New India Assurance Company Ltd. v. Dr Subash Bose P.K. and others (MACA Nos. 330 of 2008 and 1939 of 2008)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **& THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **FRIDAY, THE 12TH DAY OF JULY 2013/21ST ASHADHA, 1935** ## **MACA.No. 330 of 2008 ( )** **----------------------------------AGAINST THE AWARD IN OPMV 320/1998 of ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM.** **..........** ## **APPELLANT(S)/3RD RESPONDENT.:** **----------------------------------------------------** **THE NEW INDIA ASSURANCE COMPANY LTD., REPRESENTED BY THE MANAGER, REGIONAL OFFICE, M.G.ROAD,KOCHI - 11.** **BY ADV. SRI.LAL GEORGE** ## **RESPONDENT(S)/PETITIONER & RESPONDENT 1 & 2 RESPECTIVE:** **--------------------------------------------------------------------------------------------------** **1. DR.SUBASH BOSE P.K., SOUPARNIKA, GANDHINAGAR, KOTTAYAM.** **2. MANUEL MATHEW, S/O. P.M.MATHEW, VALAYAMTHOTTIYIL HOUSE, MARANGATTUPALLY P.O.** **3. THILAKAN, S/O. BHASKARAN, CHEMMANAMPARAMBIL HOUSE, EDAPALLY KARA BHARANANGANAM VILLAGE.** **R1 BY ADVS. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN** **SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.V.P.SEEMANTHINI (SR)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2013, ALONG WITH MACA. 1939/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## ANTONY DOMINIC & P.D.RAJAN, JJ ......................................... MACA Nos.330 & 1939 of 2008 ......................................... Dated 12[th] July, 2013 ## JUDGMENT ## **ANTONY DOMINIC, J** The Insurance Company and the claimant are the respective appellants in these two appeals. 2. On 19.3.1997, while the claimant was travelling by car bearing registration No.KRY 2000, through the M.C. Road, when he reached Pattithanam junction near Ettumanoor, a bus bearing No.KEO 1024, owned by the 2[nd] respondent and driven by the 3[rd] respondent in MACA No.330 of 2008 (second respondent in MACA 1939 of 2008), hit against the car and also two other vehicles at the same spot. In that accident, the claimant sustained serious injuries including fractures. The vehicle was covered by a valid policy of insurance issued by the appellant. 3. In such circumstances, the claimant filed OP(MV) No.320 of 1998 before MACT, Kottayam claiming a total compensation of Rs.1,94, 96,958/- under various heads, limiting his claim to Rs.1,00,00,000-. By an award rendered on 2.4.2007, MACT, Kottayam awarded a total compensation of Rs.45,07,700/- with 7 % interest from the date of the petition 2 Maca 330 & 1939/2008 till date of realisation and the appellant was directed to a deposit the amount. It is aggrieved by the award, the insurance company has filed MACA 330 of 2008 and the claimant has filed MACA 1939 of 2008, seeking enhancement of the compensation awarded by the Tribunal. 4. Reading of the award shows that the claimant is a post graduate Doctor, who was then working as an Associate Professor of ENT at the Medical College, Kozhikode. His qualifications and other achievements in life have been stated in detail in paragraph 12 of the award. In paragraph 10 of the award, referring to Ext.A20, SSLC book of the claimant, Tribunal found that he was 46 years at the time of the accident. In paragraph 9 of the award, referring to Exts. A5, to A10, A47 and A48, the Tribunal has referred to the injuries sustained by the claimant, who, consequently, is a paraplegic now. The details of the treatment undergone and the present condition of the claimant also are stated in detail in the award. In paragraph 11 of the award, the Tribunal has made reference to Ext.A12, a certificate issued by Assistant Accounts Officer, Office of the Accountant General, Thiruvananthapuram as a dependable document regarding his income for assessing Maca 330 & 1939/2008 3 the compensation due to the claimant. 5. Thereafter, the Tribunal proceeded to deal with each of the claims of the claimant and finally awarded Rs.23,85,184/- towards loss of salary, Rs.2,42,376/- towards the salary during the extended period under Rule 60(c) of Part I of KSR, Rs.3,00,000/- towards loss of promotional avenues, Rs.1000/- towards damages to the materials, Rs.4,43,100/towards medical expenses, Rs.1,50,000/- towards expenses incurred for bye-standers, Rs.35,000/- for providing bye stander in future, Rs.31,000/- towards transportation, Rs.30,000/- towards extra nourishment, Rs.1,00,000/towards loss of marital life, Rs.50,000/- towards future treatment, Rs.3,83,000/- towards expenses incurred for physiotherapy, Rs.3,36,000/- towards loss of future earnings and Rs.50,000/- towards pain and suffering, totalling to Rs.45,07,700/-. 