Royal Sundaram Alliance Insurance Company Limited v Benny Francis

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** ## **MACA.No.1787 OF 2015(E)** **AGAINST THE AWARD IN OP(MV)No.572/2010 DATED 06-03-2015 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT/3rd RESPONDENT:** **ROYAL SUNDEARM ALLIANCE INSURANCE COMPANY LIMITED, CHENNAI, NOW REPRESENTED BY THEIR ZONAL HEAD, SUBRAMANIANM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600002** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER:** **BENNY FRANCIS, S/O.FRANCIS, KOYYELIPPRAMBU HOUSE, KOTTUVALLY KARA, KAITHARAM P.O., PIN 683320** **BY ADV. SRI.A.N.SANTHOSH SRI REGI GEORGE, SMT. ANUPAMA JOHNY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2020, ALONG WITH CO.167/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1787/2015(E) & CO.No.167/2015** **:2:** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** **CO.No.167 OF 2015 IN MACA. 1787/2015** **CROSS-OBJECTION IN MACA No.1787/2015 FROM THE AWARD DATED 06.03.2015 PASSED IN OP(MV)No.572/2010 ON THE FILE OF TE MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR** ## **CROSS OBJECTOR/RESPONDENT IN MACA:1787/2015:** **BENNY FRANCIS, S/O. FRANCIS, AGED 30 YEARS, KOYYELIPPARAMBU HOUSE, KOTTUVALLY KARA, KAITHARAM P.O., KOTTUVALLY VILLAGE.** **BY ADVS. SRI.REJI GEORGE SMT.ANUPAMA JOHNY** ## **RESPONDENT/APPELLANT IN MACA: 1787/2015** **ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, CHENNAI, NOW REPRESENTED BY THEIR ZONAL HEAD, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI - 600 002.** ## **BY ADV. SRI.P.JACOB MATHEW** **THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 22-06-2020, ALONG WITH MACA.1787/2015(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1787/2015(E) & CO.No.167/2015** **:3:** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 22[nd] day of June, 2020**_ [M.A.C.A. No.1787 of 2015 & C.O. No.167 of 2015] The appellant is the 3[rd] respondent-insurer in OP(MV) No.572/2010 of the Motor Accidents Claims Tribunal, North Paravur. The appellant is aggrieved by Award dated 06.03.2015 of the Tribunal. Dissatisfied by the quantum of compensation awarded, the petitioner in OP(MV) has filed Cross Objection No.167/2015. 2. The respondent in MACA No.1787/2015 (hereinafter referrred to as the 'petitioner', for clarity) filed the OP(MV) stating that on 21.03.2010 at about 9 p.m. while the petitioner was travelling on a motorcycle, a car driven by the 1[st] respondent in the OP(MV) in a rash and negligent manner and with high speed, hit the motorcycle of the petitioner. The **MACA.No.1787/2015(E) & CO.No.167/2015** **:4:** ## petitioner sustained the following injuries:- 1. Quadriplegia. 2. Cervical cord injury at C7 level (SC IW ORA). 3. Fracture distal 3[rd] radius left. 4. Fracture Ulnar styloid. 5. Degenerative changes a cervical spine with Disc Desication with Diffuse bulge of C4-C5 and C5-C6 Disc sentending Thecal sac and cord. 6. Lacerated wound on the scalp. 7. Abrasion on the clavicle. 8. Abrasion on the fore arm. 9. Abrasion on the fore head. 10. Swelling left fore arm. 11. ORIF done. 12. Totally bed ridden. 13. Malunion. 14. Permanent disability The petitioner claimed that he was 25 years of age and was working as a Welder in a Workshop. The monthly income of the petitioner was ₹10,000/-. The petitioner therefore claimed a total compensation of ₹10,00,000/-. Later, the petitioner amended the OP(MV) enhancing the claim of compensation to ₹40,00,000/-. 3. The Driver and Owner of the car remained _ex parte_ before the Tribunal. The appellant-insurer contested the OP(MV) filing written statement. The appellant admitted insurance coverage of the offending vehicle. However, it was contended that the accident occurred due to the negligent **MACA.No.1787/2015(E) & CO.No.167/2015** **==> picture [23 x 9] intentionally omitted <==** riding of the motorcycle by the petitioner. The petitioner did not sustain any permanent disability and the compensation claimed under various heads are unsustainable. 4. The petitioner produced Exts.A1 to A10 documents and examined PW1. The appellant did not adduce any oral or documentary evidence. 