MACA Nos.1450/2014 & 1687/2014, Sojan P.V. v. Reliance General Insurance Co. Ltd.

MACA.Nos.1450/14 & 1687/14 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945_ ## _MACA NO. 1450 OF 2014_ _AGAINST THE ORDER/JUDGMENT OPMV 501/2009 OF MOTOR ACCIDENT CLAIMS_ _TRIBUNAL, IRINJALAKUDA_ ## _APPELLANT/PETITIONER:_ _SOJAN P.V., S/O.VARGHESE, POTTEPARAMBIL HOUSE, KOZOOR PARAPPURAM DESOM, KAKKULISSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH_ ## _RESPONDENTS/RESPONDENTS:_ - _1 JOSE N.D., S/O.DEVASSY, NEDUVELIKUDY HOUSE, KUTTIKAD DESOM, MUKUNDAPURAM TALUK-680 721._ _2 RELIANCE GENERAL INSURANCE CO. LTD, OPP.NEW RAILWAY, VANCHIKULAM ROAD, POOTHOLE P.O., THRISSUR. BY ADVS. SRI.K.M.RAPHY SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI_ ## _ADV.JOSEPH GOPURAN_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2024, ALONG WITH MACA.1687/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.Nos.1450/14 & 1687/14 2 _IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945_ ## _MACA NO. 1687 OF 2014_ _AGAINST THE ORDER/JUDGMENT OPMV 501/2009 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL , IRINJALAKUDA_ ## _APPELLANT/3RD RESPONDENT._ _RELIANCE GENERAL INSURANCE CO. LTD., THRISSUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM._ _BY ADVS.SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI_ ## _RESPONDENT/CLAIMANT:_ _SOJAN P.V., S/O.VARGHESE, POTTEPARAMBIL HOUSE, KUZHUR PARAPPURM DESOM, KAKKULISSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT PIN 680 001._ _BY ADV.SRI.A.N.SANTHOSH_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2024, ALONG WITH MACA.1450/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.Nos.1450/14 & 1687/14 3 ## **JUDGMENT** ## **[MACA Nos.1450/2014, 1687/2014]** Both these appeals arise from O.P.(MV).No.501 of 2009 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The said claim petition was submitted by the claimant, the appellant in M.A.C.A.No.1450 of 2014, seeking compensation for the injuries sustained to him in a motor accident that occurred on 30.07.2008. According to him, the accident happened when the motorcycle he was riding was hit by a tipper lorry bearing registration No.KL-45B-3992 driven by the 2[nd] respondent in the claim petition. The said vehicle was owned by the 1[st] respondent and was insured with the 3[rd] respondent in the claim petition, the appellant in M.A.C.A.No.1687 of 2014. (For convenience, the parties herein are referred to based on their respective ranks in the claim petition.) 2. According to the petitioner, he was an employee in South Indian Bank at the time of the accident with a monthly MACA.Nos.1450/14 & 1687/14 4 income of Rs.20,000/-. He was 40 years old at the time of the accident. Consequent to the injuries sustained, he suffered permanent disablement and the same compelled the petitioner to take voluntary retirement from the bank on 29.02.2012. The claim petition was submitted in such circumstances seeking a total compensation of Rs.75,00,000/-. 3. The 3[rd] respondent alone contested the matter by filing a written statement, wherein they admitted the coverage of policy for the lorry. But they disputed the liability on various grounds. They disputed the negligence as well as the quantum of compensation claimed. 4. The evidence in this case consists of oral testimonies of PW1 to PW4, and as documentary evidence, Exts.A1 to A24 were marked from the side of the petitioner. Ext.B1 and B2 were marked from the side of the 3[rd] respondent. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the lorry and being the insurer of the said lorry, the 3[rd] respondent was held liable to pay MACA.Nos.1450/14 & 1687/14 5 the compensation. The quantum of compensation was fixed as Rs.40,31,370/- with interest at the rate of 7.5% per annum from the date of petition till realization. 5. M.A.C.A.No.1450 of 2014 was submitted by the appellant in such circumstances seeking enhancement of compensation, whereas M.A.C.A.No.1687 of 2014 was submitted by the 3[rd] respondent challenging the quantum of compensation. 6. Heard Sri. Joseph Gopuran, learned counsel for the appellant/petitioner in M.A.C.A.No.1450 of 2014 and Sri. George Cherian(Thiruvalla), learned senior counsel for the 2[nd] respondent. 7. The challenge raised in both these appeals is with respect to the quantum of compensation. The learned counsel for the petitioner contends that the amounts awarded by the Tribunal under various heads are on the lower side, whereas the learned counsel for the 3[rd] respondent would contend that the amounts are exorbitant and require reconsideration. The 1[st] challenge of the petitioner is with respect to the amount awarded MACA.Nos.1450/14 & 1687/14 6 under the head of disability. It was pointed out that the injuries sustained by the petitioner resulted in physical disablement of 85% as certified by the Doctor, who was examined as PW1. According to the learned counsel for the petitioner, this is a fit case in which the Tribunal ought to have taken the functional disability of the petitioner as 100%, in view of the fact that he was compelled to take voluntary retirement from his employment on 29.02.2012 since he was unable to pursue the employment. It was also the case of the petitioner that the Tribunal ought to have considered the salary which the petitioner was receiving at the time when he was compelled to avail voluntary retirement, which was Rs.34,735/-. He relies on Ext.A17 series of documents to substantiate the details of his employment including the salary, date of retirement, emoluments and other benefits he was receiving while he was in service. He also relies on Ext.A24, which contains details relating to the voluntary retirement scheme. 