New India Assurance Company Ltd v. Geetha Varma (MACA No. 307/2018; CO No. 45/2023)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 MACA NO. 307 OF 2018** **AGAINST THE AWARD IN OPMV 760/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/3RD RESPONDENT:** THE NEW INDIA ASSURANCE COMPANY LTD ERNAKULAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ## **RESPONDENT/CLAIMANT:** GEETHA VARMA, W/O.RAMESH VARMA, EDOOP PALACE 19, TRIPUNITHURA, TRIPUNITHURA MUNICIPALITY, ERNAKULAM, PIN 682301 BY ADVS. SRI.AKHIL S.VISHNU SRI.P.N.SUKUMARAN THIS APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2023, ALONG WITH CO.45/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.307/2018 & CO.45/2023 2' ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945** **CO NO. 45 OF 2023** **AGAINST THE AWARD IN OPMV 760/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **CROSS OBJECTOR/RESPONDENT/CLAIMANT:** GEETHA VARMA, W/O RAMESH VARMA, EDOOP PALACE 19, TRIPPUNITHURA, TRIPPUNITHURA MUNICIPALITY, ERNAKULAM, PIN - 682301 BY ADVS. AKHIL S.VISHNU D.CHANDRASENAN ## **RESPONDENT/APPELLANT/3RD RESPONDENT:** NEW INDIA ASSURANCE COMPANY LTD. ERNAKULAM REPRESENTED BY ITS DEPUTY MANAGER REGIONAL OFFICE, M.G ROAD, ERNAKULAM. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 12.04.2023, ALONG WITH MACA.307/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.307/2018 & CO.45/2023 3' ## **JUDGMENT** ## **[MACA Nos.307/2018, 45/2023]** Smt.Geetha Varma was a trainer in banking and allied fields. On 05.10.2013, she was hit by an offending motorcycle, ridden in a very rash and negligent manner, while she was waiting for a bus at the Aluva Arogyalayam stop. She suffered very grievous injuries and had to be hospitalised and treated as an inpatient for several days, leading to complete loss of her cognitive faculties and resultant loss of employment; thus, constraining her to file OP(MV)No.760/2014 before the Motor Accidents Claims Tribunal, Ernakulam (the 'Tribunal' for short), seeking compensation of an amount of Rs.1,05,23,000/-, limited to Rs.75,00,000/-; but which has been allowed to a sum of Rs.56,63,200/-. 2. The New India Assurance Company Limited – which insured the offending motorcycle, however, filed this appeal impugning the afore Award of the Tribunal, as being excessive. 3. Smt.K.S.Santhi – learned Standing Counsel for the appellant – Insurance Company, argued that the notional income adopted by the learned Tribunal in favour of MACA No.307/2018 & CO.45/2023 4' Smt.Geetha Varma is too high; while the multiplier adopted by it, for the purpose of reckoning the compensation under the head “Disability”, is much more than what is legally authorised. She also assailed the compensation awarded by the learned Tribunal under the heads “Future Treatment Expenses” and “Loss of Amenities and Comforts”; and thus prayed that this appeal be allowed. 4. In refutation, Sri.D.Chandrasenan – learned counsel appearing for Smt.Geetha Varma, argued that his client was an accomplished Kathakali artist, in addition to being a trainer for various institutions, including banks. He pointed out that, consequent to the horrific accident, she has been reduced to a vegetative state and forced to be under assisted living, being without any control of her cognitive faculties; thus altering her life for ever, from being a vibrant young lady to one who is now fully bedridden. He asserted that, therefore, the Insurance Company ought not to have filed this appeal at all, particularly because his client surely is entitled to even a much higher figure than now granted. 5. Sri.D.Chandrasenan, thereafter, pointed out that, for the afore reasons, his client has filed C.O.No.45 of 2023, seeking enhancement of compensation in her favour, MACA No.307/2018 & CO.45/2023 5' particularly because she is entitled to larger sums under the heads “Pain and Sufferings”, “Loss of Amenities and Comforts”, “Extra Nourishment” and “Attendant Expenses”. He thus prayed that C.O.No.45 of 2023 be allowed and the appeal be dismissed. 6. I have evaluated the afore rival submissions on the touchstone of various materials and evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that they can be acted upon by this Court without dispute. 7. As evident from the afore narrative, the primary contest between the parties is with respect to the notional income of Smt.Geetha Varma; and the adequacy or otherwise of the compensation awarded by the Tribunal under the heads of “Pain and Sufferings”, “Loss of Amenities and Comforts”, “Future Treatment Expenses”, “Extra Nourishment” and “Attendant Expenses”. 8. On the question of the income of Smt.Geetha Varma, the learned Tribunal has fixed it to be Rs.35,000/- per month, after assessing the evidence available on record. The discussion of the learned Tribunal in this regard is available in paragraph 9 of the Award which is as follows: MACA No.307/2018 & CO.45/2023 6' “Ext.A17 salary savings account status would reveal the deposit of Rs.31,025/- towards salary for the month of January 2009, Rs.30,930/- towards the salary for the month of February 2009, Rs.52,386/- towards the salary for the month of March 2009 and Rs.30,790/- each towards the salary for the months of April and May 2009. Apart from that the same exhibit would reveal the salary credit for the month of April 2012 was Rs.48,407/- and May 2012 was Rs.41,036/-. So from the available records now