MACA Nos. 3075 of 2015 and 2542 of 2015, High Court of Kerala at Ernakulam

# **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. 2542 OF 2015** **AGAINST THE ORDER/JUDGMENT OPMV 1447/2007 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA / I ADDL.** **M.A.C.T.** ## **APPELLANT/3RD RESPONDENT:** THE NEW INDIA ASSURANCE COMPANY LIMITED PATHANAMTHITTA, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENT/PETITIONER:** ANAS P.M. S/O.MEERA SAHIB, PAZHAYAVEETTIL, PETTA, VETTIPURAM MURI, PATHANAMTHITTA.P.O., PIN-689 320. BY ADV SRI.A.N.SANTHOSH ## **OTHER PRESENT:** SRI.A.N.SANTHOSH , SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.10.2023, ALONG WITH MACA.3075/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 M.A.C.A Nos. 3075 and 2542 of 2015 ## **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. 3075 OF 2015** **AGAINST THE ORDER/JUDGMENT OPMV 1447/2007 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA / I ADDL.** **M.A.C.T.** ## **APPELLANT/PETITIONER:** ANAS P.M. S/O.MEERA SAHIB, PAZHAYAVEETTIL, PETTA, VETTIPURAM MURI, PATHANAMTHITTA P.O., DISABLED PERSON, REPRESENTED BY HIS NATURAL GUARDIAN, MOTHER, SAINA BEGUM. BY ADV SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS 2 AND 3:** 1 BINU.K.MATHEW M/S.PANACHIYIL INDUSTRIES, WEST OTHERA P.O., THIRUVALLA-689551. 2 THE BRANCH MANAGER NEW INDIA ASSURANCE CO.LTD., COLLEGE ROAD, PATHANAMTHITTA-689645. BY ADVS. N.JAMES KOSHY SRI.P.JACOB MATHEW P.JACOB MATHEW MATHEWS JACOB (SR.) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.10.2023, ALONG WITH MACA.2542/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 M.A.C.A Nos. 3075 and 2542 of 2015 ## **JUDGMENT** These appeals arise from the award dated 05.03.2015 in O.P. (MV).No.1447/2007 passed by the Motor Accidents Claims Tribunal, Pathanamthitta. MACA.No.3075/2015 is submitted by the claimant, whereas MACA.No.2542/2015 is submitted by the insurance company, 3[rd] respondent in the claim petition. For convenience, the parties of these appeals are referred to based on their respective ranks in the claim petition. 2. The facts which led to the filing of these appeals are as follows: The claim petition was submitted by the petitioner seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.07.2007 when the motorcycle ridden by him was hit by a tipper lorry bearing registration No.KL-03 D 9145. The said tipper lorry was being driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. According to the petitioner, he was working in a private firm with a monthly income of Rs.8,000/- and was aged 22 years at the time of the accident. The injuries he sustained resulted in physical disablement, which was certified as 90% by the Medical Board. 4 M.A.C.A Nos. 3075 and 2542 of 2015 The claim petition was submitted by him in such circumstances, seeking a total compensation of Rs.40,00,000/-. 3. The 3[rd] respondent Insurance Company alone contested the matter. They filed a written statement admitting the coverage of the policy but disputed the liability on various grounds. The negligence, as well as the quantum of compensation, were also seriously disputed by them. 4. The evidence in this case consists of oral evidence of PW1 and PW2 and Exts.A1 to A23. The report of the Advocate Commissioner appointed by the Tribunal for examining the physical condition of the body of the petitioner was marked as Ext.C1. 5. After examining 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 lorry and being the insurer of the vehicle, the 3[rd] respondent Insurance Company was held liable to pay the compensation. The quantum of compensation was determined as Rs.35,29,566/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition till 5 M.A.C.A Nos. 3075 and 2542 of 2015 realisation. These appeals are submitted in such circumstances, challenging the said award. 6. Heard Sri.A.N.Santhosh, learned counsel for the appellant and Sri.P.Jacob Mathew, learned Senior Counsel for the 3[rd] respondent Insurance Company. 7. The learned Senior Counsel contended that the amount of compensation awarded under the head of physical disability was on the higher side. He disputes the monthly income taken as Rs.8,000/- and also challenges the 100% functional disability taken by the Tribunal for assessment of compensation on the ground that the percentage of disability certified by the Medical Board was only 90%. 8. The learned counsel for the petitioner, on the other hand, would contend that, to substantiate the monthly income, Salary Certificate was produced, and the mother of the petitioner was also examined. It is discernible from the said evidence that the monthly income of the petitioner was Rs.8,400/-, but the Tribunal took it as only Rs.8,000/-. 