7 MACA.Nos.1450/14 & 1687/14 8. After carefully going through the records, I find some force in the contention of the learned counsel for the petitioner. It is to be noted that, as per Ext.A16 disability certificate, the Doctor certified the disability of the petitioner as 85%. In Ext.A16, the detailed discussion of the injuries sustained by him and the reasons based on which the assessment of 85% of disability was made are clearly mentioned. The injuries mentioned therein are (1) Traumatic Brain Injury sequelae, (2) triparesis-lower extremities and left upper extremity, (3) comminuted depressed fracture of the right parietal bone in the high parietal region. The fracture is extending to involve the sagittal suture antero posteriorly, diffuse subarachnoid haemorrhage, diffuse brain edema, interhemispheric fissure bleed, subgaleal haematoma in bilateral parietal region (right Fonto Temporo Parietal region), (4) fracture left parietal bone, (5) multi level posterior disc protrusions at C3-C4 and C5-C6 with posterior osteophytes causing thecal sac and mild bilateral MACA.Nos.1450/14 & 1687/14 8 neural foraminal encroachment and (6) Right knee-meniscal injury. 9. While being examined as PW1, the doctor categorically deposed that, taking note of the serious nature of the injuries and consequential disabilities, the loss of earning capacity of the petitioner has to be treated as 100%, even though the physical disability was certified as 85%. In Ext.A16, it is also observed that the petitioner has Triparesis-both lower limb palsy and left upper limb paralysis. Both lower limbs and left upper limb have no strength, sensation, stability and range of movements. They are only ornamental and function-less. He is not able to sit up and walk. He needs the assistance of a second person to sit up. He is permanently wheelchair bound for ambulation. He is not able to carry out his activities of daily living (ADL) by himself. It was also mentioned that he is unfit for working as bank employee as he is incapacitated to do any other sought of work, therefore, loss of his earning capacity has to be treated as 100%. Besides the same, a detailed discussion as to the mental fitness of the 9 MACA.Nos.1450/14 & 1687/14 petitioner was also seen made in the said certificate. Such observations are to the effect that the petitioner has gross impairment in memory, impaired attention, and emotional incontinence in the form of anxiety, depression, and anger outbursts with trivial stimuli. He has language dysfunction in the form of reduced fluency, word finding pauses and impaired naming. He is not able to carry out mental activities that require continuous thinking and attention, like calculation, accounting, or similar occupations that require immediate retention and recall. In addition to that, he has persistent headaches and vertigo. He is prone to epilepsy and needs lifelong observation and antiepileptic medication. 10. Thus, the contents of Ext.A16, coupled with the evidence of PW1, would clearly indicate the pathetic situation of the petitioner. Evidence of PW2, the employee of the bank, coupled with Ext.A17, would indicate the fact that the petitioner became unfit for his employment consequent to the injuries sustained in the accident. PW2 has proved Ext.A17 series MACA.Nos.1450/14 & 1687/14 10 documents. It is discernible from the certificate issued by the Bank, which is one of the documents produced as Ext.A17 series that the petitioner was on continuous leave of 603 days from 30.07.2008 to 24.03.2010. It was also mentioned that during the said period, he exhausted 245 days of privileged leave, 285 days of sick leave and 70 days of loss of pay. Later, as he was unable to pursue his employment, he was forced to take voluntary retirement, and accordingly, he was relieved from service on 29.02.2012. Thus, when all the aforesaid evidence is considered together, it clearly establishes that the petitioner became unfit not only for the employment in which he was engaged but also for any other avocation. His condition is such that he is permanently wheelchair-bound and is unable to pursue his basic needs without the help of a third person. Both his legs, as well as his left hand, are paralyzed. In such circumstances, I am of the view that the contention of the petitioner that this is a case of functional disability of 100%, is to be accepted. MACA.Nos.1450/14 & 1687/14 11 11. The next aspect to be considered relates to the monthly income of the petitioner to be taken to compute the compensation for disability. Ext.A17 series of documents would indicate that as of the date of the accident, he was drawing a gross