National Insurance Company Limited v. Nithin Maheswari and Dr. Prabhakaran (MACA No.2066 of 2014; CO No.200 of 2014) High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942** ## **MACA.No.2066 OF 2014** **AGAINST THE AWARD IN OP(MV) NO.1234/2011 DATED 15-05-2014 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT:** **NATIONAL INSURANCE COMPANY LTD DIVL. OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G ROAD, ERNAKULAM** **BY ADV. SRI.LAL GEORGE** ## **RESPONDENTS:** **1 NITHIN MAHESWARY S/O. BHUVANESH MAHESWARI, AGED 27 YEARS RESIDING AT 989/C/9 GOVINDPURI, KALKAJI, DELHI 110001 2 DR. PRABHAKARAN S/O KELU, AGED 54 YEARS RESIDING AT KAVIL PARAMBU HOUSE, H.NO 31/75A, PALAKKOTTUVAYAL ROAD, P.O, MAYANAD, MEDICAL COLLEGE, KOZHIKODE 673001** **R1 BY ADV. SRI.AVM.SALAHUDIN R2 BY ADV. SRI.P.M.HARRIS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2020, ALONG WITH CO.200/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.2066/2014 & CO.200/2014** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942** **CO.No.200 OF 2014 IN MACA. 2066/2014** **AGAINST THE AWARD IN OP(MV) NO.1234/2011 DATED 15-05-2014 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **CROSS OBJECTOR/RESPONDENT NO.1/CLAIMANT IN OP(MV):** **NITHIN MAHESWARI AGED 30 YEARS S/O.BHUVANESH MAHESWARI, RESIDING AT 989/C/9, GOWINDPURI, KALKAJI, DELHI.** **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENTS/APPELLANT AND 2ND RESPONDENT/RESPONDENTS IN OP(MV):** **1 NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE-673001.** **2 DR.PRABHAKARAN AGED 54 YEARS S/O.KELU, RESIDING AT KAVIL PARAMBU HOUSE, HOUSE NO.31/75A, PALAKKOTTUVYAL ROAD, P.O.MAYANAD, MEDICAL COLLEGE, KOZHIKODE-673008.** **R2 BY ADV. SRI.P.M.HARRIS R1 BY ADV. SRI.LAL GEORGE** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2020, ALONG WITH MACA.2066/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.2066/2014 & CO.200/2014** **3** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 13[th] day of July, 2020**_ The 2[nd] respondent-insurer in OP(MV) No.1234/2011 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode has filed this MACA invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by Award dated 15.05.2014. The 1[st] respondent in MACA, who is the petitioner in OP(MV), has filed a Cross Objection under Order XLI Rule 22 of the Code of Civil Procedure, 1908. 2. The 1[st] respondent in this MACA filed the OP(MV) stating that on 03.08.2010, while he was standing near English Church, a car driven in a rash and negligent manner hit him down causing serious injuries. He was taken to Medical College Hospital, Kozhikode and had to be treated as **MACA.2066/2014 & CO.200/2014** **4** an inpatient for three months. The 1[st] respondent claimed ₹42,80,000/- as compensation. 3. The 2[nd] respondent, who is the owner of the car, remained _ex parte_ . The appellant-insurer filed a written statement admitting policy coverage, but denying liability. The appellant disputed the age, occupation and income of the 1[st] respondent and stated that the amount of compensation claimed is excessive. The appellant also stated that the 2[nd] respondent was not negligent. 4. The 1[st] respondent produced Exts.A1 to A13. Disability certificate issued by the Medical Board dated 27.03.2014 was marked as Court Ext.C1. The Tribunal, on appreciation of evidence, found that the 2[nd] respondent was negligent while driving and his negligence resulted in the accident. 5. As regards compensation, the Tribunal noted that the 1[st] respondent had sustained Type II open fracture to both bones left leg. The 1[st] respondent was treated as inpatient for **MACA.2066/2014 & CO.200/2014** **5** 112 days. Ext.A12 would show that the 1[st] respondent again was admitted in the Indraprastha Apollo Hospital, Delhi on 06.03.2011 and was discharged on 09.03.2011. Ext.A11 would further show that the 1[st] respondent was again admitted on 08.06.2011 in Indraprastha Apollo Hospital, Delhi and was discharged only on 04.10.2011. The Tribunal assessed that the 1[st] respondent had an annual income of ₹1,80,000/-. Based on the disability certificate, the Tribunal concluded that the 1[st] respondent suffered 66% permanent disability. On these premises, the Tribunal passed an Award granting a compensation of ₹24,09,000/- under the following heads:- |**Sl.