5. On appreciation of evidence, the Tribunal found that the accident occurred because of the negligent driving of the motor car. The Tribunal noted that the disability sustained by the petitioner is 75% as per Ext.A5. In the absence of any evidence on the income of the petitioner, the Tribunal fixed his notional income as ₹5,000/- per month. The Tribunal passed an Award allowing ₹14,94,000/- as compensation, under the following heads:- |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**claimed**<br>**( Rs.)**|**Amount**<br>**awarded**<br>**(Rs.)**|**Basis-Vitals detail**<br>**in nutshell**| |---|---|---|---|---| |1.|Damage to cloth|1,000|1,000|| |2.|Transportation expenses|9,000|9,000|| |3.|Medical Expenses|1,50,000|66,336|| |4.|Future Medical expenses|50,000|50,000|| |5.|Bystander expenses|24,000|16,500|₹300/day for 55| **MACA.No.1787/2015(E) & CO.No.167/2015** **:6:** |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**claimed**<br>**( Rs.)**|**Amount**<br>**awarded**<br>**(Rs.)**|**Basis-Vitals detail**<br>**in nutshell**| |---|---|---|---|---| |||||days| |6.|Extra Nourishment|6,000|6,000|| |7.|Loss of income for 6<br>months|60,000|Nil|| |8.|Compensation for pain<br>and suffering|3,00,000|1,00,000|| |9.|Compensation for loss of<br>amenities and enjoyment<br>in life|3,00,000|2,00,000|| |10.|Compensation for dis-<br>figuration|50,000|50,000|| |11.|Future bystander<br>expenses|3,00,000|Nil|| |12.|Compensation for<br>permanent disability|5,00,000|9,94,500|| ||**Total**|₹14,50,000/-<br>limited to<br>₹10,00,000/-|₹14,93,336/-|| ||||rounded to<br>**₹14,94,000/-**|| Interest at the rate of 8% per annum was also awarded from the date of the OP(MV). The 3[rd] respondent was directed to satisfy the compensation awarded. 6. Learned counsel for the appellant-insurer argued that the amount of compensation awarded under various heads are excessive and disproportionate to the injuries. While fixing the notional monthly income, the Tribunal added 30% towards future prospects, which is unwarranted. **MACA.No.1787/2015(E) & CO.No.167/2015** **:7:** Similarly, apart from granting compensation towards permanent disability to the tune of ₹9,94,500/-, the Tribunal also awarded ₹2,00,000/- towards loss of amenities and ₹50,000/- towards dis-figuration. When such huge amount was awarded towards compensation for disability, the Tribunal ought not have awarded compensation separately for loss of amenities and dis-figuration. The amount of ₹50,000/- awarded for future treatment is also excessive in the absence of any evidence. The compensation amount awarded by the Tribunal is therefore liable to be reduced. 7. The learned counsel for the petitioner in oppugnation, contended that the petitioner is in a pathetic condition due to the accident. Injuries were severe. The petitioner is in a state of quadriplegia. The petitioner cannot move and is totally immobile. In fact, the Tribunal ought to have granted future attendant charges to the appellant. Similarly, future prospects should have been allowed at the rate of 40%, as against the 30% given by the Tribunal. The **MACA.No.1787/2015(E) & CO.No.167/2015** **==> picture [23 x 9] intentionally omitted <==** petitioner who got paralysed at the age of 25 was not given any amount towards marriage prospects. The Tribunal thus made the compensation a pittance. The appellant is eligible for just and fair compensation. The counsel for the petitioner relied on the following judgments in support of his arguments:- 1. _**R.D.Hattangadi v. Pest Control (India) Pvt. Ltd. and others** [(1995) 1 SCC 551]._ _2._ **Govind Yadav v. New India Insurance Company Ltd.** [(2011) 1 SCC 683] 3. _**G.Ravindranath v. E.Srinivas and another** [2013 ACJ 2131]_ 4. _**Rekha Jain v. National Insurance Co. Ltd.** [2013 ACJ 2161]_ 5. _**N.Manjegowda v. Manager Untied India Insurance Co. Ltd.** [2014 ACJ 617]_ 6. _**V.Mekala v. M. Malathi and another** [2014 ACJ 1441]_ 7. _**Minor Basid v. Sanu** [2018 (2) KLT 453]_ 8. _**Parminder sing v. New India Assurance Co. Ltd.