N.T. Balakrishnan v. Sahad, Muhammed Rafeeq & Reliance General Insurance Company Ltd

CA Nos.2385 & 2604 of 2015 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943** **MACA.No.2385 OF 2015(E)** **AGAINST THE AWARD IN OP(MV)NO. 793/2013 DATED 28-04-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/PETITIONER:** **N.T.BALAKRISHNAN AGED 43 YEARS S/O.LATE RAMANKUTTY NAIR, 'BAASURI',THENHIPALAM POST, TIRURANGADI TALUK, MALAPPURAM DISTRICT** **BY ADV. SRI.R.SREEHARI** ## **RESPONDENT/RESPONDENTS:** **1 SAHAD,AGED 22 YEARS S/O.HAMSAKOYA, ANCHALANGAL HOUSE, PERUVALLUR POST, PARAMBIL PEEDIKA, MALAPPURAM DISTRICT, PIN 673638 2 MUHAMMED RAFEEQ S/O.HASSAYIN, ATHRAPPIL HOUSE, PARAMBIL PEEDIKA, MALAPPURAM DISTRICT, PIN 676317 3 RELIANCE GENERAL INSURANCE COMPANY LTD CITADAL ARCADE, 2ND FLOR, R C ROAD, KOZHIKODE 673004 BY ADVS. SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2021, ALONG WITH MACA.2604/2015, MACA.2604/2015(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CA Nos.2385 & 2604 of 2015 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943** **MACA.No.2604 OF 2015** **AGAINST THE AWARD IN OP(MV)NO. 793/2013 DATED 28-04-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/3RD RESPONDENT:** **RELIANCE GENRAL INSURANCE CO LTD CALICUT, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** ## **RESPONDENT/RESPONDENTS:** **N T BALAKRISHNAN S/O (L) RAMANKUTTY NAIR, BAASURI HOUSE, THENHIPALAM P.O., THENHIPALAM AMSOM DESOM, THIRURANGADI TALUK, MALAPPURAM - 673 121.** **BY ADV. SRI.R.SREEHARI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2021, ALONG WITH MACA.2385/2015(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CA Nos.2385 & 2604 of 2015 3 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - ## MACA Nos.2385 & 2604 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of March, 2021 ## **COMMON JUDGMENT** The appellant in MACA No.2385 of 2015 was the petitioner in OP(MV)No.793 of 2015 on the file of the Motor Accident Claims Tribunal, Tirur. The respondents in the appeal were respondents in the claim petition. The appellant in MACA No.2604 of 2015 – insurance company - was the 3[rd] respondent in the claim petition. The respondent in the said appeal was the claimant before the Tribunal. As these appeals arise out of the same award, they were consolidated and jointly heard and are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status in the original petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, inter CA Nos.2385 & 2604 of 2015 4 alia, averring that : on 05.03.2013 while he was riding his motorcycle bearing registration No. KL 10 R 3006 from Parambil Peedika – Kadapadi, when he reached Poothumkutti, a goods autorickshaw bearing registration No. KL 65 8354 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner, hit the motorcycle driven by the petitioner. As a result of the accident, the petitioner sustained serious injuries. The offending vehicles was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The petitioner was employed as High School Assistant (Mathematics) in Government Higher Secondary School, Peruvallur and he was drawing a salary of Rs.28,148/-. The petitioner was treated at the Medical College Hospital, Kozhikode and, thereafter, at the Christian Medical College, Vellur. He was admitted as an in-patient on 05.03.2013 and discharged on 09.05.2013, then was admitted on 10.05.2013 and discharged on 20.07.2013 and thereafter was admitted on 30.08.2013 and on discharged CA Nos.2385 & 2604 of 2015 5 11.09.2013. The petitioner has become totally bedridden and cannot move without the help of the bystander. The petitioner is suffering from severe mental agony and depression and has loss of memory. The respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioner, which he quantified at Rs.93,33,000/-, but restricted to Rs.90,00,000/- 3. The 1[st] respondent entered appearance and filed a written statement admitting that he was the driver of the offending vehicle. However, he denied that there was any negligence on his part. According to him, the accident occurred due to the negligence on the part of the petitioner. 4. The 2[nd] respondent remained absent and he was set ex-party. 5. The 3[rd] respondent filed a written statement admitting that the offending vehicle had a valid insurance policy, but denied its liability on the ground that the accident occurred due to the negligence on the CA Nos.2385 & 2604 of 2015 6 part of the petitioner. It is also contended that the 1[st] respondent did not hold a valid driving license, hence there was a violation of the policy condition. Also, the petitioner was not wearing a helmet as per the statutory requirement under the Motor Vehicles Act, 1988. Hence, the 3[rd] respondent prayed that the claim petition be dismissed. 6. The petitioner examined two witnesses as PWs 1 and 2 and Exts.A1 to A18 were marked through them in evidence. The respondents marked Exts.B1 and B2 in evidence. The 3[rd] party documents were marked as Exts. X1 and X2. The Doctor of the Medical Board, who counter signed and marked Ext.C1 permanent disability certificate, was examined as CW1. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by holding that the petitioner was entitled for a compensation of Rs.30,15,212/- with interest at the rate of 9% per annum from the date of CA Nos.2385 & 2604 of 2015 7 petition till the date of realisation and proportionate costs. The 3[rd] respondent was directed to pay the compensation amount. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal the petitioner has filed MACA No.2385 of 2015 and aggrieved by the quantum of compensation awarded by the Tribunal, the 3[rd] respondent has filed MACA No.2604 of 2015. 9. Heard Sri.R.C.Sreehari, the learned Counsel appearing for the petitioner and Sri.Geroge Cherian, the learned Senior Counsel appearing for the 3[rd] respondent – Insurance Company. 10. The learned Counsel for the petitioner argued that the quantum of compensation awarded by the Tribunal was considerably low. The petitioner had actually claimed an amount of Rs.90,00,000/- as compensation, but the Tribunal has only awarded an amount of Rs.30,15,212/-. According to him, the Tribunal has not taken into account the permanent disability of CA Nos.2385 & 2604 of 2015 8 the petitioner, which was assessed by the Medical Board as per Ext.C1 at 73%. Similarly, the Tribunal has awarded compensation under the head 'loss of earnings' at only Rs.3,36,000/-, which again is on the lower side, especially taking note of the fact that the petitioner has a permanent disability of 73%. It was also contended that the amount awarded by the Tribunal towards future treatment was on the lower side. The Tribunal has limited the compensation under the head 'pain and sufferings' at Rs.1,00,000/- instead of Rs,2,00,000/claimed by the petitioner. Therefore, he sought for enhancement of the quantum of compensation. 11. Sri.George Cherian, the learned Senior Counsel for the 3[rd] respondent, per contra, contended that the quantum of compensation awarded by the Tribunal is excessive. He took me through the oral testimonies of PWs 1 and 2 and contended that they have admitted in unequivocal terms that the petitioner is now attending his work as a High School Assistant. CA Nos.2385 & 2604 of 2015 9 Therefore, the petitioner cannot be said to be having any permanent disability as fixed by the Tribunal at 50%. According to him, the assessment made by the Tribunal is erroneous because the petitioner is not having any disability and is earning his monthly salary as prior to the accident. He further argued that the petitioner has admittedly received an amount of Rs.3,28,104/- as per the Medi-Claim Insurance policy, therefore, the amount of Rs.4,75,212/- awarded by the Tribunal under the said head is unsustainable in law. The petitioner has received reimbursement, as per the medi-claim policy, of Rs.3,28,104/-, which has to be deducted. It was also contended that the loss of earnings fixed by the Tribunal at Rs.28,000/- for the period of 12 months is on the higher side, especially since the Tribunal has not deducted any amount towards income tax as well as the personal living expenses of the petitioner. Moreover, the Tribunal has given compensation under two heads namely towards the 'bystander expenses' and 'loss of CA Nos.2385 & 2604 of 2015 10 earnings' of the petitioner's wife (PW1) at Rs.96,000/-. He prayed that the quantum of compensation awarded by the Tribunal has to be reduced as contended above. 12. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 13. There is no dispute with regard to the accident that occurred and the injury sustained by the petitioner. Ext.A4 final report filed by the police after investigation proves that the accident occurred solely due to the negligence on the part of the 1[st] respondent. Exts.A5 to A7 discharge summaries establish that the petitioner CA Nos.2385 & 2604 of 2015 11 was treated as an in-patient for a period of 198 days in three different hospitals. Ext.C1 disability certificate proves that the petitioner has a permanent disability of 73%. Like wise, Ext.A8 salary certificate substantiates that the petitioner was drawing a monthly salary of Rs.28,000/-. Similarly, Ext.A16 salary certificate pertains to the salary that was being drawn by the petitioner's wife (PW1). It was after the evaluation of all these documents that the Tribunal fixed the quantum of compensation. 14. The principal area of dispute in these appeals is the compensation awarded by the Tribunal under the head loss due to disability with future prospects. ## **Multiplier** 15. As seen from the oral testimony of PWs 1 and 2, the petitioner is still continuing to go for work. Therefore, eventhough the petitioner has 73% of disability, he does not have any loss in his income. In such circumstances, the loss due to disability with CA Nos.2385 & 2604 of 2015 12 future prospects can only he calculated after the superannuation of the petitioner at '56' years of age. Admittedly, the petitioner, as on the date of accident, was only 43 years. Therefore, the loss due to permanent disability of the petitioner can be calculated after the petitioner attains the 56 years. Then the relevant multiplier would be '9'. ## **Future prospects** 16. Going by the law laid down by the Hon'ble Supreme Court in **Pappu Deo Yadav v. Naresh Kumar and Others** (AIR 2020 SC 4424) and a host of decisions on the point, the petitioner is entitled for future prospects, after his retirement. Thus, the petitioner is entitled for compensation under the head 'loss due to disability with