**<br>**No.**|**The compensation**<br>**claimed under**<br>**different heads**|**Amount**<br>**claimed**|**Amount**<br>**allowed**|**Basis/vital details in**<br>**a nutshell**| |---|---|---|---|---| |1.|Loss of earnings|1,00,000/-|90,000/-|15,000 x 6 months| |2.|Transport to hospital|4,000/-|2,000/-|| |3.|Damage to clothings<br>and articles|2,000/-|500/-|| |4.|Extra nourishment|4,000/-|2,500/-|| |5.|Bystander's expenses|Nil|58,750/-|250 x 235 days<br>(Exts.A7,A11,A12)| |6.|Treatment expenses|7,50,000/-|1,75,498/-|Ext. A13 series| **MACA.2066/2014 & CO.200/2014** **6** |**Sl.**<br>**No.**|**The compensation**<br>**claimed under**<br>**different heads**|**Amount**<br>**claimed**|**Amount**<br>**allowed**|**Basis/vital details in**<br>**a nutshell**| |---|---|---|---|---| |7.|Pain and sufferings|50,000/-|50,000/-|| |8.|Loss of Future earning<br>power|33,50,000/-|20,19,600/-|1,80,000x17x66/100| |9.|Loss of amenities|20,000/-|10,000/-|| ||**TOTAL**||**24,08,848/-**|| The Tribunal also awarded 8% interest per annum from the date of the OP(MV). Aggrieved by the Award, the insurer has come up in appeal. 6. The appellant states that the Tribunal ought not have taken 66% permanent disability for determining functional disability. The Tribunal has not followed the judgment of the Apex Court in _**Raj Kumar v. Ajay Kumar and another** [(2011) 1 SCC 343]_ while assessing functional disability. The income of the 1[st] respondent fixed by the Tribunal is much on a higher side. In the absence of substantial evidence, the Tribunal ought not have assessed the notional annual income of the 1[st] respondent as ₹1,80,000/-. **MACA.2066/2014 & CO.200/2014** **7** 7. The learned Standing Counsel further argued that considering the high multiplicand, the Tribunal ought to have scaled down the multiplier appropriately. The award of ₹20,19,600/- towards compensation for future loss of earning power is against the principles of multiplier theory evolved in the various English decisions. The learned Standing Counsel for the appellant relied on the judgments in _**United India Insurance Company v. Jean Patricia Mohajan** [AIR 2002 SC 2607]_ , _**TNSRTC v. S. Rajpriya** [(2005) 6 SCC 236]_ , _**TNSRTC v. Bindu** [(2009) 3 SCC 705]_ , Nanee v. British Columbia Electrical Company _[1951 AC 601]_ , _**Davis v. Powell** [1942 (1) AllER]_ and _**KSRTC v. Susamma Thomas**_ [1994 (1) KLT 67 (SC)]. 8. The learned counsel for the 1[st] respondent, who is the cross objector in CO. No.200/2014, on the other hand, argued that the injuries sustained by the 1[st] respondent were serious. In fact, the functional disability of the 1[st] respondent is much more than 66%. The 1[st] respondent had claimed **MACA.2066/2014 & CO.200/2014** **8** ₹50,00,000/- before the Tribunal as compensation, but the Tribunal awarded only ₹24,09,000/-. The 1[st] respondent was rendered totally disabled due to the accident. The Tribunal did not grant any amount towards diminution of marriage prospects. The 1[st] respondent is not able to meet the expenses of his future treatment. The Tribunal therefore ought to have awarded compensation for future treatment. The 1[st] respondent's monthly salary was ₹19,000/- at the time of the accident. The Tribunal assessed the income of the 1[st] respondent at a lower stage. 9. The learned counsel for the 1[st] respondent further argued that the Tribunal ought to have added 50% of the income towards future prospects. The compensation granted towards transport to hospital, extra nourishment and damage to clothing, are all on the lower side. Therefore, there should be substantial enhancement in the compensation amount. 