** [2019 ACJ 2401]_ 9. _**Kajal v. Jagdish Chand** [2020 (1) KLT 743(SC)]_ **MACA.No.1787/2015(E) & CO.No.167/2015** **==> picture [23 x 9] intentionally omitted <==** 10. _**Ulahannan v. Rajesh and others** [ILR 2020 (2) Kerala 295]_ . 8. I have heard the learned Standing Counsel for the appellant-insurer and the learned counsel appearing for the petitioner-claimant. 9. The Apex Court, while explaining the concept of just compensation, held in _**Kajal v. Jagdish Chand** [2020 (1) KLT 743 (SC)]_ that the Court has to make a judicial attempt to award damages, so as to compensate the claimant for the loss suffered. On the one hand, compensation should not be assessed very conservatively, but on the other hand, compensation should also not be assessed in so liberal a fashion so as to make a bounty to the claimant. The court while assessing the compensation, should have regard to the degree of deprivation and the loss caused by such deprivation. Such compensation is what is termed as just compensation. The compensation or damages assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by the injured throughout **MACA.No.1787/2015(E) & CO.No.167/2015** **==> picture [30 x 9] intentionally omitted <==** his/her life. They should not be just token damages. 10. The petitioner suffered very serious injuries consequent to the accident. Suffice it to say, the petitioner is in a state of quadriplegia. PW1, who is the wife of the brother of the petitioner, in her deposition as PW1, has stated that the petitioner is totally paralysed. The petitioner requires the assistance of someone even to discharge his daily routines. A nursing help/bystander has been engaged by the family paying an amount of ₹3,000/- per month. Such bystander will be available only during day time. During night time, one of the family members has to be of help to the petitioner. PW1 stated that such assistance would be required by the petitioner till his end. 11. PW1 further pointed out that the petitioner is lying on waterbed and faces the threat of bedsore. Huge amounts have been spent for petitioner's physiotherapy and to buy and maintain waterbed. Perusing the medical records produced as Exts.A4 to A10, it is evident that the statements **MACA.No.1787/2015(E) & CO.No.167/2015** **==> picture [30 x 9] intentionally omitted <==** made by PW1 before the Tribunal are true and correct. Therefore, this Court has to consider the adequacy or otherwise of the compensation amount granted by the Tribunal, in the above context. 12. The Tribunal has awarded an amount of ₹9,94,500/- towards compensation for disability. The petitioner was 25 years old at the time of accident and was working as a Welder. It has come out in evidence that the petitioner is totally paralysed and is in a state of quadriplegia. Therefore, his permanent disability should indeed be taken as 100%. Against the claim of a monthly salary of ₹10,000/-, the Tribunal fixed the notional monthly income of the petitioner as ₹5,000/- only, in the absence of any proof regarding the income. The Hon'ble Apex Court in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735]_ , had considered the principles relating to fixing of notional income in respect of self-employed persons. Going by the guidelines given by the **MACA.No.1787/2015(E) & CO.No.167/2015** **==> picture [30 x 9] intentionally omitted <==** Apex Court, the income of a self-employed person, in the absence of any evidence of income, should be at least ₹7,500/- in the year 2010. The petitioner was a skilled worker, rendering service as a Welder. This has come out in evidence of PW1. Therefore, it would only be just and reasonable to fix the notional monthly income of the petitioner as ₹9,000/-. 13. For calculating compensation for permanent disability, an addition has to be made towards future prospects. As the petitioner was of the age 25 at the time of accident, 40% enhancement can be granted towards future prospects. Accordingly, the notional monthly income of the petitioner inclusive of future prospects, for the purpose of calculation of compensation for disability, should be taken as ₹12,600/-. The appellant would be therefore entitled to a compensation for disability, of ₹27,21,600/- (₹12,600 x 12 x 18). The Tribunal has already granted ₹9,94,500/- towards disability. The petitioner therefore will be entitled to additional **MACA.No.1787/2015(E) & CO.No.167/2015** **==> picture [30 x 9] intentionally omitted <==** compensation of **₹17,27,100/-** (₹27,21,600 minus ₹9,94,500 already awarded by the Tribunal). 