninety seven only) being their proportionate costs in this appeal. ## Memo of costs for the appellant Court Fee paid : Rs.100/Stamp on vakalath : Rs.10/Senior Advocate’s fee : Rs.1,02,400/- (as per Rule 18) Junior Advocate’s fee : Rs.51,200/- (as per Rule 25 of the Advocate Fee Rules) Cost incurred in getting L.C judgment and decree : L.C judgment and decree : Rs.19/Petition fee : Rs.20/Process fee : Rs.48/---------Rs.1,53,797/========== Proportionate costs for the appellant in MACA 1101 of 2011 : Rs.1,53,797/- (Rupees One lakh fifty three thousand seven hundred and ninety seven only) sd/- **Joint Registrar signed on: 4.11.2022**