Latha Surendran v. Surendan and Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 30TH DAY OF JANUARY 2015/10TH MAGHA, 1936 MACA.No. 1439 of 2013 () ------------------------- AGAINST THE AWARD IN OPMV 2498/2007 of MACT,TSR DATED 22-04-2013 APPELLANT(S)/PETITIONER: -----------------------------------------LATHA SURENDRAN AGED 40 YEARS W/O. SURENDRAN, PARAKOTTU, SUDHILAYAM ELANADU, CHELAKKARA, THRISSUR DISTRICT REP. BY MOTHER THANKAM. BY ADV. SRI.SHEJI P.ABRAHAM RESPONDENT(S)/RESPONDENTS/RESPONDENTS: -------------------------------------------------------1. SURENDRAN, AGED 50 YEARS S/O. CHATTUNNI, PARAKOTTU, SUDHILAYAM ELANADU, CHELAKKARA, THRISSUR DISTRICT. 2. ORIENTAL INSURANCE CO. LTD. SHOBHA TSM COMPLEX, RAILWAY STATION ROAD PALAKKAD-678001. R2 BY ADV. SRI. MATHEWS JACOB (SR) R2 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.HARISANKAR V. MENON R1 BY ADV. SRI.MAHESH V.MENON THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-01-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **T.R. RAMACHANDRAN NAIR & P.V. ASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - -** ## **M.A.C.ANo.1439 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of January, 2015** ## **JUDGMENT** ## **Asha, J.** The appellant is the injured in a motor vehicle accident which occurred on 20.7.2007. She is represented through her mother, since she has been totally incapacitated physically and mentally, on account of the accident. She was a pillion rider on a motor cycle, which her husband, who is the first respondent herein, was riding. The accident is stated to have occurred when her husband applied sudden break while riding the vehicle in high speed, due to which she was thrown away to the road. She sustained very serious injuries and was taken to Medical College Hospital, Thrissur. 2. She was aged 35 years at the time of accident. The records relating to the treatment as well as the wound certificate show that she had lacerated wound 4 x 1 cm occipital region, lacerated wound 4 x MACA 1439/2013 2 1cm lateral to the above wound and contused abrasion around the lacerated wound. She had internal cerebral contusion and underwent neuro surgery by craniotomy method. She underwent treatment as an inpatient for a period of 84 days incurring an expenditure of Rs.1,41,922/- towards medical expenses alone. She suffered 98.44% permanent disability. The injuries sustained, treatment undergone as well as the pathetic plight of the injured is detailed in Ext.A1 disability certificate issued on 21.01.2013, as follows: _“This is to certify that Mrs. Latha, 40 years, d/o Balakrishnan, Asarikkadu kunnathuveedu (H), Kumbalakkodu P.O. Pazhayannur, Thrissur was involved in a road traffic accident on 19.07.2007._ _She was initially treated at medical college Thrissur and according to the available treatment documents, she was operated for headinjury at medical college Thrissur._ _She was further treated at Daya General Hospital and specialty surgical centre Thrissur from 07.08.07 onwards. At the time of admission here she was comatose and she underwent VP shunt insertion surgery at this hospital._ _She was treated again at Brain and Spine Centre, Vaikom from 23.04,09 to 28-04.09 as hospital no. 2008/069138 with a diagnoses of head injury for rehabilitation._ _She was further treated at Daya General Hospital and specialty surgical centre Thrissur from 24.08.2010 to 01.09.2010 as OP no. 2010/ 20125 IP no. 2010/ 046264 . According to the certificates issued from Daya General Hospital and specialty surgical centre Thrissur on 01.09.10 and 18.01.11, she needs recurrent hospital admission for physiotherapy and injections. Her chance for full recovery from the present bedridden condition is remote. She needs lifelong medications and nursing care._ _She has been undergoing regular physiotherapy and follow up since then._ _She is formally educated up to 9th standard and was a house wife at the time of the accident._ MACA 1439/2013 3 _Now on clinical examination after verifying the available treatment documents she has the following clinical findings and disabilities-_ ## _- Higher Mental function examination_ _She has severe impairment in cognitive functions. She has complete global aphasia with ability to create unintelligible sounds only. She has complete lack of orientation in time and place._ _She has no registration. No attention capability, poor concentration and no comprehension. She is not at all able to use her hands in drawing or writing. She cannot read, nor calculate. She has poor gaze fixation and complete loss of speech and language function._ _Her Mini mental status examination score is very poor (ALMOST NIL) and this indicates severe disability in Mental function._ _She has emotional instability with sudden unreasonable outbursts of anger, irritability, fear and crying. Cranial nerve examination-_ _Her cranial nerve functions cannot be tested, as she cannot communicate in any way._ ## _- Spinomotor system examination_ _She has quadriparesis with spasticity of upper and lower limbs._ _She cannot carry out any of the activities of daily living like eating, bathing, cleaning or dressing with her hands. She cannot sit up without support. Her hands and fingers are clawed and spastic. She cannot carryout any motor activity fine or gross using her upper limbs._ _She has spastic flexion of lower limbs. She cannot walk- or run using her lower limbs she needs a second person to carry hershe has wasting of all the limb muscles and spasticlty._ _She has complete urinary incontinence and is on continuous bladder drainage by Foley's