salary of Rs.20,080/-. However, as per the certificate dated 11.10.2012 issued by the Chief Manager of the Bank, as on the date he availed voluntary retirement on 29.02.2012, the gross salary he was drawing was Rs.34,735/-. The Tribunal took the salary for the purpose of compensation, as Rs.17,083/-, based on the salary he was drawing as on the date of the accident. However, the crucial aspect to be noticed is that the question that arises is whether the salary he was drawing on the date of the voluntary retirement could be taken to assess the compensation for loss of earning capacity. The learned counsel for the Insurance Company opposes the said claim of the petitioner by highlighting that what is relevant is the salary as on the date of the accident and under any circumstances, the salary as the date of voluntary retirement cannot be taken. MACA.Nos.1450/14 & 1687/14 12 12. However, it is to be noticed that there cannot be any dispute that the petitioner was compelled to take voluntary retirement only due to the injuries sustained in the accident. It is true that even after the accident, he continued in employment until he retired on 29.02.2012. But the documents would indicate that during the said period, he availed leave of 603 days, and as per the evidence of PW2, the employer of the bank, even though the petitioner rejoined the duty after the leave, he could not pursue his employment as he was found to be unfit to carry out any of the responsibilities attached with the employment. The voluntary retirement was compelled to be availed by the petitioner in such circumstances, and this is also evident from the records produced before the court. By the time he availed voluntary retirement, the gross salary of the petitioner became Rs.34,735/-. It is evident from the records that had the accident did not occur, the petitioner would have continued in the employment by availing the salary which he was receiving as on the date of his retirement, and receiving all the benefits including MACA.Nos.1450/14 & 1687/14 13 the pay revisions which he would have received subsequently. Only because of the injuries, he could not avail the benefits of the continued employment and the revision of salary which he would have received from time to time. Therefore, I am of the view that, as the voluntary retirement was the direct consequence of the injuries sustained by the petitioner, which prevented him from continuing in the employment with all the benefits he would have received otherwise, what is relevant for determining the loss of earning capacity should be salary which he was drawing as on the date of his retirement. This is particularly because, by the time he was compelled to retire from the service prematurely owing to the disability sustained, he had accrued the right to get the salary at the revised scale as existed as on 29.02.2012. Thus, it was the actual loss he suffered, and hence, an assessment of compensation ignoring the same cannot be made. Therefore, while loss of earning capacity is to be calculated, the relevant salary that has to be taken into account is the salary he was drawing as of 29.02.2012, the date of his retirement. MACA.Nos.1450/14 & 1687/14 14 13. As per the records, the components of the gross salary of the petitioner as on 29.02.2012 were as follows: |Basic Pay|:|Rs.19300/-| |---|---|---| |Dearness Allowance|:|Rs.12474/-| |Special Pay|:|Rs. 500/-| |HRA|:|Rs. 1386/-| |Transport Allowances|:|Rs. 275/-| |Other Allowance|:|Rs 800/-| |||____________| **34735/=======** 14. Out of the said components, the transport allowance and other allowances cannot be taken into consideration. The relevant components for determining the monthly income for the purpose of compensation are to be confined to the Basic pay, Dearness Allowance, Special pay, and HRA, which comes to Rs.33,660/-. In such circumstances, the petitioner's monthly income to determine the compensation for loss of earning capacity is fixed as Rs.33,660/-. 15. However, since this Court has taken the monthly income which the petitioner was drawing as on the date of MACA.Nos.1450/14 & 1687/14 15 retirement on 29.02.2012, the proper multiplier that is to be adopted is the one applicable to the age of the petitioner as on the date of the voluntary retirement. His date of birth discernible from the records was 25.05.1968; hence, as on the date of retirement, he was aged 44 years. Thus, the multiplier to be applied is '14'. As he comes within the age group of 40-50 and he sustained serious physical disability of 85% and functional disability of 100%, an addition of 30% of the monthly income has to be made towards future prospects. This is because he was in regular employment with a monthly salary until retirement. Even though the learned counsel for the appellant contended by placing reliance upon the calculation statement produced as Annexure A17(5) series, if he continued in his service, he would have received an amount of Rs.79,70,045/- as his salary, including the periodical increments. However, I am of the view that the said figure cannot be accepted because of the uncertainties in life. An arithmetical calculation of the actual loss of salary