10. I have heard the learned Standing Counsel for the appellant-insurer and the learned counsel for the **MACA.2066/2014 & CO.200/2014** **9** respondents. 11. The prime grievance of the appellant-insurer is that the annual income of ₹1,80,000/- of the 1[st] respondent, notionally fixed by the Tribunal is excessive. From Ext.A5, it is evident that the 1[st] respondent has passed Bachelor of Engineering Examination in Information Technology and was awarded certificate by the Delhi College of Engineering on 26.04.2010. The 1[st] respondent had produced Exts.A5, A6 and A10 documents to prove his salary. Ext.A10 would show that the 1[st] respondent was paid ₹7,000/- as consolidated salary during the probation period and after confirmed service, he was entitled to get DA and other allowances. As the 1[st] respondent is an engineering graduate in Information Technology, the Tribunal assessed the annual income of the 1[st] respondent as ₹1,80,000/-. As the year of accident is 2010, when the demand for professionals in Information Technology was high, the monthly notional income of ₹15,000/- fixed by the Tribunal cannot be said to be **MACA.2066/2014 & CO.200/2014** **10** excessive at all. 12. The learned Standing Counsel for the insurer relied on the judgment of the Apex Court in _**Jean Patricia Mohajan** (supra)_ to urge that considering the high multiplicand, the multiplier ought to have been scaled down. In _**U.P. State Road Transport Corporation v. Trilok Chandra** [1996 (2) KLT 218 (SC)]_ , the Hon'ble Apex Court noticed from the Awards made by the Tribunals and Courts that the principle on which the multiplier method was developed has been lost sight of and once again a hybrid method based on subjectivity of the Tribunal/Court has surfaced, introducing uncertainty and lack of reasonable uniformity in the matter of compensation. In _**Sarla Verma and others v. Delhi Transport Corporation and another** [2010 (2) KLT 802 (SC)]_ , the Hon'ble Apex Court quoted with approval the observations of the Apex Court in the judgment in _**General Manager, Kerala State Road Transport Corporation v. Susamma Thomas**_ [1994 (1) KLT 67 (SC)] that any **MACA.2066/2014 & CO.200/2014** ## **11** departure from multiplier method 'except in exceptional circumstances' would introduce inconsistency of principle, lack of uniformity and an element of unpredictability, for assessment of compensation. In view of the said observations of the Apex Court, departure from the multiplier fixed based on the age of the 1[st] respondent, will not be justified. 13. The further argument of the learned Standing Counsel for the appellant is that the Tribunal went wrong in fixing 66% as the functional disability of the 1[st] respondent. Ext.A8 certificate was issued to the 1[st] respondent from Pt. Madan Mohan Malaviya Hospital, Government of NCT of Delhi. Ext.P10 certificate would show that the physical disability of the 1[st] respondent is 70% permanent in relation to his left lower limb. The certificate would show that the disability though is non-progressive, the same is not likely to improve. Ext.A8 certificate also contains a photo of the 1[st] respondent inclusive of his lower limbs. From Ext.A8, it is **MACA.2066/2014 & CO.200/2014** ## **12** evident that the left lower limb of the 1[st] respondent is permanently damaged and thinned. The 1[st] respondent was produced before the Medical Board, Medical College Hospital, Calicut. The Medical Board noted that the 1[st] respondent is having stiffness of left ankle with atrophy of the whole leg muscles and an open fracture of both bones of left leg. The Board has fixed disability of the left ankle as 96%. The Board further noted that the stability component in respect of the 1[st] respondent in climbing of stairs, squatting, sitting cross legged, taking turns and standing on limb, are affected. Taking into consideration Ext.A8 certificate issued by the Pt. Madan Mohan Malaviya Hospital, Delhi and Ext.C1 Certificate of Permanent Disability issued by the Medical Board, this Court is convinced that the decision of the Tribunal in fixing 66% as the functional disability of the 1[st] respondent is justified and no interference is warranted in that regard. 