Raveendran Nair and Sujatha (Legal heirs of Vishnu R. Nair) vs Sumesh S/O Chellappan; Shijo Thampi Ambalakadavil; The Divisional Manager, New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943** ## **MACA.No.2405 OF 2015(A)** **AGAINST THE AWARD IN OPMV 1075/2010 DATED 14-01-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANTS/LEGAL HEIRS OF THE CLAIMANT:** - **1 RAVEENDRAN NAIR RESIDING AT MANGALATHU HOUSE, PERUMBAIKADU POKOTTAYAM** **2 SUJATHA W/O RAVEENDRAN NAIR RESIDING AT MANGALATHU HOUSE, PERUMBAIKADU PO, KOTTAYAM** **BY ADVS. SRI.JOMY GEORGE SRI.SEBASTIAN THOMAS** ## **RESPONDENTS/RESPONDENTS:** - **1 SUMESH S/O CHELLAPPAN, NELLITHANAM HOUSE, KURUCHY OUTPOST BHAGOM, KURUCHY PO,KOTTAYAM. (DRIVER)-686 532** - **2 SHIJO THAMPI AMBALAKADAVIL HOUSE, KURUCHI PO,KOTTAYAM (OWNER)-686 532** - **3 THE DIVISIONAL MANAGER NEW INDIA ASSURACE CO.LTD, KOTTAYAM-686 001(POLICY NO. 706102/31/07/01/00007160)** **R3 BY ADVS. SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2021, THE COURT ON 09-04-2021 DELIVERED THE FOLLOWING:** **MACA.No.2405 OF 2015(A)** 2 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 2405 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of April, 2021 ## **JUDGMENT** The appellants are the parents and legal heirs of Vishnu R.Nair, who was the petitioner in OP(MV)No.1075 of 2010 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the respondents in the claim petition. The parties are, for the sake of convenience and wherever the context so requires, referred to as per their status in the claim petition. 2. The petitioner – Vishnu R.Nair had filed the claim petition under Section 166 of the Motor Vehicle Act, 1988 ( in short 'Act') through his next friend and father – the 1[st] appellant – seeking compensation on account of grievous injuries that he has sustained in an accident that occurred on 01.08.2008. It was the case of the petitioner that: on 01.08.2018 while he was riding **MACA.No.2405 OF 2015(A)** 3 his motorcycle bearing registration No.KL 5 Y 4143 through the M.C. Road, when he reached Kodimatha Bhagam, a Bus bearing registration No.KL 5 F 4275 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner hit the motorcycle. The petitioner sustained the following injuries: - “1. Grade 1 compound tibia and Fibula fracture right leg 2. Acute subdural hemorrhage in the right front parietal convexity 3. Right tentorial subarachnoid hemorrhage 4. Diffuse brain edema 5. Intraventricular hemorrhage in the right lateral ventricle and 4[th] ventricle 6. Hemorrhage contusion right frontal lobe 7. Hemorrhage contusion left cerebellar hemisphere 8. Subdural hemorrhage extending along tentorium and posterior inter hemispheric fissure 9. Haimor hagic contusion in right frontal and left cerebellum 10. Multiple laceration over face 11. The injured is still unconscious.” **MACA.No.2405 OF 2015(A)** 4 3. The petitioner was taken to the Medical College Hospital, Kottayam and, thereafter, shifted to the Amritha Institute of Medical Sciences and Research Centre, Ernakulam, where he was treated as an in-patient from 02.08.2008 to 22.09.2008. The petitioner was treated with open reduction wound debridement and external fixation under general Anesthesia. He also was given Endo tracheal tube. The CT scan showed acute subdural hemorrhage, intra ventricular hemorrhage in the right lateral ventricle and 4[th] ventricle, diffused brain edema, left cerebellar hemisphere, hypodensity in the left internal capsule and preventricular region. The petitioner was electively ventilated and started with antiepileptic anti edema measures. He also underwent tracheostomy for tracheal toileting. Eventhough, he was discharged from the hospital, he was advised bystander help and supportive care of a local hospital. Nearly Rs.5,00,000/was expended for his medical treatment. The petitioner was in a comatose state and on liquid diet. The accident occurred solely due to the rash and negligent driving of **MACA.No.2405 OF 2015(A)** 5 the offending vehicle by the 1[st] respondent. The offending vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Therefore, the respondents were jointly and severally liable to compensate the petitioner. The petitioner was employed as a sales executive in JJ Marbles and Granites, Neelimangalm and drawing a monthly salary of Rs.12,000/-. Hence, the petitioner was entitled to compensation from the respondents, which he quantified at Rs.45,00,000/-. 4. The respondents 1 and 2 did not contest the proceeding and were set ex-parte. 