6. As far as the appeal filed by Insurance Company is concerned, the main contentions raised by learned counsel for the appellant are two-fold. First was regarding the finding of the Tribunal on the issue of negligence. According to learned counsel for the Insurance Company, this is a case of 4 Maca 330 & 1939/2008 contributory negligence in as much as there was a head on collision between the two vehicles and therefore drivers of both the vehicles are to be held equally liable. In support of this contention, learned counsel placed reliance on the Apex Court judgment in **Bijoy Kumar Dugar V. Bidyadhar Dutta and** **others** (AIR 2006 SC 1255). This argument is raised on the basis of a statement in the claim petition and also in the award, that the vehicle driven by the claimant was being driven from north to south and that the offending bus was being driven in the opposite direction. However, reference to Ext.A3, the charge laid by police after investigation shows that the claimant's vehicle was moving from south to north and the offending vehicle was coming in the opposite direction. It is also evident that the offending vehicle, the bus came to the opposite side of the road. The bus initially hit a jeep, killed four travellers and thereafter collided with the claimant's vehicle and thereafter again hit yet another vehicle. The evidence adduced by the witnesses and the mahazar prepared by the police, also substantiate the above factual aspect. Therefore, a stray sentence that was available in the claim petition, cannot be relied by the Insurance Company to contend that Maca 330 & 1939/2008 5 this is a case of head-on collision involving contributory negligence to make the drivers of both vehicles equally liable. For this reason, we reject the contention of the learned counsel for the petitioner that the finding of the Tribunal on the question of negligence is incorrect. 7. Then he contended that the quantum awarded was illegal. His first attack was against the award of Rs.23,85,148/towards loss of salary. According to the learned counsel, instead of adopting the salary as basis for awarding compensation, Tribunal should have adopted multiplier method and the Tribunal should also have scaled down the multiplier to make the compensation a just one. In support of his contentions, learned counsel relied on the decision of Apex Court in **United India Insurance Co Ltd V. Patricia Jean Mahajan** (AIR 2002 SC 2607), **Aravind Kumar Mishra V. New India Assurance Company Limited and another** (2010(10) SCC 254) **,Managing Director, TNSTC Ltd V. K.I.Bindu and others** (2005(8)SCC 473), **T.N.State Transport Corporation Ltd V. S.Rajapriya and others** (2005(6)SCC 236), **Asraf Ali V. Naveen Hotels Limited and another** (2009(2)SCC 755) and **Sarla Verma (Smt) and** Maca 330 & 1939/2008 6 ## **others V. Delhi Transport Corporation and another** (2009 (6)SCC 121). 8. However, this contention of the learned counsel for the Insurance Company was sought to be contradicted by the learned senior counsel appearing for the claimant by arguing that the judgment in Sarala Varma's case has been explained by Apex Court in **Rajesh.V.Rajbir Singh** (2013(3) KLT 89). She also placed considerable reliance on the Apex Court judgment in **R.D.Hattangadi V. M/s.Pest Control (India) Pvt. Ltd** (AIR 1995 SC 755), which according to her was rendered in an identical factual situation. She also placed reliance on the Apex Court judgment in **Laxman V. Divisional Manager, Oriental Insurance Co.Ltd and another** (2012 ACJ 191), **Govind Yadav V. New India Assurance Co.Ltd** (2012 ACJ 28) and **Kavita V. Deepak and others** (2012(8) SCC 604) where the Apex Court has followed its judgment in R.D.Hattangadi's case (supra). 