Shini @ Shini Babu v. R. Viruthan & United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944 MACA NO. 2516 OF 2010** **AGAINST THE AWARD DATED 09.09.2009 IN OPMV 592/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM** ## **APPELLANT/APPLICANT:** SHINI @ SHINI BABU AGED 30, T.C.11/1159(2),, VARDHA LAKSHMI VILAKOM THOPPIL VEEDU,, CHARACHIRA, NANTHANCODE, KOWDIAR,, THIRUVANANTHAPURAM. BY ADV R.T.PRADEEP ## **RESPONDENTS/RESPONDENTS:** 1 R.VIRUTHAN 2/136, CHOLAMANDAL ARTIST,, INJAMBAKKAM, CHENNAI 600041. 2 UNITED INDIA INSURANCE COMPANY LTD. REPRESENTED BY ITS MANAGER,, S.N.S.COMPLEX, S.B.ROAD,, ADAYAR, CHENNAI-20. BY ADV SMT.DEEPA GEORGE for R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2022, THE COURT ON 14.06.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.2516/2010 2 **M.R.ANITHA, J** ****************** M.A.C.A.No.2516 of 2010 -----------------------------------------Dated this the 14[th] day of June, 2022 ## **JUDGMENT** The appeal has been filed against the award passed in O.P.M.V No.592/2004 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (in short 'the Act') for the injury sustained by the appellant/claimant in a motor accident occurred on 18.02.2004 at about 12.20 p.m near Kowdiar due to hit by motorcycle bearing Reg.No.TMD-4296. It is alleged that the accident happened due to the rash and negligent riding of the motorcycle by the 1[st] respondent who is the registered owner of the vehicle. 2[nd] respondent is the insurer. The appellant claimed a total compensation of Rs.2,50,000/-. M.A.C.A.No.2516/2010 3 2. Before the Tribunal 1[st] respondent remained ex parte. 2[nd] respondent filed written statement admitting policy coverage with respect to the offending vehicle. But the compensation claimed is contended to be excessive and exorbitant. 3. This claim petition was tried along with O.P (M.V) No.589/2004 and a common award was passed. Exts.A1 to A11 were marked from the side of the claimants in both cases. There was no oral evidence from either side. 4. The Tribunal, on evaluating the pleadings as well as documents found that the 1[st] respondent/rider of the motorcycle is responsible for the accident. 2[nd] respondent is directed to indemnify the insured/the first respondent. A total compensation of Rs.1,07,420/- was awarded. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant approached this Court in appeal on various grounds stated in the memorandum of appeal. 6. Adv.Deepa George appears for the second respondent. Notice as against the first respondent is dispensed with. Lower M.A.C.A.No.2516/2010 4 court records were called for and both sides were heard. 7. According to the learned counsel for the appellant, the appellant was an Engineering student pursuing her 4[th] semester at the time of accident. Notional income taken by the Tribunal at Rs.2,000/- per month for computing the disability, is very low. It is also contended that the amount awarded towards bystander expenses as well as extra nourishment are low and hence he seeks for enhancement of compensation on the above heads. 8. Learned counsel placed reliance on the decisions in **Arvind Kumar Mishra v. New India Assurance Co. Ltd. [(2010) 10 SCC 254]** , **Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma : (2015) 2 SCC 180** , **Basanti Devi and Ors. V. Divisional Manager, The New India Assurance Company Ltd. And Ors : 2022 ACJ 823 : MANU/SC/1333/2021** to support his contentions. 9. Learned counsel for the respondent contended that appellant claimed Rs.3,000/- as the monthly income. Hence there is no requirement to enhance the income. She would also M.A.C.A.No.2516/2010 5 contend that a just and reasonable compensation has already been awarded by the Tribunal and hence no interference is called for at the instance of this court. 10. The main issue is with regard to the assessment of the income of the appellant who was a student doing 4[th] semester B.Tech Computer Science and Engineering course at the time of accident. Ext.A9 is the certificate issued by the Principal, Muslim Association College of Engineering, Venjaramoodu, Thiruvananthapuram. The Tribunal taken the income notionally as Rs.2,000/- per month for computing the disability. According to the learned counsel for the appellant, the monthly income taken by the Tribunal is far below the actual income to be taken as far as an engineering student is concerned. Learned counsel in this context relies on **Arvind Kumar Mishra** referred above. That was a case of sustaining permanent disablement of 70% out of a motor accident to the claimant therein who was a final year mechanical engineering student in Birla Institute of Technology, Mesra (B.I.T.) at the time of accident occurred on 23.06.1993. M.A.C.A.No.2516/2010 6 He was examined himself and tendered some of the doctors who treated him in evidence. The Tribunal awarded a lump sum compensation of Rs.1,00,000/- to the claimant towards inconvenience, hardship, discomfort disappointment and mental stress throughout the life. A total compensation of Rs.2,50,000/was awarded by the Tribunal against which the claimant approached the High Court of Jharkhand, Ranchi and High Court increased the amount of compensation from Rs.2,50,000/- to Rs.3,50,000/-. Dissatisfied with the quantum of compensation the claimant approached the Apex Court. Paragraph 10 of the said judgment is relevant in this context to be extracted which reads thus: _“In some cases for personal injury, the claim could be in respect of lifetime's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The_ M.A.C.A.No.2516/2010 7 _conventional basis of assessing compensation in personal injury cases – and that is now recognised mode as to the proper measure of compensation – is taking an appropriate multiplier of an appropriate multiplicand.”