5. The 3[rd] respondent filed a written statement, inter alia, contending that the compensation claimed by the petitioner was on the higher side. The 3[rd] respondent admitted the offending vehicle had a valid insurance policy issued by it. 6. The petitioner examined PW1 – his employer and marked Exts. A1 to A21(g) in evidence. The Standing Disability Assessment Board certificate issued by the Medical Board of the Medical College Hospital, Kottayam **MACA.No.2405 OF 2015(A)** 6 was marked as Ext.X1. 7. The Tribunal, after analysing the pleadings and materials on record, fixed the permanent disability of the petitioner at 100% and allowed the claim petition in part by permitting the petitioner to realise an amount of Rs.20,09,230/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation along and proportionate costs from the respondents. The 3[rd] respondent was directed to pay the compensation amount. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner's parents/appellants have preferred the appeal because the petitioner expired on 19.09.2013, 8 months after the passing of the award. This Court allowed I.A.No.3 of 2021 by granting leave to the appellants to prosecute the appeal as the legal heirs of the deceased, for enhancement of compensation. 9. Heard Sri. George J.Moolamkunnam, the learned counsel representing Sri.Jomy George and Sri. **MACA.No.2405 OF 2015(A)** 7 Lal K.Joseph, the learned Counsel appearing for the 3[rd] respondent. 10. The learned counsel appearing for the 3[rd] respondent argued that as the petitioner passed away subsequent to the award, the claim petition has to be treated/converted as a death claim instead of an injury claim. According to the learned counsel, as the petitioner is now no more, his parents are not entitled for the compensation under certain heads that are available to an injured. Therefore, compensation may be calculated as one of a death claim. 11. the accident occurred on Undisputedly, 01.08.2008 and the claim petition was filed on 16.09.2010. The award was passed on 14.01.2013. It was eight months after the award was passed, that the petitioner succumbed to the injuries on 19.09.2013. The claim had crystallized into an award before the death of the petitioner. The appellants, who are admittedly the legal heirs/representatives of the deceased-petitioner, have succeeded/inherited the fruits of the award and **MACA.No.2405 OF 2015(A)** 8 have the vested legal right to prosecute the claim petition by virtue of Section 166(1) of the Act. According to me, as the Act is a beneficial legislation, the appellants, who have lost their precious off spring in a tragic accident, are entitled to highest rate of compensation, which would be the only succor and salvation for them, to tide over the irreparable, untimely and unquantifiable loss that has occurred in their lives. On a comparative analysis of the compensation payable in a claim petition filed for compensation for death and for injury, more compensation would be payable in a claim petition for injury. Therefore, I am of the view that the appellants are entitled to the benefit of the higher rate of compensation 12. Further more, the petitioner passed away five years after the accident and eight months after the award was passed. Thus, the right to sue, for enhancement of compensation as a case of injury, has survived on the appellants, as the appeal is only the continuation of the claim petition. **MACA.No.2405 OF 2015(A)** 9 13. This Court taking note of the above aspects and the peculiar facts of the case had already granted leave to the appellants to prosecute the appeal. Thus, I hold that the contention of the learned counsel for the 3[rd] respondent is untenable and unsustainable in law. Hence, I proceed to decide the appeal as a claim for injury. 14. The question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 15. Ext.A2 charge-sheet filed by the Chingavanam Police in Crime No.299 of 2008 substantiates that the accident occurred solely due to the negligence on the part of the 1[st] respondent, who drove the offending vehicle in a rash and negligent manner. Undisputedly, the offending vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Therefore, the 3[rd] respondent is liable to indemnify the 2[nd] respondent for the payment of compensation on the strength of the valid **MACA.No.2405 OF 2015(A)** 10 insurance policy. Ext.A1 FIR and Ext.A4 AMVI report corroborates with Ext.A2 charge-sheet. Thus, it is only to be concluded that the accident was caused due to the negligence on the part of the 1[st] respondent. 