cannot be made for the period until his age of retirement on MACA.Nos.1450/14 & 1687/14 16 superannuation as there is no guarantee that he could have received the salary for the entire period due to uncertainties of life. The chances of him not continuing in service until his retirement for other reasons cannot be ruled out. The acceptability of pay revisions, which took place after the death of the victim, was specifically considered by the Honourable Supreme Court in **Sarla Verma and Others v. Delhi Transport** **Corporation and another (2010 (2) KLT 802= (2009) 6 SCC 121)** and held that the same could not be considered for assessing the compensation. Even though this is a case of personal injury and not a claim for compensation for death, as the victim availed voluntary retirement from service due to the injuries, the said principles can be made applicable in this case also. Therefore, I am not inclined to accept the figures shown in Ext.A17(5) calculation statement, which, according to the appellant, was the loss of salary for the entire period of his service. MACA.Nos.1450/14 & 1687/14 17 16. The next aspect to be considered is the income tax payable with respect to salary. Since this Court has taken the monthly income of the petitioner as on 29.02.2012, the rate of income tax prevailing for the assessment year 2011-2012 has to be taken into consideration. As per the same, no tax was payable up to Rs.1,80,000/- and for the amount above Rs.1,80,000/- up to Rs.5,00000/- the tax payable was at 10%. I have already found that the monthly income to be fixed to assess the compensation is Rs.33,660/-; thus, the annual income would come to Rs.4,03,920/-. The taxable income therefore comes to Rs.2,23,920/-. Thus, the tax payable, which was at the rate of 10% thereof, would come to Rs.22,392/-. Accordingly, the annual income after deducting the tax would come to Rs.3,81,528/-. Towards future prospects, 30% thereof has to be added, and while computing the compensation by adopting the multiplier of 14, the amount would come to Rs.69,43,804/-. The amount already awarded by the Tribunal under the head of disability MACA.Nos.1450/14 & 1687/14 18 would come to Rs.34,11,450/-; thus, the additional amount would come to Rs.35,32,354/-. 17. The learned counsel for the petitioner further points out that the petitioner requires assistance from bystanders throughout his life and, therefore, he is entitled to compensation for future bystander expenses as well. The said contention has to be accepted as it is evident from the records that both his legs and one hand were completely paralyzed, and he is permanently in a wheelchair. The evidence of PW1 clearly indicates that he requires the support of a third person for his basic needs as well. In **Kajal v. Jagdish Chand [2020 ACJ 1042],** the Honourable Supreme Court awarded attendance charges for two attendants at the rate of Rs.5,000/- per month. The learned counsel for the 3rd respondent would point out that a different yardstick has to be adopted in this case, and the observations made in **Kajal** 's case (supra) cannot be made applicable. It was pointed out that in **Kajal** 's case, the victim was a girl aged 12 years, and she was completely bedridden due to the injuries sustained in the MACA.Nos.1450/14 & 1687/14 19 accident. It was in those circumstances that the by-standers charges were calculated for two attendants. However, even while accepting the said contention, the fact that the petitioner would require the assistance of a person throughout the life cannot be ignored. The medical records which were proved by PW1 would fortify the contention raised by the petitioner in this regard. Therefore, I am of the view that the by-standers charges have to be calculated for one attendant at the rate of Rs.5000/per month. As the petitioner was aged 40 years, at the time of the accident, the attendant’s charges at the rate as mentioned above can be calculated by applying the multiplier of '15'. Thus, the said amount would come to Rs.9,00,000/-. The Tribunal has already awarded an amount of Rs.50,000/- under the said head. Therefore, the additional amount under this head would be Rs.8,50,000/-. 18. At this juncture, the learned counsel for the 3rd respondent/insurance company would point out that the Tribunal has awarded excess compensation under the head of loss of MACA.Nos.1450/14 & 1687/14 20 earnings. It was pointed out that the Tribunal awarded compensation under this head for a period of 12 months by taking the monthly income as Rs.22,210/-, which was not at all warranted, particularly in view of the fact that the petitioner was already granted compensation for disability by taking 100% functional disability. Even though there is some force in the said contention, the fact that the compensation for disability in this case was calculated by taking the monthly income as on the date of voluntary retirement on 29.02.2012 and that the multiplier applied was with reference to the age of the petitioner as on that day, cannot be ignored. It is to be noted that the accident in this case occurred on 30.07.2008. In Ext.A17 series documents, one of the certificates produced