9. Having considered the rival submissions, we are of the view that the claimant is justified in his contention. A perusal of the principles laid down by the Apex Court in its judgment in R.D.Hattangadi's case (supra) shows that that was also a Maca 330 & 1939/2008 7 case where a practising Advocate, got injured in an accident and had become paraplegic and in that case, the Apex court held thus:- “9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far nonpecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. 10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a life long handicapped. No amount of compensation can restore the physical frame of Maca 330 & 1939/2008 8 the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. 11. In the case Ward v. James, 1965 (1) All ER 563, it was said: "Although you cannot give a man so gravely injured much for his "lost years", you can, however, compensate him for his loss during his shortened span, that is, during his expected "years of survival". You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and Juries have to do the best they can and give him what they think is fair. No wonder they find it well-nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money." 12. In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards. 13. This Court in the case of C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, in connection with the Fatal Accidents Act has observed (at p. 380): Maca 330 & 1939/2008 9 "In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable." 14. In Halsbury's Laws of England, 4th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said :- "Non-pecuniary loss : the pattern. Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases." 10. It is this judgment which has been followed by the Apex Court in the subsequent judgments, referred to above. On the other hand, most of the judgments, relied on by the learned counsel for the petitioner are cases involving death and in those cases what has been adopted by Apex Court is multiplier. The scaling down of multiplier has been adopted by the Apex Court only in cases where compensation quantified Maca 330 & 1939/2008 10 on application of multiplier method was found to be exorbitant. 11. So far as this case is concerned, the fact that the claimant is a qualified Doctor is not in dispute. At the time of the accident, he was only 46 years. He was working as an Associate Professor in Medical College with long years of service remaining. His income has been proved by producing Exts.A12,13, A17, A18 and A19. It is taking note of all these documents and the future prospects, that the Tribunal has awarded Rs.23,85,148/- towards loss of salary. When the learned counsel for the Insurance company pressed his contention for the acceptance of multiplier method, we made a rough calculation of the compensation that would be payable if that method is accepted. To his salary, he was then earning, we made an addition of 30% as provided by Apex Court in its judgment in **Rajesh's** case (supra) and applying the multiplier of 13, we found that the compensation payable would have been about Rs.35 lakhs. From this amount, even if the element of income tax is deducted, the compensation payable would have been more than what is awarded by the Tribunal. This therefore means that the situation does not warrant either the adoption of multiplier or its scaling down Maca 330 & 1939/2008 11 and that what is awarded by the Tribunal towards loss of salary is only a reasonable compensation. 12. Now what remains is the appeal filed by the claimant. In so far as his appeal is concerned, his grievance is confined to certain specified claims. His first grievance is regarding the future earnings claimed by him. According to the claimant, being a Doctor, on retirement, he had a bright future with several job opportunities including earnings from private practise. On that basis, he had claimed Rs.20,000/- per month for a period of ten years. His grievance is that the Tribunal has awarded only Rs.5000/- per month and a total of Rs.3,36,000/-. Both sides accept that Rs.3,36,000/- has been quantified in the following manner. 