9. When going through the materials placed on records, including the Ext.A19 certificate produced by the petitioner, it is 6 M.A.C.A Nos. 3075 and 2542 of 2015 evident that he was a B.Com graduate and Ext.A13 would indicate that he was working in a shop. Considering the educational qualification of the petitioner and the Ext.A13 Salary Certificate, I am of the view that the monthly income of Rs.8000/- was highly probable, and therefore, I do not find any necessity to interfere in the same. 10. When coming to the question of taking the functional disability as 100%, I am of the view that the materials placed on record would justify the said finding. Even as per the Medical Certificate issued by the Medical Board, he sustained 90% physical disability. Before the Tribunal, the Advocate Commissioner was appointed to report the physical condition of the petitioner, and after such inspection, Ext.C1 report was produced. It is discernible therefrom that the petitioner is in a completely vegetative stage, and he does not even have any control over his bowel movements. Besides the same, in the award itself, the condition of the petitioner has been clearly mentioned in paragraph 7 thereon. By referring to the Ext.P12 Disability Certificate, it was observed that the petitioner has decreased memory, severe dysarthria, severe incontinence for urine and fever. He has altered behaviour and 7 M.A.C.A Nos. 3075 and 2542 of 2015 orientation. This would indicate the pathetic condition of the petitioner, and the said condition would undoubtedly suggest that he is unable to pursue any avocation. He is not even fit to take care of his fundamental and primary needs as well. Therefore, I do not find any discrepancy in the finding of the Tribunal in fixing the functional disability as 100%, mainly because he requires the assistance of another person to attend to his daily pursuits. Therefore, the contention put forward by the learned counsel for the 3[rd] respondent /Insurance Company is only to be rejected. 11. When considering the quantum of compensation awarded under the head of permanent disablement, the only aspect which stands in favour of the 3[rd] respondent/Insurance Company is the addition made by the Tribunal towards the future prospects of the petitioner, which was 50%. As per the principles laid down in **National Insurance Company Vs. Pranay Sethi** [2017 (16) SCC 680], the addition should have been 40% only. Therefore, the compensation has to be reworked by limiting the addition to 40% of the monthly income, and thereupon the amount would come to Rs.24,19,200/- [(8000 + 40%) x 12 x 100 x 18/100]. The amount already awarded by the Tribunal is 8 M.A.C.A Nos. 3075 and 2542 of 2015 Rs.25,92,000/- and therefore, the excess amount under this head would come to Rs.1,72,800/-. 12. The learned counsel for the petitioner would point out that the petitioner is wholly bedridden, and there is no possibility of any recovery as well. As observed above, the physical condition of the petitioner is very much evident from the deposition of PW1 and Ext.C1 report, the contents of which would fortify the contentions raised by the learned counsel for the petitioner in this regard. Necessarily, he requires the assistance of a person throughout his life, even for his basic needs, and the said aspect cannot be ignored. Therefore, some amount has to be set apart for the expenses to be incurred for availing the assistance of a person for attending to his needs. As rightly pointed out by the learned counsel for the appellant, in **Kajal v. Jagdish Chand** [2020 ACJ 1042], the aforesaid question was considered by the Hon’ble Supreme Court and in the said decision, the attendance charges were granted in the said case for two persons simultaneously, by fixing the monthly expenses as Rs.5,000/- per person and thereby calculating it at the rate of Rs.10,000/- per month for a period of 18 years(as per multiplier). In this case, the 9 M.A.C.A Nos. 3075 and 2542 of 2015 facts and circumstances of the case would indicate that the petitioner was being looked after by his mother, and evidently, she was prevented from carrying out any other avocation, and she had to spend a considerable time taking care of him. Therefore, some amount has to be granted under the head of attendant expenses. In the light of the decision of the Hon’ble Supreme Court in **Kajal** 's case (supra), Rs.5,000/- per month can be taken, and the compensation can be granted by applying a multiplier of 18, which is the proper multiplier as per the age of the petitioner. Therefore, the amount under said would come to Rs.10,80,000/-. 