it is established that the salary of the victim at the time of the accident was in between Rs.41,000/- and Rs.48,000/-. Admittedly no evidence has let in to prove the different heads of salary. So it is not possible to deduct any sum from the salary details herein above noted in Ext.A17 towards incentives and perks. In fact the employment of the claimant in IDBI Federal Life Insurance has seen not objected on the part of R3. It is true that Ext.A21 worksheet for gratuity and final settlement would indicate that she was having the basic pay to the tune of Rs.25,972/- in the year 2014. The final settlement details attached with Ext.A21 would indicate that on 31.03.2014 ie. on the date of separation from her occupation she was having the basic pay to the tune of Rs.19,988/-. But the worksheet for gratuity attached with Ext.A21 would denote that she was having the basic pay to the tune of Rs.25,972/- on the date of retirement. In spite of such discrepancies claimant has seen not taken any steps to prove her salary on the date of the accident. As per Ext.A24 claimant is succeeded to prove her separation from the occupation on account of the poor health developed due to the accident. Admittedly Ext.X1 indicates cognitive impairment secondary to head injury to the extent of 50%. If that be so, though there is no oral evidence on the part of the claimant regrading the separation from her job on account of the injuries sustained in the accident, the disability noted by the Medical Board under the relevant head is sufficient to prove the same. So in my opinion from the available evidence claimant is succeeded to prove the fact that she was forced to quit her job because of the injuries sustained to brain. Admittedly the retirement age of the victim is 60 years. If that be so, she could have continue in service for 9 more years. Considering the available evidence her monthly salary can be fixed to the tune of Rs.35,000/- for want of sufficient evidence to prove the exact salary.” 9. I must say that I find favour with the afore conclusions of the learned Tribunal because, as it has correctly found from Ext.A17 – Bank Statement, it could MACA No.307/2018 & CO.45/2023 7' establish that Smt.Geetha Varma was drawing a salary between Rs.41,000/- and Rs.48,000/- at the time of the accident. No contra evidence has been impelled by the Insurance Company, and this is pertinent because Ext.A17 records her salary without any incentives or perks being mentioned therein. It is also uncontested that, at the time of the accident, Smt.Geetha Varma was working in the “IDBI Federal Life Insurance Ltd.” as a trainer; and Ext.A21 – Work Sheet, which relates to her gratuity and final settlement, indubitably shows that her basic pay was Rs.25,972/- in the year 2014. Ext.A24 – Job Termination Certificate would then show that she lost her employment on account of the accident, which is not surprising when Ext.X1 – Disability Certificate records her cognitive impairment to be 50%. 10. I, therefore, cannot find the conclusion of the learned Tribunal, that the average income of Smt.Geetha Varma at the time when the accident occurred was Rs.35,000/-, to be in any error and hence find no reason to interfere with it in any manner whatsoever. This is more so because, even though a higher figure could have certainly been adopted by the learned Tribunal, it confined itself to Rs.35,000/-, because the average of the income proven MACA No.307/2018 & CO.45/2023 8' through the various documents, as mentioned above, would be in the vicinity of the said figure. Though the appellant – Insurance Company asserts that some amount of tax may have been deducted from the said figure, in the absence of any evidence to prove the same, I find no reason to accede to it and hence confirm the findings of the learned Tribunal, that the notional income of Smt.Geetha Varma is reckonable at the figure of Rs.35,000/- per month, at the time of the accident. 11. Next is the question as to what is the actual disability suffered by Smt.Geetha Varma. Ext.X1 – Disability Certificate unequivocally records her whole body disability, consequent to the head injury sustained by her, to be 50%. The further medical evidence, particularly Ext.A2 – Wound Certificate, establishes that, apart from abrasions and other minor injuries, Smt.Geetha Varma had suffered “right temporal pole extradural hematoma, right parietal extradural haemorrhage, left temporo parietal subarachnoid and contusion haemorrhage, subarachnoid bleed, brain contusion, right eye per orbital edema, contusions over right parietal region, dyslipidema, hyponatremia” (sic). The CT scan, which is available on record, confirms the above, MACA No.307/2018 & CO.45/2023 9' including right temporal extra dural haematoma, right parietal extra dural haematoma and sub archnoid bleed and brain contusion. The hospitals which treated her have recorded in the discharge summaries, including Ext.A3, that she has suffered severe head injury and also had to endure other conditions, including hyponatremia, which, of course, the learned Tribunal has, prima facie, found to be not directly attributable to the accident. However, Ext.A4 – Discharge Summary records right eye periorbital edema and contusions over the right parietal region of Smt.Geetha Varma; and that she had to undergo decompressive craniectomy, with extra dural haemorrhage evacuation and placement of bone flap in her abdomen, under General Anaesthesia. She had to be ventilated electively under relaxants and sedation, and the learned Tribunal has then held that it is, perhaps consequent to all this, that hyponatremia was also induced. The evidence further shows that she was discharged on 18.10.2013; but had to undergo physiotherapy and supportive care at home, further to endure ayurvedic treatment, for pain on her left ankle and heel, numbness of left shoulder and weakness of her left leg, along with reduced perception of taste. It is after assessing MACA No.307/2018 & CO.45/2023 10' all these that Ext.X1 – Disability Certificate recorded the permanent disability of Smt.Geetha Varma to be 50%, but it specifically certifies that she has suffered very grievous head injury. 