16. Ext.A9 and A10 discharge cards and Exts. A11, A12 and A16 discharge summaries clearly substantiate the injuries sustained by the deceased - petitioner on account of the accident. He was treated as an in-patient for a period of 70 days from the 20.10.2010 to 28.11.2012 as evident from the above referred discharge summaries. The injuries which have been extracted above substantiates the severity of the accident and that the deceased-petitioner was in a vegetative state. 17. Pursuant to the directions of the Tribunal, the deceased-petitioner was referred to a competent Medical Board constituted by the Medical College Hospital, Kottayam. The Medical Board after examining the deceased-petitioner found that he was in a comatose state and was unable to take care of himself. The Medical Board by Ext.X1 has certified the disability of the **MACA.No.2405 OF 2015(A)** 11 deceased-petitioner at 90%. Taking note of the gruesome injuries sustained by the deceased-petitioner and that he was in a vegetative state, the Tribunal fixed his functional disability /whole body disability at 100%. With the materials available on record, I fully endorse and concur with the assessment made by the Tribunal regarding the disability of the deceased-petitioner at 100%. 18. The principal area of dispute in the appeal is with regard to the notional income of the deceasedpetitioner. The deceased-petitioner had claimed that he was working as a Sales Executive in JJ Marbles and Granites at Neelimangalam and drawing a monthly income of Rs.12,000/-. PW1 was examined to prove the income and employment of the deceased-petitioner. However, the Tribunal, on finding that the oral testimony of PW1 was not inspiring, went on to fix the notional monthly income of the deceased-petitioner at Rs.5,000/following the ratio in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company**_ **MACA.No.2405 OF 2015(A)** 12 ## _**Limited**_ [ _(2011) 13 SCC 236_ ]. 19. Admittedly, the deceased- petitioner was only 22 years of age as on the date of accident i.e, on 01.08.2008. The petitioner had produced Ext.A15 income tax acknowledgement form dated 15.09.2008 to prove that he had an income of Rs.1,08,250/- per annum. However, the Tribunal brushed aside Ext.A15 on the ground that the acknowledgment slip was subsequent to the date of accident. As already noted the decea **s** edpetitioner was only 22 years of age and claimed that he was a Sales Executive in a marble retail outlet. ## **Notional income** 20 The Hon'ble Supreme Court in **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735] has fixed the notional income of a vegetable vendor in the year 2008 at Rs.6,500/- per month. Similarly, in **Pushkar Mehra v. Brij Mohan Kushwaha and others** [2015(12)SCC 688], the Hon'ble Supreme Court has fixed the notional income of a skilled labourer/technical supervisor, in the year 2004, at **MACA.No.2405 OF 2015(A)** 13 Rs.7,000/- per month. Like wise, in **Radhakrishana V. Gokul** [2013 (16) SCC 585], the Hon'ble Supreme Court fixed the notional monthly income of an Engineering student at Rs.10,000/-. 21. Following the parameters laid down by the Supreme Court in the afore-cited decisions and taking note of Ex.A15 acknowledgment form, eventhough the petitioner had claimed Rs.12,000/- income per month, I am of the considered opinion that the income shown in Ext.A15 can be taken as a guideline to fix the notional income of the deceased-petitioner. In the said circumstances, I fix the notional income of the deceasedpetitioner at Rs.9,000/- per month. ## **Loss of earnings** 22. Undisputedly, the petitioner was in a totally vegetative state from the date of accident on 01.08.2008 till the date of his death on 19.09.2013. He was in coma all through out the said period. In view of the grant of compensation under the head 'loss due to disability', I limit his 'loss of earnings' for a period of 12 months on **MACA.No.2405 OF 2015(A)** 14 the basis of the re-fixed notional income at Rs.9,000/-. Hence, the petitioner is entitled for compensation under the head 'loss of earnings' at Rs.1,08,000/- instead of Rs.50,000/- fixed by the Tribunal. ## **Bystander expenses** 23. The next question is relating to the bystander expenses fixed by the Tribunal. The learned counsel appearing for the appellant argued that it was specifically pleaded in