13. The next aspect relates to compensation under the head of pain and suffering, and loss of amenities. The learned counsel for the 3[rd] respondent/ Insurance Company opposes any enhancement under these heads by pointing out that the Tribunal has already awarded Rs.1,00,000/- each under these heads, which is reasonable. It is pointed out by placing reliance upon **Lalan D @ Lal vs. Oriental Insurance Company** [2020 4 SCC 413] that when compensation for physical disability was granted by taking 100% functional disability, there is no necessity for giving any compensation for loss of amenities. It is evident from **Lalan** 's 10 M.A.C.A Nos. 3075 and 2542 of 2015 case (supra) that the Hon’ble Supreme Court made the said observations after referring to the decision in the **Raj Kumar vs. Ajay Kumar & Another** [2011 (1) SCC 343]. However, the Hon’ble Supreme Court in **Kajol’s** case, even after referring to **Raj Kumar's** case (supra), considered the specific question regarding the amount to be awarded for loss of amenities and pain and suffering and a total amount of Rs.15,00,000/- was granted in the facts and circumstances of that case. Of course, it was observed that such an amount was awarded in the peculiar facts and circumstances of that case. 14. Therefore, after considering all the aforesaid observations and applying the said principles, in the facts and circumstances of this case, I am of the view that the amount to be awarded should not be confined to a notional amount but a reasonable and realistic amount to address the requirement which is clearly reflected from the evidence adduced in this case. Here again, the contents of the deposition of PW1 and Ext.C1 report have to be given due emphasis. Evidently, the petitioner is in a vegetative stage, and he does not have any proper memory, does not have any adequate control of his organs and is unable to move 11 M.A.C.A Nos. 3075 and 2542 of 2015 without the help of any person. The petitioner was subjected to this unfortunate accident at the age of 23, and consequent to the same, he is deprived of all enjoyments and pleasures of his life. Therefore, the said aspect is necessarily to be compensated while considering the compensation for loss of amenities, and the same cannot be denied merely because of the reason that the compensation was granted for disability. This view taken by me is fortified by the observations made by the Hon’ble Supreme Court in **Kajal** ’s Case (supra). Therefore, I am of the view that, in the facts and circumstances of the case, a total amount of Rs.8,00,000/- is to be granted under the heads of pain and suffering and loss of amenities combined together. 15. The Tribunal has awarded compensation for bystander expenses as Rs.20,000/-, whereas the claim put forward in this regard was Rs.24,000/-. However, it is discernible from the records that the petitioner had availed of inpatient treatment in various hospitals for a total period of 203 days, stretching over four years. Even if an amount of Rs.250/- per day is taken as the expenses for attendance, the amount would come to Rs.50,750/and I deem it appropriate to fix the said amount under the said 12 M.A.C.A Nos. 3075 and 2542 of 2015 head. Therefore, after deducting the amount already granted, the additional amount would come to Rs.30,750/ (50,750-20,000). 16. Similarly, the amount claimed under the head of Extra nourishment was Rs.25,000/-, whereas the amount awarded is only Rs.5,000/-. Considering the physical condition of the petitioner, I am of the view that the entire claim of Rs.25,000/- is reasonable, and the same is accordingly awarded. 17. Another aspect to be noticed is that along with M.A.C.A 3075/2015, the petitioner produced Annexures. A1 to A87, which are the medical bills towards expenses incurred by him. The total amount would come to Rs.45,630/-. The learned counsel for the petitioner would point out that an amount of Rs.50,000/- is already awarded by the Tribunal. However, I am of the view that that cannot be a reason to deny some additional amount under the head of future treatment in the peculiar facts and circumstances of the case. Evidently, the petitioner is in a vegetative stage and may incur expenses for treatment throughout his life. Therefore, Rs.50,000/- already awarded is not sufficient, and thus, I deem it appropriate to