12. When the afore is noticed, one must then assess the aftermath of the injuries on Smt.Geetha Varma, whose avocation requires focused intellectual capacity, as also sharpness in thinking and assessment. The head injury has left her with extremely impaired cognitive faculties and it is without doubt – as is also undisputed – that she lost her job as a trainer, consequently. The learned Tribunal has, therefore, fixed her functional disability to be 75%, even though Ext.X1 certified her whole body disability to be only 50%. I am of the firm view that the learned Tribunal has acted without error at all in doing so because, Smt.Geetha Varma would be unable to obtain any employment or placement or to engage in any avocation similar to what she was enjoying at the time of the accident for the rest of her life. That said, though not specifically on record, the submission of her learned counsel, Sri.D.Chandrasenan, that she was an accomplished dancer, would really underpin the horrific aftermath of the accident. MACA No.307/2018 & CO.45/2023 11' 13. Viewed from the afore perspective, I have no doubt that Smt.Geetha Varma is entitled to compensation to the maximum extent as is warranted in law; but, the question arises whether the learned Tribunal could have granted compensation both for 'disability' and for 'loss of earnings' under two different heads, adopting two different multipliers and different yardsticks of income. In this regard, I am certainly in favour of the Insurance Company and I am of the opinion, guided by the various precedents that cover this area, that the learned Tribunal could have only reckoned the notional income of Smt.Geetha Varma, adding the eligible future prospects as per **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)]; and then to have adopted the multiplier, as is authorised by **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)]. 14. Coming to the compensation awarded by the Tribunal under the head 'pain and suffering' and 'loss of amenities', I notice that it has only granted Rs.75,000/- and Rs.1,00,000/- respectively under these heads. For the very same reasons that I have said above, these sums are extremely exiguous and I have no doubt that they have to be substantially increased, which I propose to be Rs.1,50,000/- MACA No.307/2018 & CO.45/2023 12' and Rs.2,00,000/- respectively. 15. Coming to the question of compensation under the heads 'extra nourishment' and 'attendant charges', I notice that the learned Tribunal has granted Rs.35,000/- and Rs.9,200/- respectively, taking note of the fact that Smt.Geetha Varma had suffered not more than 40 days of inpatient treatment. I do not propose to enhance the compensation under the head 'extra nourishment', but for 'attendant charges', certainly, an amount of Rs.500/- per day would be the least that she would have expended. 16. Needless to say, the compensation awarded by the Tribunal under the additional heads of 'disability' and 'short expectation in life' would both require to be deleted. In the afore circumstances, I order this appeal and Cross Objection in part, in the following manner: (a) The compensation under the head 'loss of earnings' - which, in fact, is for “disability” - is enhanced to Rs.51,18,750/-, from Rs.37,80,000/- awarded by the Tribunal, reckoning the notional income of the Cross Objector to be Rs.35,000/- per month, with 25% future MACA No.307/2018 & CO.45/2023 13' prospects added and the multiplier of '30' adopted, as conceded by the parties, which is in tune with **Sarla Verma** (supra). (b) The compensation under the head 'pain and suffering' is enhanced to Rs.1,50,000/-, from Rs.75,000/awarded by the Tribunal. (c) The compensation under the head 'loss of amenities' is enhanced to Rs.2,00,000/-, from Rs.1,00,000/awarded by the Tribunal. (d) The compensation under the head 'hospital attendant charges' is enhanced to Rs.20,000/- from Rs.9,200/-, reckoning Rs.500/- per day as expenses for the same in the year 2013 - when the accident occurred - for a total of 40 days of hospitalisation. (e) The sum now awarded by the Tribunal under the head 'compensation for disability' of Rs.12,60,000/- is deleted. (f) The compensation awarded by the Tribunal under the head 'short expectation in life' of Rs.25,000/- is deleted. (g) In all other respects, the Award of the Tribunal will MACA No.307/2018 & CO.45/2023 14' stand intact. Needless to say, the Cross Objector will be at full liberty to recover the compensation, as modified by this Court from the Insurance Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **Sd/- DEVAN RAMACHANDRAN** **JUDGE** anm/stu