14. With respect to the contentions of the learned **MACA.2066/2014 & CO.200/2014** **13** counsel for the 1[st] respondent-Cross Objector, it is to be noted that the claim of the 1[st] respondent before the Tribunal in the OP(MV) was that the 1[st] respondent was earning ₹19,000/- per month. The documents produced by the 1[st] respondent were insufficient to accept that contention. But, taking into account Exts.A5, A6 and A10 and the professional qualification of the 1[st] respondent, the Tribunal fixed notional income of the 1[st] respondent as ₹15,000/-. The Tribunal, in the absence of any other material, was justified in assessing so. 15. It is seen that the Tribunal has not considered future prospects, while fixing the notional monthly income for the purpose of calculating disability compensation. Going by the judgments of the Apex Court in _**National Insurance Co. Ltd. v. Pranay Sethi and others** [(2017) 16 SCC 680]_ and _**Rajesh and others v. Rajbir Singh and others** [2013 (3) KLT 89]_ , the 1[st] respondent should be granted an addition of 50% towards future prospects. But, since the 1[st] respondent **MACA.2066/2014 & CO.200/2014** **14** was a bachelor at the time of the accident, going by the judgment in _**Sarla Verma and others v. Delhi Transport Corporation and another** [(2009) 6 SCC 121]_ , 50% of the income has to be deducted towards personal and living expenses of the 1[st] respondent. The Tribunal has not deducted any amount towards personal expenses. Since the addition towards future prospects and deduction towards personal and living expenses, both stands at 50%, there is no requirement for changing the notional income fixed by the Tribunal. 16. The learned counsel for the 1[st] respondent further argued that the Tribunal did not grant any amount towards loss of amenities. It is to be noted that the accident was on 03.08.2010 and the 1[st] respondent had remained in hospital for 112 days. Ext.A12 discharge summary issued from the Indraprastha Apollo Hospital subsequently would show that the 1[st] respondent was admitted in the hospital on 06.03.2011 and remained in the hospital till 09.03.2011. Ext.A11 **MACA.2066/2014 & CO.200/2014** **15** discharge summary produced by the 1[st] respondent would show that the 1[st] respondent was again admitted in Indraprastha Apollo Hospital, Delhi on 08.06.2011 and was discharged on 04.10.2011. Ext.C1 would establish that the stability component of the lower limb of the 1[st] respondent is low and he will be finding difficulties in climbing of stairs, squatting, sitting cross leg, taking turns, etc. The injuries have definitely affected the amenities that would otherwise have been enjoyed by the 1[st] respondent. In the circumstances, taking into consideration the afore aspects, the 1[st] respondent shall be held entitled to a compensation of ₹50,000/- towards loss of amenities. The Tribunal has awarded only ₹10,000/- towards loss of amenities. The 1[st] respondent therefore will be entitled to additional compensation of ₹ **40,000/-** under the head loss of amenities. 17. The compensation awarded under other heads are scrutinised and are found fairly just and reasonable, and do not warrant any interference. **MACA.2066/2014 & CO.200/2014** **16** Accordingly, MACA No.2066/2014 is dismissed. It is declared that the Cross Objector in C.O. No.200/2014 would be held entitled to **₹40,000/-** as additional compensation. The respondent-insurer in the Cross Objection shall deposit the said amount along with interest at the rate of 8% per annum from the date of OP(MV), within a period of one month. The Cross Objection is disposed of as above. Sd/- **N. NAGARESH, JUDGE** aks/09/07/2020