Remadevi and others v. United India Insurance Company Ltd. and others (MACA Nos. 880/2017 & 998/2019)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` FRIDAY, THE 10[TH] DAY OF DECEMBER 2021 / 19TH AGRAHAYANA, 1943 ``` ``` MACA NO. 880 OF 2017 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 912/2015 OF MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL PALA`** ## **`APPELLANTS/PETITIONERS:`** ``` 1REMADEVI D/O.SIVASANKARAN NAIR, KAVANAPPALLIL HOUSE,PRAYAR BHAGOM, KIDANGOOR VILLAGE & POST, KOTTAYAM, ``` ``` APPELLANT NO.1 IS IN A VEGETATIVE CONDITION AND ALSO IN A COMA STAGE, HENCE REPRESENTED BY HER FATHER SIVASANKARAN NAIR K.N.,S/O.NARAYANAN NAIR, KAVANAPPALLIL HOUSE,PRAYAR BHAGOM, KIDANGOOR VILLAGE & POST KOTTAYAM. ``` - **`2 GOURI CHANDRASEKHAR (MINOR)`** - **`3 GOUTHAM KRISHNA C. (MINOR)`** ``` MINORS REPRESENTED BY GUARDIAN & NEXT FRIEND, SHAILAJA K.S., ``` ``` D/O.SIVASANKARAN NAIR, KAVANAPPALLIL HOUSE, PRAYAR BHAGOM, KIDANGOOR VILLAGE & POST, KOTTAYAM. ``` ``` BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1PETER A.J S/O.JOHN, ARIKKUPURATHU HOUSE, KADANGALLOOR KARA & VILLAGE, KANIYAMKUNNU BHAGAM, UC COLLEGE POST, NORTH PARAVOOR, ERNAKULAM TALUK. ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 2 ``` - **`2 UNITED INDIA INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, GEETHA TRADE CENTRE, MC ROAD,NAGAMPADAM, KOTTAYAM.`** - **`3 P.J.JOHN`** ``` S/O.JOSEPH, ONATTU HOUSE, KANIYAMKUNNU BHAGAM, KADANGALLOOR KARA & VILLAGE, UC COLLEGE POST, NORTH PARAVOOR TALUK, ERNAKULAM. ``` ``` R2 BY ADV. ARUN RAJ S ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2021, ALONG WITH MACA.998/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` FRIDAY, THE 10[TH] DAY OF DECEMBER 2021 / 19TH AGRAHAYANA, 1943 MACA NO. 998 OF 2019 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 912/2015 OF MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL PALA ``` ``` APPELLANT/2ND RESPONDENT: ``` ``` M/S.UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, GEETHA TRADE CENTRE, MC ROAD, NAGAMBADAM, KOTTAYAM-686001. ``` ``` BY ADV S.ARUN RAJ ``` ## **`RESPONDENTS/PETITIONER 1 TO 3 & RESPONDENTS 1 AND 3:`** - **`1 REMADEVI`** ``` D/O.SIVASANKARAN NAIR, KAVANAPPALLIL(H), PRAYAR BHAGOM, KIDANAGOOR.P.O, KIDANGOOR VILLAE, KOTTAYAM-683 572 ``` ``` REPRESENTED BY HER FATHER SIVASANKARAN NAIR.K.N, S/O.NARAYANA NAIR, AGED 72 YEARS, RESIDING AT KAVANAPPALLIL(H), PRAYAR BHAGOM, KIDANGOOR.P.O, KIDANGOOR VILLAGE, KOTTAYAM-683572. ``` ``` 2GOURI CHANDRASEKHAR, AGED 14 YEARS (MINOR) REPRESENTED BY NEXT FRIEND AND GUARDIAN SHAILAJA.K.S, D/O.SIVASANKARAN NAIR, KAVANAPPALLIL(H), KIDANGOOR.P.O-683572. ``` ``` 3GOUTHAM KRISHNA C. AGED 9 YEARS (MINOR), REPRESENTED BY NEXT FRIEND AND GUARDIAN SHAILAJA.K.S, D/O.SIVASANKARAN NAIR, ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 4 ``` ## **`KAVANAPPALLIL(H), KIDANGOOR.P.O-683572.`** - **`4 PETER.AJ.`** ``` S/O.JOHN, ARIKUPURATHU HOUSE, KADANGAALLOOR KARA, KANIYAMKUNNU BHAGAM, UC COLLGE P.O., KADANGALLOOR VILLAGE, NORTH PARAVOOR, ERNAKULAM TALUK-683102. ``` - **`5 P.J.JOHN,`** ``` S/O.JOSEPH, ONATTU HOUSE, KANIYAMKUNNU BHAGAM, KADANGALOOR KARA, KADANGALOOR VILLAGE, UC COLLEGE.P.O, NORTH PARAVOOR TALUK, ERNAKULAM-683102. ``` ## **`R1-R3 BY ADV. SRI. MATHEW JOHN`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2021, ALONG WITH MACA.880/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 5 ``` ## **`JUDGMENT`** ``` A forty one year old house wife sustained very serious injuries in a motor vehicle accident happened on 11/11/2013 resulting in complete paralysis of the body. ``` ``` 2. The contention is that the Tribunal is not justified in entering into a finding of sole negligence against the offending vehicle, though it is a case of collision between two vehicles. The victim/first petitioner was riding her scooter through Ettumanoor-Vaikom road and stopped her vehicle on the eastern side of the road at Indikuzhy. The car driven by the 3[rd] respondent in the O.P. hit against her scooter. Ext.A6 final report also stands against the 3[rd] respondent