the claim petition that the deceased-petitioner was in a vegetative state for a period of 5 years. He needed the assistance of two bystanders to be looked after. Therefore, the deceased-petitioner was entitled for reimbursement of bystander expenses for a period of 1830 days i.e., from the date of accident till the date of his death. Hence, the bystander expenses had to be re-fixed for two persons at Rs.250/- per day for the period of 1830 days. He relied on the decision of the Hon'ble Supreme Court in **Kajal v. Jagadish Chand** [2020(1) KLT 743(SC)], wherein it was held that the bystander expenses shall not be limited to bills, but has **MACA.No.2405 OF 2015(A)** 15 to be awarded on the basis of the multiplier method. Nevertheless, in a recent decision of the Hon'ble Supreme Court in **Lalan D. and another v. Oriental Insurance Company Limited** [2020(9) SCC 805], the Hon'ble Supreme Court after relying on **Kajal** (supra) has gone on to hold that the bystander expenses should be calculated in a composite manner. 24. After considering the materials on record, I am of the firm view that the deceased-petitioner is entitled for bystander expenses only for one person, for the period of 1830 days, particularly because his medical expenses have been directed to be reimbursed and his parents were also looking after him. Considering the peculiar facts and circumstances of the case where a young boy had to lie in a vegetative state for five years and finally loose his life, I am of the definite opinion that the petitioner is entitled to a composite compensation under the head 'bystander expenses' which is fixed at Rs.4,57,500/-, i.e. Rs.250/- per day x 1830 days, which I deem is reasonable and just. **MACA.No.2405 OF 2015(A)** 16 ## **Loss due to disability with future prospects** 25. In **Sarala Varma and others v. Delhi Transport Corporation and others** [ **(2010) 2 KLT 802** ] and the Constitution Bench decision of the Hon'ble Supreme Court in **National Insurance Company Ltd.** **v. Pranay Sethi** [(2017) 16 SCC 680], the Hon'ble Supreme Court has categorically held that in addition to compensation due to 'loss due to disability' the victim is also entitled for future prospects. As the deceased – petitioner was 22 years of age at the time of the accident, the relevant multiplier is '18'. Taking note of the notional income of Rs.9,000/-, I fix the compensation under the head 'loss due to disability with future prospects, at Rs.27,21,600/- instead of Rs.9,72,000/- awarded by the Tribunal. ## **Other heads of claim** 26. With respect to the other heads of claim namely transportation, clothing, extra nourishment, medical expenses, pain and sufferings, loss of amenities, future treatment and loss of marriage prospects, I find that the **MACA.No.2405 OF 2015(A)** 17 Tribunal has awarded reasonable and just compensation. 27. On an overall re-appreciation of the pleadings and materials on record, the law laid down by the Hon'ble Supreme Court in the afore-referred decisions and in the light of the above proceedings, I am of the definite opinion that the appellants are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Loss of earnings|60,000/-|1,08,000/-| |2|Transport|8,955/-|8,955/-| |3|Clothing|1,000/-|1,000/-| |4|Bystander expenses|1,70,000/-|4,57,500/-| |5|Extra nourishment|1,00,000/-|1,00,000/-| |6|Medical expenses|3,22,275/-|3,22,275/-| |7|Pain and sufferings|1,00,000/-|1,00,000/-| |8|Loss of amenities|1,00,000/-|1,00,000/-| |9|Loss<br>of<br>marriage<br>prospects|1,00,000/-|1,00,000/-| |10|Loss due to disability<br>with future prospects|9,72,000/-|27,21,600| |11|Future treatment|75,000/-`|75,000/-| |||20,09,230|40,94,330| **MACA.No.2405 OF 2015(A)** 18 In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.20,85,100/- with interest at the rate of 7.5% per annum on the enhanced compensation from the date of petition till the date of realisation, after excluding the period of 688 days i.e., the period of delay in filing the appeal as ordered by this Court in C.M.Appl.No.2736 of 2015 dated 13.08.2015, and proportionate costs. The 3[rd] respondent shall deposit deposit the enhanced compensation before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment after deducting the liability if any, of the appellants towards court fee . The appellants would be at liberty to move the Tribunal for withdrawal of the enhanced compensation with interest and costs in accordance with law. **Sd/- C.S.DIAS,JUDGE** dlK 12.04.2021