grant a further sum of Rs.50,000/- under this head. 13 M.A.C.A Nos. 3075 and 2542 of 2015 18. It was pointed out by the learned counsel for the appellant that after awarding compensation for disability by taking the functional disability as 100%, the Tribunal again awarded loss of earnings for a period of 27 months, which amounts to duplication, contends the learned counsel for the insurance company. According to the learned counsel, compensation for loss of earnings need not be granted, as the compensation for disability is calculated at 100% for taking the said amount as well. However, I am not inclined to accept the said contention completely. The compensation for loss of earnings represents the actual loss incurred, whereas the compensation for disability and consequent loss of earning capacity is an anticipated damage, which operates in a different field. Therefore, merely because of the fact that the compensation for disability and consequent loss of earning capacity was awarded by taking the functional disability as 100%, that would not preclude the Tribunal from granting a reasonable amount under the head of loss of earnings as well, as the said compensation is to address the sudden loss occurred in his income consequent to the inability of the victim to pursue the avocation which he was engaged in at the time of the accident. In 14 M.A.C.A Nos. 3075 and 2542 of 2015 the facts and circumstances of the case, I am of the view that compensation for one year would be reasonable, and the same can be revised accordingly. Therefore, the amount payable under this head is determined as Rs.96,000/- (8000 x 12). The amount already awarded by the tribunal under this head is Rs.1,92,000/-. Therefore, an amount of Rs.96,000/- is to be deducted. 19. Thus, in the light of the aforesaid observations and findings, a total amount of compensation is determined as Rs.16,64,950/-. [(10,80,000 + 8,00,000 + 30,750 + 25,000 + 50,000) – (96,000 + 1,72,800 + 52,000)]. In the light of the above, these appeals are disposed of by modifying the award dated 05.03.2015 in OP.(MV) No.1447/2007 passed by the Motor Accidents Claims Tribunal, Pathanamthitta, by granting an additional compensation of Rs.16,66,950/- (Rupees sixteen lakhs sixty six thousand nine hundred and fifty only) and directing the 3[rd] respondent in the claim petition to deposit the said amount except the compensation under the heads of future treatment and future attendant charges, along with interest @ 8% per annum from the date of the petition till realisation. The learned counsel for the appellant-insurance company would point out that as 15 M.A.C.A Nos. 3075 and 2542 of 2015 regards the amount awarded under the heads of future treatment and the expenses for future attendant charges, the interest is to be granted only from the date of award. Considering the abovementioned facts, the said contention is accepted and the interest payable in respect of the amounts awarded under the heads of attendant expenses of Rs.10,80,000/- and Rs.50,000/- for future treatment expenses shall be payable with interest at the rate of 8% per annum, from the date of the award. Sd/- **ZIYAD RAHMAN A.A JUDGE** DG/rpk 16 M.A.C.A Nos. 3075 and 2542 of 2015 The following corrections are carried out in the common judgment dated 04.10.2023 in MACA 2542/2015 and MACA 3075/2015 as per order dated 12.01.2024 in I.A 1/2023 in MACA 2542/2015. A) The amount of Rs.8,00,000/- under the head of Pain and Suffering and Loss of Amenities was the total amount, and after deduction Rs.1,00,000/- each granted by the Tribunal under the said heads, the additional amount would come to Rs.6,00,000/-. B) In paragraph 16 of the judgment, while calculating the total amount Rs.25,000/- was added as the additional amount towards Extra Nourishment whereas the said amount was inclusive of Rs.5,000/- already awarded by the Tribunal. Therefore, the actual enhancement was Rs.20,000/- only. C)While deducting the compensation for Loss of Expectation of Life which was actually Rs.50,000/- the actual deduction made while computing the final amount was Rs.52,000/-. Hence, the final amount in the operative portion of the judgment is corrected as 14,61,950/-[10,80,000 + 6,00,000 + 30,750 + 20,000 + 50,000) – (96,000+1,72,800 + 50,000)]. The total amount stands corrected as Rs.14,61,950/-. Similarly, final 17 M.A.C.A Nos. 3075 and 2542 of 2015 figure shown in the judgment Rs.16,66,950/- is corrected as Rs.14,61,950/- (Rupees fourteen lakhs sixty one thousand nine hundred and fifty only). Sd/- DEPUTY REGISTRAR