MACA 756 of 2015 & MACA 806 of 2015: The Oriental Insurance Co. Ltd. v. Jibin John and Yohannan K.G.

``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 ``` ``` MACA NO. 756 OF 2015 ``` ``` AGAINST THE AWARD DATED 23.07.2014 IN OP(MV)NO.1238/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PATHANAMTHITTA ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` THE ORIENTAL INSURANCE CO.LTD THIRUVALLA,REPRESENTED BY ITS REGIONAL MANAGER,REGIONAL OFFICE,ERNAKULAM NORTH,KOCHI-18. ``` ``` BY ADVS. GEORGE CHERIAN (SR.) ALEXY AUGUSTINE LATHA SUSAN CHERIAN K.S.SANTHI ``` ## **`RESPONDENTS/CLAIMANTS:`** ``` 1JIBIN JOHN S/O.YOHANNAN.K.G,ANANDHABHAVANAM,THUVAYOOR SOUTH.P.O,KADAMABANADU,PIN-691552. ``` ``` 2YOHANNAN.K.G S/O.K.M.GEORGE,ANANDHABHAVANAM,THUVAYOOR SOUTH.P.O,KADAMBANADU,PIN-691552. ``` ``` BY ADV SRI.A.N.SANTHOSH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.10.2023, ALONG WITH MACA.806/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 ``` ## **`MACA NO. 806 OF 2015`** ``` AGAINST THE AWARD DATED 23.07.2014 IN OP(MV)NO.1238/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PATHANAMTHITTA ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1JIBIN JOHN, S/O.YOHANAN K.G, ANANDA BHAVANAM, THUVAYOOR SOUTH P.O, KADAMBANADU PATHANAMTHITTA, REPRESENTED BY HIS FATHER YOHANAN K.G. ``` ``` 2YOHANNAN K.G. ANANDA BHAVANAM, THUVAYOOR SOUTH P.O, KADAMBANADU PATHANAMTHITTA. ``` ``` BY ADV SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS 2 AND 3:`** ``` 1USHA RAJAN, PALLICKA VEEDU, KAIPPATTOOR P.O, PATHANAMTHITTA 689648. ``` ``` 2THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO. LTD., MARTHOMA BUILDING THIRUVALLA - 689 101. ``` ## `SMT.LATHA SUSAN CHERIAN` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.10.2023, ALONG WITH MACA.756/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` ## ZIYAD RAHMAN, A.A, J M.A.C.A Nos. 756 & 806 of 2015 th Dated this the 4 day of October, 2023 ## JUDGMENT These appeals arise from the award dated 23.07.2014 passed by the MACT, Pathanamthitta, in OP(MV)No.1238/2008. MACA No.806/2015 is submitted by the claimants in the Original Petition seeking enhancement of compensation, whereas MACA No. 756/2015 is submitted by the third respondent-Insurance Company, challenging the quantum of compensation awarded. For convenience, the parties herein are referred to as per the respective ranks in the claim petition. 2. The facts which led to the appeals are as follows: The claim petition was submitted, seeking st compensation for the injuries sustained by the 1 petitioner in st an accident that occurred on 13.04.2008. The 1 petitioner was a boy aged 17 years and a plus-two student at the time of the accident. According to him, the accident occurred when the 4 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` motorcycle on which he was travelling was hit by a stage carriage bearing Registration No.KL-03-P-6310 driven by the first respondent, owned by the second respondent and insured with the third respondent. Due to the impact of the accident, st serious injuries were sustained by the 1 petitioner, which resulted in permanent disablement, certified as 82% by the Medical Board. The claim petition was submitted in such circumstances seeking a total compensation of Rs.25,00,000/-. 3. The third respondent-Insurance Company alone, contested the matter by filing a written statement. Even though they admitted the coverage of policy for the said vehicle, they disputed the liability on various grounds and contended that there was a violation of policy conditions. The negligence and the quantum of compensation were also seriously disputed by them. The said claim petition was tried along with OP(MV)No.1206/2008, submitted by another person who was also the victim of the very same accident. 5 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` 4. The evidence in these cases consists of oral evidence of Pws 1 to 3 and Exts.A1 to A50 from the side of the claimants. No evidence was adduced from the side of the respondent. 5. After appreciating the materials placed on record, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the stage carriage and being the insurer of the said vehicle, the third respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.35,85,697/- and the third respondent was directed to deposit the said amount along with interest @ 9% per annum from the date of petition till realisation. These appeals are filed in such circumstances 6. Heard Sri.A.N.Santhosh, learned counsel appearing for the claimants, who are also the appellants in MACA No.806/2015 and Smt.Latha Susan Cherian, learned standing counsel appearing for the third respondent-Insurance Company, 6 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` who is also the appellant in MACA No.756/2015. 7. The main contention put forward by the claimants, while seeking enhancement of compensation, is under the head of loss of earning capacity owing to permanent disability. According to him, Rs.21,60,000/- awarded by the Tribunal is on the lower side. On the other hand, the learned counsel appearing for the third respondent-Insurance Company, challenges the finding of the tribunal in this regard and seeks reduction of compensation under the said head. It was pointed out by the learned counsel for the third respondent-Insurance Company, that, for the purpose of calculating the compensation, the Tribunal had taken a monthly income of Rs.10,000/- which was on the higher side. But the learned counsel for the petitioner would point out that, in Mekala v Malathi [2014 (3) KLT Suppl. 