and one eye witness, PW2 was also examined and deposed in tune with the final report submitted and the Tribunal by relying on ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 6 ``` ## **`New India Assurance Co. Ltd. v. Pazhaniammal`** ``` (2011 (3) KLT 648) found that the accident was happened due to the sole negligence on the part of 3[rd] respondent. It is true that the AMVI report, Ext.A5 shows damage to the car on the right side and damage to the scooter on its front side. This would also support the sole negligence on the part of the driver of the offending vehicle, the 3[rd] respondent. The accident spot was also located 9 metres towards east from the western tarred end and the road is having only 8 metres width as per the scene mahazar. It shows that the accident took place on the extreme eastern side of the road i.e. after the eastern road margin. It would show the extent of negligence and rashness on the part of third respondent. As such, there is no reason for interfering with the finding of the Tribunal regarding the sole negligence on the part of the 3[rd] respondent. ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 7 ``` `3. The injuries sustained are as follows:` - `“ 1. Traumatic Brain injury.` `2. SAH with Intra Ventricular Haemorrhage.` `3. Diffuse Cerebral Edema with Diffuse Axonal injury` `4. Open compound comminuted fracture of both bones of right leg.` `5. Contusion on the left side of chest with fracture to rib` `6. Lacerated wound over right leg above ankle region 15 x 10 cm. with exposed bone fracture and tendon cut and distal vascularity loss.` `7. Multiple injuries on head and left big toe.` `8. Cervical straightening with Minimal Disc Bulge from C3-4 to C5-6 levels indenting the thecal sac.` `9. Patchy linear hyper intensity in the cord at C3-4 level.` `10 Hydrocephalus. 11 Sequelae of traumatic brain injury.”` ``` 4. The medical evidence shows that she is completely bedridden, totally paralysed and is in coma stage. She cannot take any food orally and food materials are being supplied through a tube attached to her belly. There is not even a ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 8 ``` ``` remote chance of any recovery. The Medical Board assessed her disability at 100%. She is under the care and custody of her father aged 70 years, who has filed this appeal as her next friend. Subsequently, the minor children aged 10 years and 5 years were impleaded as additional petitioners 2 and 3. ``` ``` 5. What is revealed through medical evidence and the evidence tendered through PWs 1 to 5 and Exts.A1 to A32, Exts.B1 to B4 reveal the sad plight of a young house wife, who met with a motor vehicle accident and became a vegetable in all respects lying at the mercy of others even to take food, that too, not through the mouth, but through a tube attached to the belly and lying fully paralysed and living at the mercy of her father, who is aged 70 years and one of her sisters, who dedicates her considerable time to look after her sister. She is having two minor children, a girl aged 10 years and a boy aged 5 ``` ``` MACA Nos.880/2017& 998/2019 ``` **==> picture [8 x 9] intentionally omitted <==** ``` years. ``` ``` 6. Admittedly, she was a housewife. According to her, she was also running a diary farm and was earning an amount of Rs.15,000/- per month, for which Exts.A14 and A15 documents were produced and marked through the Secretary, Koodalloor East Milk Society. But on extraneous ground, the same was rejected by the Tribunal by assessing her monthly income at Rs.9,000/- per month. Even in the case of a housewife having no other avocation, she is entitled to much more amount while considering the quantum of service rendered to the family, especially when she is having her age old father and two minor children wholly depending on her for their livelihood and daily affairs. It is worthful to extract paragraphs 24 and 32 of the judgment rendered by the Apex Court inArun Kumar Agrawal v. National Insurance Company Ltd. (2010 (4) KLT 230(SC) thus: ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 10 ``` ``` “24. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term `services' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier.” ``` ``` “32. In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have regular income, by comparing ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 11 ``` ``` her services with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the housewife. In its wisdom, the legislature had, as early as in 1994, fixed the notional income of a non-earning person at Rs.15,000/- per annum and in case of a spouse,1/3rdincomeofthe earning/surviving spouse for the purpose of computing the compensation. Though, Section 163A does not, in terms apply to the cases in which claim for compensation is filed under Section 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependents of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier keeping in ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 12 ``` ``` view the judgments of this Court in General Manager Kerala State Road Transport Corporation v. Susamma Thomas (Mrs.) and others (supra), U.P. S.R.T.C. v. Trilok Chandra (supra),Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another(supra) and also take guidance from the judgment in Lata Wadhwa's case. The approach adopted by different Benches of Delhi High Court to compute the compensation by relying upon the minimum wages payable to a skilled worker does not commend our approval because it is most unrealistic to compare thegratuitousservicesofthe housewife/mother with work of a skilled worker.” ``` ``` 7. As such, it is fit and proper to fix the monthly income atleast @ Rs.12,000/- per month. The Tribunal has applied 30% of enhancement instead of 25% which was taken as a ground of attack by the Insurance Company in their appeal. Hence, the enhancement which can be allowed is not 30%, but only 25%. An amount of ``` ``` MACA Nos.880/2017& 998/2019 ``` **==> picture [15 x 9] intentionally omitted <==** ``` Rs.25,20,000/-((12000 + 3000) x 12 x 14) is awarded under the head of compensation for loss of earning power due to disability as against the amount awarded under column 13 of the tabular statement incorporated in the impugned award. ``` ``` 8. An amount of Rs.2,27,500/- was allowed on account of expenses in connection with Physiotherapy treatment for a period of five years by making an unfortunate observation to the effect that the normal expectation of life of injured would be five years. I am at a loss to understand on what basis the Tribunal made such an unwarranted and unfortunate observation by calculating the life span of the injured as 5 years for the purpose of awarding cost of physiotherapy charges. The said observation will stand deleted from the impugned award. It has come out in evidence that atleast an amount of Rs.500/- is required for attending ``` ``` MACA Nos.880/2017& 998/2019 ``` **==> picture [15 x 9] intentionally omitted <==** ``` physiotherapy on daily basis, but only an amount of Rs.250/- was taken by the Tribunal without showing any reason for reducing the same. What is claimed comes to Rs.18,00,000/-. PW3 while in the box had admitted that she requires physiotherapy on every day. Certificates have already been produced showing the physiotherapy charges for a period of six months commencing from 1/12/2015 to 1/6/2016. Even by applying the five year period, the amount would come to Rs.9,12,500/-, but there may be some breakage in the physiotherapy treatment and by taking into consideration, an amount of Rs.7,50,000/- is awarded for meeting the physiotherapy treatment expenditure as against the amount of Rs.2,27,500/- awarded by the Tribunal. ``` ``` 9. Only an amount of Rs.2,00,000/- was awarded by the Tribunal for pain and suffering. The first petitioner/injured is fully bedridden and paralysed. She cannot even take her food ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 15 ``` ``` through mouth and the feeding is being done through a pipe attached to her belly. She is lying in a vegetative state