14. The Tribunal has granted appropriate compensation under the heads damage to clothe, transportation expenses, medical expenses and future medical expenses, bystander expenses, extra nourishment, pain and suffering, loss of amenities and enjoyment in life and dis-figuration. However, in spite of the evidence given by PW1 explaining the need of a permanent attendant, the Tribunal has not considered that aspect. PW1 has deposed that the family has already engaged a person paying ₹3,000/per month for day time duty alone. In the circumstances, this Court finds that the claim made by the petitioner of ₹3,00,000/- towards bystander/attendant expenses is liable to be allowed as such. Accordingly, it is declared that the petitioner will be entitled to **₹3,00,000/-** towards compensation for future attendant charges. 15. The learned counsel for the appellant-insurer **MACA.No.1787/2015(E) & CO.No.167/2015** **==> picture [30 x 9] intentionally omitted <==** contended that when amount is granted towards disability, no separate amount should be granted for loss of amenities and dis-figuration. The Hon'ble Apex Court has consistently held that the Courts or Tribunals assessing the compensation in a case of 100% disability, should take a liberal view of the matter when awarding compensation. The award of compensation under non-pecuniary heads should not be a token gesture. In view of the above, this Court is of the opinion that the compensation awarded by the Tribunal towards loss of amenities and dis-figuration has to be sustained. 16. The petitioner met with the unfortunate accident at the age of 24. The petitioner is totally paralysed. The bodily state of the petitioner would indeed affect his marriage prospects. Therefore, this Court is of the view that appropriate compensation has to be made available to the petitioner on that score also. Though the learned Standing Counsel for appellant stated that since compensation has **MACA.No.1787/2015(E) & CO.No.167/2015** **==> picture [30 x 9] intentionally omitted <==** been granted for loss of amenities, no separate compensation need be given towards marriage prospects, scanning the Award and compensation awarded by the Tribunal for loss of amenities and enjoyment in life, it is evident that the Tribunal has not taken into account diminution of marriage prospects of the petitioner while arriving at the amount of compensation for loss of amenities and enjoyment in life. This Court, therefore, is of the opinion that adequate compensation shall be granted to the petitioner towards diminution of marriage prospects. Accordingly, it is declared that the petitioner will be entitled to an additional compensation of **₹3,00,000/-** towards diminution of marriage prospects. 17. In view of the facts and reasons stated above, it is declared that the appellant will be entitled to additional compensation of **₹23,27,100/-** over and above the compensation awarded by the Tribunal, on the following counts:- **MACA.No.1787/2015(E) & CO.No.167/2015** **:16:** |(i)|Additional compensation towards disability|Additional compensation towards disability|₹17,27,100/-| |---|---|---|---| |(ii)|Compensation towards|future attendant|₹3,00,000/-| ||charges||| |(iii)|Compensation towards|diminution of|₹3,00,000/-| ||marriage prospects.||| ||Total||₹23,27,100/-| The 3[rd] respondent is directed to pay **₹23,27,100/-** as additional compensation to the petitioner within a period of 30 days. Amount of ₹20,27,100/- shall carry interest at the rate of 8% per annum from the date of OP(MV) and ₹3,00,000/awarded towards future attendant charges shall carry interest at the rate of 8% per annum from the date of the Award. MACA and Cross Objection are disposed of as above. Sd/- **N. NAGARESH, JUDGE** aks/18/06/2020