future prospects' after superannuation. As already held, then the relevant multiplier would be '9'. However, after the retirement of the petitioner, he would only earn 50% of the salary than what he is presently drawing. Hence, I re-fix the petitioner's income after the CA Nos.2385 & 2604 of 2015 13 retirement age, at Rs.12,500/- instead of 28,500/- that is after the statutory deductions including income tax. Accordingly, I re-assess and re-fix the compensation under the head 'loss due to disability with future prospects' at Rs.11,33,325/- instead of Rs.60,80,000/awarded by the Tribunal. ## **Loss of earnings** 17. The Tribunal has awarded an amount of Rs.3,36,000/- under the head 'loss of earnings'. The Tribunal loss sight of the decision of the Hon'ble Supreme Court in **National Insurance Company v. Indira Srivastava** [2008(1) KLT 62 (SC)] and **Kalpanaraj and Others v. Tamil Nadu State Transport Corporation** [2015) 2 SCC 764 (DB)] wherein, it has been held that the statutory deductions particularly, income tax has to be taken into account while arriving at the income of the victim/deceased. In the said circumstances, taking into consideration the fact that the petitioner was drawing a salary of Rs.28,500/- CA Nos.2385 & 2604 of 2015 14 minus 10% towards statutory deductions, I hold the petitioner's net income can be fixed at Rs.25,000/- per month. More over, 1/3[rd] of the amount would also have to be deducted towards living expenses of the petitioner. Therefore, I re-fix and re-assess the salary of the petitioner, after the aforesaid statutory deductions and personal expenses, at Rs.20,000/- per month. Accordingly, the petitioner is entitled for loss of earnings for a period of 12 months at the rate of Rs.20,000/-, which comes to Rs.2,40,000/- ## **Medical Expenses.** 18. The Tribunal awarded the petitioner Rs.4,47,212/- towards medical expenses based on Ext.A11 series medical bills and Ext.A12 series receipts produced before the Tribunal. Admittedly, the petitioner had received a reimbursement of Rs.3,28,104/- under the medi-claim policy. The petitioner cannot obtain double benefit. Hence, the amount of Rs.3,28,104/- received under the medi-claim policy has to be deducted from the CA Nos.2385 & 2604 of 2015 15 total medical expenses incurred by the petitioner. Therefore, I re-fix the medical expenses of the petitioner at Rs.1,47,108/-. ## **Loss of salary of petitioner's wife** 19. The tribunal awarded an amount of Rs.96,000/towards loss of salary of the petitioner's wife. It is proved by Annexure A16 salary certificate that the petitioner's wife was drawing a monthly salary of Rs.32,708/- as she was employed as an Higher Grade Assistant in LIC of India. It is proved that the petitioner's wife (PW1) was looking after him for a period of 88 days, while the petitioner was treated as an in-patient . In such circumstances, the Tribunal fixed an amount at Rs.96,000/- towards loss of salary. I find the fixation of compensation under the said head to be reasonable and just. ## **Bystander expenses** 20. Now coming to the bystander expenses. It is proved that the petitioner was treated as an in-patient CA Nos.2385 & 2604 of 2015 16 for a period of 198 days. After deducting 88 days wherein he was looked after by his wife – PW1, the petitioner continued to be hospitalised for 110 days. Therefore, I re-fix bystander expenses, considering that the accident was in the 2013, at Rs.500/- per day. Accordingly, I fix the bystander expenses at Rs.55,000/-. ## **Other heads of claim** 21. With respect to the other heads of claim namely transport, clothing, extra nourishment, pain and sufferings, loss of amenities and future treatment, I find that the Tribunal has awarded reasonable and just compensation. 22. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I am of the firm opinion that the impugned award has to be modified and the petitioner is entitled for compensation as modified and recalculated above and given in the table below for easy reference. CA Nos.2385 & 2604 of 2015 17 |Sl.<br>No|Heads of claim|Amount awarded by the<br>Tribunal (in rupees)|Amounts modified<br>and recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|3,36,000/-|2,40,000/-| |2|Transport|25,000,/-|25,000/-| |3|Clothing|3,000/-|3,000/-| |4|Bystander expenses|50,000/-|55,000/-| |5|Extra nourishment|50,000/-|50,000/-| |6|Medical expenses|4,75,212/-|1,47,108/-| |7|Pain and sufferings|1,00,000/-|1,00,000/-| |8|Loss of amenities|1,00,000/-|1,00,000/-| |9|Future treatment|1,00,000/-|1,00,000/-| |10|Loss due to disability|16,80,000/-|11,33,235/-| |11|Loss of earning power|96,000/-|| |||30,15,202/-|19,53,345/-| In the result, the appeals are disposed of, by modifying the impugned award passed by the Tribunal and re-fixing the compensation at Rs.19,53,345/- i.e, by reducing the compensation awarded by the Tribunal by Rs.10,61,867/-. The third respondent/insurance company shall pay the re-fixed compensation of Rs.19,53,345/with interest at the rate of 9% per annum from the date of petition till the date of payment with proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal CA Nos.2385 & 2604 of 2015 18 shall disburse the compensation to the petitioner with proportionate interest and costs in accordance with law. **Sd/-** **C.S.DIAS,JUDGE** dlk 24.03.2021