since the accident. Now more or less 8 years have elapsed. There is not even a remote chance of recovery. The amount that can be awarded under the head pain and suffering should reflect the actual suffering, its extent and duration. While takingintoconsiderationthespecial circumstance involved atleast an amount of Rs.5,00,000/- has to be awarded, though the claim is limited to Rs.3,00,000/- under the head. Hence an amount of Rs.5,00,000/- is awarded for pain and suffering. Further, the amount of Rs.10,00,000/- was allowed by the Tribunal on account of future expenses for home nurse. Hence, the same deserves no ``` ``` interference. ``` ``` 10. An amount of Rs.3,00,000/- alone was granted for future treatment overlooking the ``` ``` MACA Nos.880/2017& 998/2019 ``` **==> picture [15 x 9] intentionally omitted <==** ``` medical evidence tendered. A pragmatic approach has to be adopted while assessing future medical expenses when the victim is lying in a coma stage for the last eight years and there is not even a remote chance of recovery. As such, a rational assessment is made taking into account the pathetic stage of the victim and an amount of Rs.6,00,000/- is awarded for future treatment. ``` ``` 11. She is having two minor children, a boy aged 5 years and a girl aged 10 years. They will have to face the current realities at their younger age and they will not get the love and affection or the care from their mother. On the other hand, they will have to see the sad plight of their mother and to face all other difficultiesattheiryoungerstage. Necessarily, they should be compensated by ordering a lumpsum amount of Rs.5,00,000/- each on that count. Hence, ordered accordingly. ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 17 ``` ``` 12. The amount of Rs.1,00,000/- granted on account of loss of amenities and conveniences seems to be so meagre. Hence, an amount of Rs.5,00,000/- is granted under that head, besides an amount of Rs.5,00,000/- under the head of extra nourishment as against the amount of Rs.1,00,000/- granted by the Tribunal. ``` ``` 13. The amount awarded by the Tribunal under other heads deserves no interference. So, the total amount of compensation would come to Rs.90,72,487/- as follows: ``` |`Sl.`<br>`No.`|`Head of Claim`|`Amount Awarded`| |---|---|---| |`1`|`Medical and miscellaneous`<br>`expenses`|`Rs.15,68,487/-`| |`2`|`Bystander expenses`|`Rs.43,500/-`| |`3`|`Transportation expenses`|`Rs.90,000/-`| |`4`|`Damage to clothing`|`Rs.500/-`| |`5`|`Future expenses for home`<br>`nurse.`|`Rs.10,00,000/-`| |`6`|`Extra nourishment`|`Rs.5,00,000/-`| |`7`|`Future fee for`|`Rs.7,50,000/-`| ``` MACA Nos.880/2017& 998/2019 ``` ``` 18 ``` ||`physiotherapist`|| |---|---|---| |`8`|`Future treatment expenses`|`Rs.6,00,000/-`| |`9`|`Pain and suffering`|`Rs.5,00,000/-`| |`10`|`Loss of amenities and`<br>`conveniences`|`Rs.5,00,000/-`| |`11`|`Loss of love and affection`<br>`to minor children`|`Rs.10,00,000/-`| |`12`|`Loss of earning`|`Rs.25,20,000/-`| ||`TOTAL`|`Rs.90,72,487/-`<br>`(Rupees Ninety`<br>`Lakhs Seventy`<br>`Two Thousand`<br>`Four Hundred`<br>`Eighty Seven`<br>`Only)`| ``` 14. In view of the legal position settled by the Apex Court in R.D.Hattangadi v. Pest Control (India) Pvt.Ltd. And Ors. [(1995) 1 SCC 551), the amount awarded under the head of future expenses for home nurse, extra nourishment, future fee for physiotherapist and future treatment expenses will not carry interest. The ``` ``` MACA Nos.880/2017& 998/2019 ``` ``` 19 ``` ``` amount awarded under the other heads which would come to Rs.62,22,487/- will carry interest @ 9% per annum from the date of petition till the date of recovery. ``` ``` Both the appeals are allowed in part accordingly. There will be a direction to the Insurance Company to deposit the entire amount within a period of three months from today after adjusting the amount, if any, already paid, failing which the entire amount will carry future interest @ 12% per annum till its recovery/realization. ``` ``` Sd/- ``` ## **`P.SOMARAJAN`** ## **`JUDGE`** ``` SPV ```