105 (SC)] , the Hon’ble Supreme Court had taken the monthly income of the victim, who was a plus one student, as Rs.10,000/-. It was pointed out that the ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` **==> picture [7 x 9] intentionally omitted <==** appeal in the said case was of the year 2008. In this case, it st is discernible from the records that the 1 petitioner was a plus-one student. Exts.A20 to A38 were relied on to st substantiate the merit of the 1 petitioner. Those documents st relate to the certificates received by the 1 petitioner for merit in his studies and extracurricular activities. As rightly pointed out by the learned counsel for the petitioners, the aforesaid st documents would undoubtedly indicate the high merit of the 1 petitioner, and consequent to the injuries, he was deprived of all such activities as the disability sustained to him was 82% for which the Tribunal had already taken a functional disability of 100%. Moreover, it is also evident from the records that st the 1 petitioner is now wheelchair-bound, and even the daily day-to-day affairs were carried out with the help of the other persons. Thus, considering all these relevant aspects, I am of the view that an amount of Rs.10,000/- taken by the Tribunal is reasonable, as it is perfectly in tune with the decision 8 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` rendered by the Hon’ble Supreme Court mentioned in Mekala’s case . 8. The next aspect highlighted by the learned counsel for the petitioners is that since the Tribunal has taken 100% functional disability, future prospects ought to have been taken into account. To support the said contention, the learned counsel also relied upon Kajal Vs Jagdeesh Chand 2020 (1) KHC 743, wherein the Hon’ble Supreme Court made an addition towards the future prospects in similar circumstances. st I find some force in the said contention. The 1 petitioner sustained severe injuries, making him physically incapacitated completely, at the age of 17 years. He has to live with the disability throughout his life. When considering the merits of st the 1 petitioner in the studies and other extracurricular activities, as is discernible from the records referred to above and the serious deprivation of growth in his career and life that was caused consequent to the disability, I am of the view 9 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` that the failure to make any addition towards future prospects would be against the interest of justice. Therefore, 40% of the income can be added towards future prospects, as held in Kajal’s case. When reassessing the compensation for disability and consequent loss of earning capacity, the amount receivable under the said head would come to Rs.30,24,000/- [(10,000 + 40%) X 12 X 18 ]. After deducting Rs.21,50,000/- already awarded by the Tribunal, the additional amount would come to Rs.8,64,000/-. 9. The next aspect highlighted by the learned counsel for the petitioners is the compensation under the head of the future attendant charges. In support of the claim in this regard, the learned counsel for the petitioners again relied on the decision rendered by the Hon’ble Supreme Court in Kajal’s case (Supra). He also brought to the attention of this court the observations made in Jithendran Vs New India Insurance Company (2021(6) KLT Online 1131 (SC)= 2021 (4) KLJ 646). ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` 10 After considering all the material aspects, I am of the view that some amount is to be granted under the head. As rightly pointed out by the learned counsel for the petitioner, in Jithendran’s case (supra), the following observations were made by the Hon’ble Supreme Court. 7.2. Insofar as the claim for expenses for a bystander/attendant, the learned counsel submits that no material is produced by the claimant on the actual expenses incurred for service of attendant and accordingly it is argued that no further claim is merited under this head. 8. As earlier noted, the appellant has suffered 69% permanent disability and without assistance, cannot perform everyday functions. The claimant with seriously impaired cognitive and physical capabilities would surely need full time assistance even for the confined life that he is leading. In such circumstances, the disabled claimant cannot be expected to rely only upon gratuitous services 11 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` of his well-wishers and family members. Importantly, the presiding judge in the Tribunal himself noticed that the claimant would require the assistance of a bystander/attendant for all his movements. Consequently, bearing in mind the need for assisted living and what was said in Kajal v. Jagdish Chand, it is found necessary to add the expenses for service of an attendant for the claimant. Since no material is produced to quantify the expenses for the attendant, making a conservative estimate, Rs. 5,000/- per month appears to be the bare minimum. It is therefore deemed appropriate to quantify the annual expenses at Rs. 60,000/- and applying the multiplier of 18, the additional compensation payable under the bystander head is quantified at Rs. 10,80,000/-. 