catheter. She has poor bowel control and needs to be cleaned repeatedly daily._ _She cannot walk or move about independently and even for sitting up she needs support._ _She needs life long antispasticity drugs and physiotherapy . Her total permanent disability is assessed according to the Persons with Disabilities Act 1998, Ministry of Social Justice and Empowerment as follows-_ _Mental function disability due to severe impairment of all cognitive functions loss of speech and other communication means amounts to 75 % whole body disability._ _Loco motor disability due to spastic quadriparesis and inability to use upper limbs focr any motor activity amounts to 75% ofWhole body disability_ _Severe bladder incontinence and need for continuous bladder_ MACA 1439/2013 4 _dralnage amounts to 75 % of whole body disability Total whole body permanent disability is calculated using - the formula a + b(100 a)/100 is 98.44 % (ninety eight decimal four four )”_ 3. The claim petition was filed before the Tribunal seeking compensation to the tune of Rs.32,91,000/- which was limited to Rs.25 Lakhs. The mother of the injured represented her in the proceedings based on the order dated 12.2.2013 in IA No.1152/2013. Before the Tribunal, the Medical Officer, who issued Ext.A1 disability certificate and the mother were examined as P.Ws.1 and 2 respectively. Exts.A1 to A23 were marked in support of the claim. The injured was brought before the Tribunal when the Tribunal could notice her plight like a vegetable in a wheel chair. The Tribunal awarded a sum of Rs.14,27,750/- along with interest at 8% per annum. 4. This appeal is filed seeking enhancement of compensation. According to appellant the amounts awarded under various heads including those of future treatment, expenses for byestander, nursing assistant, loss of amenities, etc and the notional income fixed are thoroughly inadequate. Learned counsel for the appellant relied upon a judgment of the Apex Court in **Kavitha v. Deepak and others** MACA 1439/2013 5 {(2012) 8 SCC 604} wherein the Apex Court awarded a sum of Rs.34,38,747/- in a similar case in which the injured, a 38 year old woman, incurred very serious disabilities and virtually become 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. The learned Counsel for the appellant therefore sought enhancement in the same manner. 5. The Learned Senior Counsel Sri. Mathews Jacob on the other hand vehemently opposed the claim for enhancement pointing out that the Tribunal has already granted just and fair compensation under all heads. 6. The Tribunal assessed the compensation reckoning her notional income as Rs.3,500/-, adopting the multiplier of 16 and reckoning the disability as 100% and awarded a sum of Rs.6,72,000/- MACA 1439/2013 6 towards disability compensation as well as loss of earning capacity. In this case, the injured is a housewife aged 35. Considering the inpatient treatment for a period of 84 days, the Tribunal awarded a sum of Rs.16,800/- towards bystander's expenses. In addition to that, a sum of Rs.3 lakhs was awarded towards charges for nursing assistant. Towards extra nourishment a sum of Rs.25,000/ and towards pain and suffering a sum of Rs.75,000/- have been awarded. A sum of Rs.5,000/- was awarded towards transportation charges. 7. Learned counsel for the appellant submitted that the compensation awarded towards transportation charges is thoroughly inadequate, while granting only a sum of Rs.5,000/- as against the claim for Rs.50,000/-. It is pointed out that the injured had to be taken to several hospitals several times, for which special mode of transportation was required in view of her condition. We find that the appellant had to be taken to various hospitals for various courses of treatments, as pointed out by the learned counsel for the appellant and as evident from the disability certificate also, right from the date of accident. The disability certificate shows that she needed recurrent admission in hospital for physiotherapy and injections. Therefore, we MACA 1439/2013 7 find it just to enhance the compensation under this head to Rs.20,000/-. The Tribunal has not granted any amount towards damage to clothing, even though a sum of Rs.1,000/- was claimed. Therefore we award a sum of Rs.1,000/- under this head. 8. The lifelong requirement for a personal attendant to attend to the primary needs of the injured is beyond any doubt or dispute. Apart from this she requires physiotherapy and continued medication. The disability certificate shows that she needs recurrent admission in hospital for physiotherapy and injections apart from the further requirement for lifelong medication including antisplaticity drugs. All these can be done only with the assistance of a nursing personnel, apart from the attendant. The pathetic plight of the injured in the vegetative condition is noticed by the Tribunal itself . PW1, the mother aged 70, has explained the difficulties in attending to her and in meeting the day to day expenses for the treatment. She has deposed that she has engaged a home nurse on a salary of Rs. 9,000/- per month and apart from this she has been incurring additional expenditure for nursing and her treatment right from the date of accident in 2007. The contention of the learned counsel for the appellant is that bystander expenses and MACA 1439/2013 8 expenses for nursing assistant shall be awarded for a period of 25 years as done in Kavitha's case (supra). The Tribunal has awarded only a sum of Rs.16,800/- towards bystanders' expenses, considering the number of days of inpatient treatment. A sum of Rs. 3 lakhs is awarded towards expenses for a Nursing Assistant. We are of the view that award of an additional sum of Rs.3 lakhs towards bystander's expenses (in addition to Rs.16800 already awarded by the Tribunal) and a sum of Rs. 3.5 lakhs towards expenses for nursing assistant, will be just in the circumstances of the case, considering the future requirement also of the appellant, rather than assessing compensation reckoning the expenses for 25 years. 