5000 X 70% X 8 X12 = Rs. 3,36,000/- Although the counsel for the Insurance Company justified the award, it is common knowledge that a person of the claimant's qualification and experience, would have had several post retiral openings both for private practise and for employment. In such a situation, certainly the claimant would have earned substantially and in our view, Rs.5000/- fixed by the Tribunal is too low. Even by a conservative estimate, in our view, the Maca 330 & 1939/2008 12 Tribunal should have fixed at least Rs.10,000/- per month and we intend to revise the compensation awarded for future earnings. Accordingly, adopting the basis of calculation adopted by the Tribunal, we quantify the compensation towards future earnings to Rs.6,72,000/-. 13. The second grievance of the claimant is regarding the amount awarded towards expenses for bye-stander. It is seen from the evidence that under this head, the total amount of Rs.5,76,000/- was claimed. The claimant had examined Pws 5 to 8 and had produced Ext.A42 to substantiate his claim that this amount has already been spent by him. As per this claim, for the period 1997-1998, he had four bye-standers and from 1998 onwards, he had two bye-standers. Here also the insurance company canvassed this to be a reasonable award, there was no evidence to disbelieve the claim and considering the physical condition of the claimant and the medical evidence, this claim advanced by him could not have been stated as unreal or exorbitant. In such circumstances, in the absence of any finding that Ext.A42 is unacceptable, we see no reason why Tribunal should have made an unreasonable deduction by awarding Rs.1,50,000/-. In such circumstances, Maca 330 & 1939/2008 13 we are inclined to accept the claim made by the claimant and award Rs.5,76,000/- as claimed by him. 14. In the award, Tribunal itself has come to the conclusion that for future also, the claimant requires byestanders. It was under that head, the claimant had claimed Rs.5,40,000/-. From the award, we notice that although in principle, his claim has been upheld by the Tribunal, the Tribunal has awarded only Rs.35,000/-. Going by the wage rates prevailing today, this amount, in our view, would not suffice even for one year. Therefore, we are inclined to enhance the amount awarded to Rs.2,00,000/- towards future bye-standers. 15. The next item argued was regarding the claim for medical expenses. The medical bills were produced and were marked as Ext.A45 and considering this, the Family Court awarded Rs.4,43,100/-. However, from Ext.A45, what we notice is Rs.4,43,100/- represents the medical expenses incurred by the claimant during the period 19.3.1997 to 19.5.2003. Ext.A45 contains another set of bills for the period from 20.5.2003 to 30.11.2005 for an amount of Rs.60,161/and these bills were omitted to be taken into account. Maca 330 & 1939/2008 14 Contrary to the contention of the insurance company, this being a clear case of inadvertent omission by the Tribunal and as the claim is fully substantiated by Ext.A45, the Tribunal should have awarded amount covered by these bills also. Accordingly, towards medical expenses, we award a further sum of Rs.60,161/- claimed by the claimant. 16. From the claim petition, it is seen that the claimant had claimed Rs.3 lakhs towards pain and sufferings and what is awarded is only Rs.50,000/-. Having regard to the medical evidence, the repeated surgeries undergone by the claimant, the long hospitalisation and the pain and suffering undergone by him, compensation of Rs.50,000/- awarded is too low and therefore, this will stand enhanced to Rs.2 lakhs. 17. Though, again was objected by the insurance company, we find that while reckoning the salary of the claimant, the Family Court has not taken into account the HRA of Rs.400/- and CCA of Rs.75/- which he was getting. Therefore, he was entitled to be awarded compensation taking into account these elements also and towards this, if the total amount due to the claimant for the period for which he had Maca 330 & 1939/2008 15 remaining service is calculated, it would be Rs.74,100/- and therefore, we award Rs.75,000/- on this count. 18. From the award we notice that the claimant was awarded Rs.3,32,416/- towards salary during the extended period under rule 16(c) of KSR. However, it is now revealed that for the extended period, the claimant has received Rs.75,880/- towards pensionary benefits. Therefore, that amount is liable to be deducted. Accordingly, the amount awarded for the extended period of service will stand re-fixed at Rs.2,56,536/-. 