10. In Kajal’s case, the question of attendance charges to be granted was specifically considered by the Honorable 12 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` Supreme Court in the manner as follows: ## “Attendant charges 22. The attendant charges have been awarded by the High Court @ Rs 2500 per month for 44 years, which works out to Rs 13,20,000. Unfortunately, this system is not a proper system. Multiplier system is used to balance out various factors. When compensation is awarded in lump sum, various factors are taken into consideration. When compensation is paid in lump sum, this Court has always followed the multiplier system. The multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges, etc. This system was recognised by this Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami [Gobald Motor Service Ltd. v. R.M.K. Veluswami, AIR 1962 SC 1] . The multiplier system factors in the inflation rate, the 13 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` rate of interest payable on the lump sum award, the longevity of the claimant, and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognised as the most realistic and reasonable method. It ensures better justice between the parties and thus results in award of “just compensation” within the meaning of the Act. 23. It would be apposite at this stage to refer to the observation of Lord Reid in Taylor v. O'Connor [Taylor v. O'Connor, 1971 AC 115 : (1970) 2 WLR 472 (HL)] : (AC p. 128) “Damages to make good the loss of dependency over a period of years must be awarded as a lump sum and that sum is generally calculated by applying a multiplier to the amount of one year's dependency. That is a perfectly good method in the ordinary case, but it conceals the fact that 14 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` there are two quite separate matters involved **—** the present value of the series of future payments, and the discounting of that present value to allow for the fact that for one reason or another the person receiving the damages might never have enjoyed the whole of the benefit of the dependency. It is quite unnecessary in the ordinary case to deal with these matters separately. Judges and counsel have a wealth of experience which is an adequate guide to the selection of the multiplier and any expert evidence is rightly discouraged. But in a case where the facts are special I think that these matters must have separate consideration if even rough justice is to be done and expert evidence may be valuable or even almost essential. The special factor in the present case is the incidence of income tax and, it may be, surtax.” 15 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` 24. This Court has reaffirmed the multiplier method in various cases like MCD v. Subhagwanti [MCD v. Subhagwanti, AIR 1966 SC 1750 : 1966 ACJ 57], U.P. SRTC v. Trilok Chandra [U.P. SRTC v. Trilok Chandra, (1996) 4 SCC 362] , Sandeep Khanuja v. Atul Dande [Sandeep Khanuja v. Atul Dande, (2017) 3 SCC 351 : (2017) 2 SCC (Civ) 276 : (2017) 2 SCC (Cri) 178]. This Court has also recognised that Schedule II of the Act can be used as a guide for the multiplier to be applied in each case. Keeping the claimant's age in mind, the multiplier in this case should be 18 as opposed to 44 taken by the High Court. 25. Having held so, we are clearly of the view that the basic amount taken for determining the attendant charges is very much on the lower side. We must remember that this little girl is severely suffering from incontinence, meaning that she does not have control over her bodily functions like passing urine and feces. As she grows older, 16 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` she will not be able to handle her periods. She requires an attendant virtually 24 hours a day. She requires an attendant who though may not be medically trained but must be capable of handling a child who is bedridden. She would require an attendant who would ensure that she does not suffer from bedsores. The claimant has placed before us a notification of the State of Haryana of the year 2010, wherein the wages for skilled labourer is Rs 4846 per month. We, therefore, assess the cost of one attendant at Rs 5000 and she will require two attendants which works out to Rs 10,000 per month, which comes to Rs 1,20,000 p.a., and using the multiplier of 18, it works out to Rs 21,60,000 for the attendant charges for her entire life. This takes care of all the pecuniary damages.” In this case, the specific contention put forward by the learned counsel for the petitioner is by placing reliance upon 17 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` st the deposition of PW1, which indicates that the 1 petitioner is wholly bedridden and the parents of the petitioner are required to attend him 24x7 hours for enabling the petitioner pursuing st his day to day activities. The evidence of PW1, the 1 petitioner's father, would further indicate that he cannot pursue his avocation regularly as he has to attend to him throughout the day. According to him, the mother of the petitioner has to assist him in handling the petitioner. Therefore, it is pointed out that since too much time is required to attend to the petitioner, it adversely affects the income of the family as such. The aforementioned aspects st cannot be ignored while considering the claim made by the 1 st petitioner in this regard. The 1 petitioner’s parents, who are the earning members of the family, are compelled to spend considerable time looking after him and are therefore prevented from getting engaged in any employment with st remuneration. Substantial time is spent with the 1 petitioner ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` 18 to help him carry out his day-to-day affairs. Therefore, necessarily a reasonable amount towards attendance expenses has to be granted. As rightly pointed out by the learned counsel for the petitioner in Kajal’s case, the Hon’ble Supreme Court specifically considered the said question in respect of a girl aged 12 years, whose functional disability was 100% and granted attendance charges by holding that she requires two persons on a daily basis. The expenses incurred for one person were taken as Rs.5,000/- and thus Rs.10,000/- per month for two persons were taken, and the compensation was granted by applying the multiplier applicable to the age of the victim. 