9. The requirement to undergo physiotherapy, recurrent admission in hospital, continued lifelong medication, aid of catheter for drainage of urine, assistance of a person to attend to all her primary needs, etc, are proved through Ext A1 disability certificate and the testimony of PW2. The Tribunal has awarded only a sum of Rs.50,000/- for future treatment. Physiotherapy and continued medication is absolutely essential for sustenance of the injured. Apart from this there are expenses towards cathedral and other appliances. MACA 1439/2013 9 Therefore we find it fit to enhance the compensation under this head to Rs.3 lakhs i.e towards future treatment (physiotherapy). 10. The Tribunal has awarded a sum of Rs. 75,000/- under the head of pain and suffering. Having regard to the trauma already undergone by the injured and beinng experienced by her, the treatments being undergone eversince the date of accident, the tragic consequences which rendered her into the stage of a vegetable, as evident from Ext A1 explained supra and also as noticed by the Tribunal personally, we find it just to enhance the amount under the head of pain and suffering to Rs.2,00,000/- . We find that the claim in the petition under this head was only for Rs. 1 lakh, as pointed out by the learned Senior Counsel. But it is the duty of this court to award just compensation, for which the quantum claimed in the petition will not stand in the way in a case like this. 11. The Tribunal has already awarded a sum of Rs.6,72,000/towards compensation for disability, reckoning notional monthly income at the rate of Rs.3500/- and disability as 100%. Even though the learned Counsel for the petitioner submitted that the income reckoned is low, we are of the view that the same is reasonable. MACA 1439/2013 10 Towards loss of amenities, a sum of Rs.75,000/- only has been awarded. The entire life of the appellant is spoiled at the age of 35. The loss caused to her is beyond any valuation in terms of money. The discomforts and inconveniences caused to her are explained in Ext A1 and noticed by the Tribunal. She is deprived of all the enjoyments in life. Apart from that it is pointed out that she is given up by her husband and child. Having regard to the fact that the appellant has become completely disabled physically and mentally without even a remote chance to have any of the normal amenities of life of a normal human being in her life time, we find it just to grant an enhancement to a sum of Rs.3.5 lakhs towards loss of amenities/loss of enjoyment and shortened expectation of life. 12. As rightly pointed out by the learned Senior Counsel for the Insurance Company, we find that compensation awarded by the Tribunal under the head of mental sufferings to the tune of a sum of Rs.25,000/- is unwarranted and hence we delete that part of the award. Similar is the case with respect to the sum of Rs.42,000/- awarded by the Tribunal towards loss of earning. Since the appellant was a housewife, there is no question of any loss of her earnings. Therefore, MACA 1439/2013 11 we delete the compensation awarded under this head also. Accordingly the award of the Tribunal is modified as follows: |**_Head of claim_**|**_Amount awarded_**<br>**_by the Tribunal_**<br>**_(Rs)_**|**_Modified award_**<br>**_passed by this_**<br>**_Court (Rs)_**| |---|---|---| |Loss of earning|42000|deleted| |Medical expenses|141922|141922| |Future treatment|50000|300000| |Bystander expenses<br>Nursing assistant|16800<br>300000|316800<br>350000| |Transportation expenses|5000|25000| |Damage to clothing||1000| |Extra nourishment|25000|25000| |Pain and suffering|75000|200000| |Disability|672000|672000| |Loss of amenities/loss of<br>enjoyment in life/shortened<br>expectation of life|75000|350000| |Mental sufferings|25000|deleted| |||2381722 (rounded<br>off to 2381700)| (Rupees Twenty-three lakhs eightyone thousand seven hundred only) 9. The Tribunal has directed to deposit 70% of the award amount in the name of the appellant for a period of two years and to release the remaining amount for the benefit of the appellant. It is seen that the two years period fixed by the Tribunal will be over by April, 2015. We therefore direct that 70% of the enhanced compensation including the MACA 1439/2013 12 amount presently in deposit will be kept in fixed deposit in a nationalised bank for a further period of three years. The remaining 30% can be withdrawn by the mother for the benefit of the appellant. She will be free to withdraw the interest portion of the amount deposited in the bank also for the benefit of the appellant/injured. The enhanced amount will carry interest at 9% from the date of petition. The insurance company is directed to deposit the amount of compensation less the amount already deposited before the Tribunal, within a period of three months. Having regard to the plight of the appellant, we grant liberty to the parties to move the Tribunal for variation regarding the deposit of amount, as and when necessary. The appeal is allowed as above. No costs. ## **(T.R. RAMACHANDRAN NAIR, JUDGE.)** ## **(P.V. ASHA, JUDGE.)** ## **kav/**