19. The surviving grievance of the claimant is regarding the amount awarded for future medical expenses and expenses for future physiotherapy requirements. Towards future medical expenses, the claimant had claimed for Rs.20 lakhs and the Tribunal has awarded only Rs.50,000/-. The fact that he requires continued treatment is not a matter of dispute and on the other hand, is proved by medical evidence. Similar is the case of the necessity of physiotherapy in future and this has also been spoken to by the doctors who were examined. In so far as physiotherapy for future is concerned, although he had claimed Rs.5,40,000/-, no amount has been awarded by Maca 330 & 1939/2008 16 the Tribunal. On behalf of the claimant, we were referred to the principles laid down by the Apex Court in **Nizam Institute of Medical Sciences V. Prasanth S Dhananka** (2010 ACJ 38) and also judgment of the Andra Pradesh High Court in **Pola Bhadramma V. G.Kumar and another** (2011 ACJ 2168). In the judgment in _**Nizam Institute of Medical Sciences case**_ referred to above, the Apex Court has held that the expenditure that the complainant incurred and is likely to incur in the future and the possibility of the injured recovering being bleak, the claimant is entitled to be awarded amounts towards future medical expenses. From the judgment, we notice that, in that case, the injured had become paraplegic and was aged 30 years. Taking note of the all the above, the Apex Court awarded Rs.25 lakhs. Following that judgment, in the judgment referred to above, in respect of an injured who was 50 years, the Andra Pradesh High Court awarded Rs.15 lakhs towards future medical expenses. 20. In so far as this case is concerned, we have already noticed, that despite the admitted requirement of continued treatment so long as he is alive, as against a claim of Rs.20 lakhs, the Tribunal awarded a meagre sum of Rs.50,000/-. It Maca 330 & 1939/2008 17 does not require any explanation to conclude that the award in this respect is too low. In such circumstances, having regard to the facts noticed above and as the claimant was 46 years at the time when the award was passed, we are inclined to award an additional amount of Rs.5 lakhs. 21. In so far as the requirement of physiotherapy is concerned, as we have already mentioned, there is medical evidence proving the necessity of continued physiotherapy and although the claimant had claimed Rs.5,40,000/-, nothing has been awarded by the Tribunal. Physiotherapy also being a part of the treatment which the claimant has to continue, amount should have been awarded on this count also. It may not need much labour for us to assume that in order to hire a physiotherapist, one will need minimum Rs.4,000/- per month. Considering the age of the claimant and the continued physiotherapy he has to have for his survival, we award Rs.2 lakhs under this head. 22. In the result, MACA No.330 of 2008 is dismissed and MACA 1939 of 2008 is disposed of awarding an additional total compensation of Rs.19,12,161 ( Rupees nineteen lakhs, twelve thousand one hundred and sixty one only) with 7% Maca 330 & 1939/2008 18 interest from the date of petition till date of realisation. The insurance company shall produce cheque before the MACT, Kottayam for the whole amount of compensation in the name of the claimant within one month from the date of receipt of a copy of this judgment, failing which the claimant will be entitled to realise the amount. On deposit of the amount awarded by this judgment, the claimant will be allowed to withdraw the same. ## ANTONY DOMINIC, JUDGE ## P.D.RAJAN, JUDGE ## lgk/kkb Common judgment dated 12/07/2013 in M.A.C.A 330/2008 and M.A.C.A.1939/2008 is corrected vide order dated 24/01/2014 in I.A 153/2014 in M.A.C.A 330/2008 as follows: 1. The figures “Rs.3,32,416/-” and “Rs.2,56,536/-” occuring in paragraph 18 are corrected as “Rs.2,33,416/-” and “Rs.1,57,536/-” respectively. Maca 330 & 1939/2008 19 2. The words “rule 16(c) of KSR” occuring in the 3[rd] line of paragraph 18 are corrected as “Rule 60(c) of KST”. 3. The figure “Rs.19,12,161/-” occuring in the 3[rd] line of paragraph 22 is corrected as “Rs.18,36,281/-”. Sd/- Registrar (Judicial)