11. At this juncture, the learned counsel appearing for the Insurance Company would point out that the method of calculation as contemplated in Kajal’s case cannot be made applicable in this case. The distinction sought to be made by the learned counsel for the Insurance Company is that, in 19 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` Kajal’s case , the monthly income taken was only Rs.5000/-, even though the accident occurred in the year 2007. In this case, the accident occurred in 2008, and the monthly income fixed is Rs.10,000/-. Since a substantial amount was granted as disability compensation, such a high amount by taking the expenses for two attendance cannot be granted, it was contended. On considering the facts and the circumstances of the case, I find that the said contention cannot be simply brushed aside. It is necessarily a relevant aspect to be taken into consideration. Therefore, I deem it appropriate to grant attendance charges for a single person, and the expenses for the same can be treated as Rs.5000/- per day. While calculating the compensation by treating the monthly expenses as Rs.5000/-, the amount to be awarded under this head would come to Rs.10,80,000/- (5000 X 12 X 18). 12. Another aspect pointed out by the learned counsel for the petitioner is the compensation awarded for loss of 20 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` amenities and pain and suffering. The amounts under the said heads are Rs.2,00,000/- and Rs.1,00,000/- respectively. Again, the learned counsel for the petitioner would rely on the observation made by the Hon’ble Supreme Court in Kajal’s case at para 26 therein. It is pointed out that in the said decision that, the Hon’ble Supreme Court granted an amount of Rs.15,00,000/- towards pain and suffering and loss of amenities, taking note of the physical condition of the victim therein. In this case, it is seen from the records that the amount claimed under these heads was Rs.5,00,000/- each. Considering the physical conditions of the petitioner, I am of the view that an enhancement is necessary, and the entire claim made under these head can be awarded. Therefore, the additional amount receivable by the appellant under both the said heads combined together would come to Rs.7,00,000/-. The learned counsel for the insurer also relied on the decision rendered by the Hon’ble Supreme Court in Lalan D Alias Lal 21 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` and another Vs. Oriental Insurance Company 2020(9) SCC 805. It was pointed out that in the said decision, after relying on the decision rendered by the Hon’ble Supreme Court in Rajkumar Vs Ajayakumar 2011 (1) SCC 343, it was observed that when compensation is awarded by taking the disability as 100% or even anything more than 50%, there is no need to award compensation separately under the heads of loss of amenities and enjoyment of life. However, I have granted an amount of Rs.7,00,000/-for pain and suffering and loss of amenities together, considering the peculiar nature of the case and also taking note of the pathetic condition of the life of the st 1 petitioner as is discernible from the evidence of PW1 and other medical records, which remains uncontroverted. The observations made by the Honourable Supreme Court in Kajal’s case (supra) and the amounts awarded under these heads would fortify the view taken by this court, particularly because the factual circumstances in this case are similar to that of the 22 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` said case. 13. The learned counsel for the third respondentInsurance Company, would point out that the tribunal has awarded an amount of Rs.50,000/- towards loss of life expectancy. According to the learned counsel, since the disability compensation was calculated at 100%, the same could not have been granted. I find some force in the said contention. When the compensation for disability is granted for 100% disability for the entire period of the multiplier, any further amount for loss of life expectancy was not proper. Therefore, the said amount is deducted. In such circumstances, the total amount receivable by the appellant is determined as Rs.25,94,000/- (8,64,000 + 10,80,000 + 7,00,000 – 50,000). 14. In the light of the observations and findings as above, these appeals are disposed of by modifying the award dated 23.07.2014 on the files of the Motor Accidents Claims 23 ``` MACA NO. 756 OF 2015 & MACA NO. 806 OF 2015 ``` Tribunal, Pathanamthitta in OP(MV)No.1238/2008 by granting an additional compensation of Rs.25,94,000/- (Twenty five lakhs and ninety four thousand only) to the petitioner and it is ordered that the third respondent-Insurance Company shall deposit the said amount with interest @ 8% per annum within a period of three months from the date of receipt of a copy of this judgment. These appeals are disposed of accordingly. sd/- ZIYAD RAHMAN, A.A, JUDGE R.AV