shows the details of the leave availed by the petitioner after the accident. It is mentioned therein that he availed 245 days of privileged leave, 288 days of sick leave and 70 days of loss of pay. PW2, in his deposition, clearly stated that as far as the sick leave of 288 days is concerned, there is no provision for encashing the same and therefore, no loss for the MACA.Nos.1450/14 & 1687/14 21 same has been suffered by the petitioner. The loss suffered was in respect of the privilege leave and the loss of pay leave for which the amounts mentioned in the said certificate are Rs.1,73,280.76 and Rs.62,294.26, respectively. The total loss of the amount the petitioner suffered by availing the leave during the said period would come to Rs.2,35,575/- (1,73,280.76 + 62,294.26). In such circumstances, the said amount represents the actual loss suffered by the petitioner by availing the leave, and hence, the same can be taken as the actual loss of income instead of calculating the amount for a period of 12 months as done by the Tribunal. Therefore, the compensation for loss of earnings awarded by the Tribunal is re-fixed as Rs.2,35,575/instead of Rs.2,66,520/-. Therefore, the excess amount under this head would come to Rs.30,945/-. 19. Besides the same, the learned counsel for the insurance company further points out that the Tribunal awarded an amount of Rs.50,000/- towards loss of earning power, which was not warranted in view of the fact that the compensation has MACA.Nos.1450/14 & 1687/14 22 already been granted by this Court taking the functional disability as 100%. The said contention has to be accepted in the light of the observations made by the Honourable Supreme Court in **Lalan D @ Lal v. The Oriental Insurance Company Ltd. [2020 (9) SCC 805].** In the said decision, it was categorically observed that when 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. Therefore, the said amount is ordered to be deducted. 20. Similarly, in the light of the compensation awarded for loss of earning power, the amount of Rs.15,000/- awarded by the Tribunal towards disfiguration is also ordered to be deducted. 21. Another aspect to be noticed is that after calculating the compensation as Rs.44,97,310/-, the Tribunal deducted an amount of Rs.4,65,940/-, which the petitioner received at the time of VRS. The learned counsel for the petitioner contends that such a deduction was unwarranted. The Ext.A24 is the document MACA.Nos.1450/14 & 1687/14 23 which shows the details of the calculation of the amounts received by the petitioner at the time of availing the VRS. It is discernible from the said certificate that the amount of Rs.4,65,940/- was the payment towards gratuity under the provisions of the Payment of Gratuity Act and other benefits. It is to be noted that as far as the gratuity is concerned, the same is something which the petitioner earned from his service until he was relieved. Under no circumstances the same can be treated as an element which can be adjusted against the compensation calculated under Section 166 of the Motor Vehicles Act. Both amounts are completely unrelated, and therefore, I do not find any justification on the part of the Tribunal in deducting the said amount from the compensation calculated for the loss of earning capacity of the petitioner. Therefore, the deduction of Rs.4,65,940/- ordered by the Tribunal is also to be set aside, and it is ordered accordingly. MACA.Nos.1450/14 & 1687/14 24 22. Thus, the additional compensation receivable by the petitioner is determined as Rs.42,86,409/-.(Rupees forty two thousand eighty six thousand, four hundred and nine only) (35,32,354 + 8,50,000) - ( 30,945 + 50,000 + 15,000). The amount already awarded by the Tribunal was Rs.44,97,310/-; thus, the total compensation is re-fixed as Rs.87,83,719/-(Rupees eighty seven thousand eighty three thousand, seven hundred and nineteen only). In the light of the aforesaid observations and findings, the following orders are passed. i) The award dated 07.02.2014 passed by the Motor Accidents Claims Tribunal, Irinjalakuda in O.P(M.V) No.501/2009 is modified by refixing the compensation as Rs.87,83,719/-(Rupees eighty-seven lakhs eighty three thousand, seven hundred and nineteen only). ii) The 3rd respondent, being the insurer of the vehicle involved in the accident, shall be liable to pay the said amount. iii) Out of the said amount, Rs.69,43,804 will carry interest at the rate of 7.5% from 29.02.2012, the date on MACA.Nos.1450/14 & 1687/14 25 which the petitioner retired from service. Similarly, the amount of Rs.9,00,000 awarded towards bystander expenses being intended to cover the costs of the petitioner after the accident and in future, the said amount will carry interest at the rate as ordered by the Tribunal, only from the date of the award. The rest of the amount will carry the interest from the date of the petition at the rate mentioned above. The amount as mentioned above shall be deposited by the 3rd respondent/insurance company within a period of three months from the date of receipt of a copy of this judgment after adjusting the amounts already deposited. Sd/- **ZIYAD RAHMAN A.A. JUDGE** 12.1.24/DG/rpk