_ 11. The claimant in that case was a final year Engineering (Mechanical) student in a reputed college and he was a remarkably brilliant student having passed all his semester examinations in distinction. Due to the injuries out of the accident, he remained in coma for about two months and his studies got interrupted as he was moved to different hospitals for surgeries and other treatments. For many months his condition remained serious and his right hand was amputated and vision seriously affected. The multiple injuries ultimately led to 70% permanent disablement and he has rendered incapacitated and a career ahead of him in his chosen line of Mechanical Engineering got dashed for ever and he requires a domestic help throughout his life. He has been deprived of pecuniary benefits which he could have reasonably acquired had he not suffered permanent disablement to the extent of 70% in the accident. So, presuming M.A.C.A.No.2516/2010 8 that after completing the Bachelor of Engineering (Mechanical) from a prestigious institute like BIT, it can be assumed that he would have got a good job and during his evidence he deposed that he was selected in campus interview by Tata as well as Reliance Industries and offered pay package of Rs.3,50,000/- per annum. For want of evidence that was not accepted and it was found that even otherwise, it would have been difficult for him to get some decent job in private sector and had he decided to join Government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs.60,000/- per annum. Wherever he joined he would have a fair chance of promotion and remote chance of some high position. Taking all those factors into account, Apex Court found it fair and reasonable to assess his future earnings at Rs.60,000/per annum. Taking the salary and allowances payable to an Assistant Engineer in public employment as the basis and out of his future earnings 30% was discounted and estimated the multiplicand as Rs.42,000/- per annum and a multiplier of 18 was M.A.C.A.No.2516/2010 9 applied and the amount was fixed at Rs.7,56,000/- towards disability. 12. Learned counsel would contend that the appellant in this case was also a 4[th] semester B.Tech student in an Engineering College and applying that principles in an accident occurred on 23.06.1993, according to him, by giving 500 enhancement per year to the said amount, the monthly income of the appellant ought to have been taken as Rs.10,500/- per month. 13. Learned counsel also brought to my attention **Ashvinbhai Jayantilal Modi** referred above wherein in an accident occurred on 12.07.2002 with respect to a medical student, the monthly income has been taken as Rs.25,000/- per month, I.e Rs.3,00,000/- per annum. It was taken into account that the deceased was an intelligent and outstanding student of medicine who could have pursued his MD after his graduation and reached greater heights. Medical practice is one of the most sought after and rewarding profession and tremendous increase M.A.C.A.No.2516/2010 10 in demand for medical professionals, their salaries are also on the rise and accordingly, Rs.25,000/- have been taken into account. 14. **Basanti Devi** is a case in which the deceased aged 25 years was a Bachelor of Engineering in Computer Technology .The accident was in the year 2011. Tribunal assessed the income for the purpose of awarding future loss of income at the rate of Rs.20,000/- per month and added 40% towards future prospects and thereafter deducted 50% towards his personal expenses and applying multiplier of 18, an amount of Rs.30,24,000/- was awarded towards future loss of income. In appeal by the insurance company, the High Court reduced the amount of compensation from Rs.30,24,000/- to Rs.15,82,000/-. Against which both sides approached the Apex Court and having regard to the facts and circumstances, the Apex Court was pleased to approve the monthly income of Rs.20,000/- taken by the Tribunal. 15. Learned counsel for the 2[nd] respondent, on the other hand, relied on **Meena Pawaia and Others v. Ashraf Ali and** M.A.C.A.No.2516/2010 11 **Others : 2021 (6) KHC 596)** . It was a case of accident occurred in the year 2012 and the deceased was a third year student in Civil Engineering, aged 22 years. In that case,Apex court taken the monthly income of the deceased as Rs.10000/. But 40% was added to it and Rs.14000/- per month was taken towards future economic loss and multiplier of 18 was adopted. 16. In **National Insurance Company Limited v. Fathimath Zuhara : 2016 ACJ 2742 :2016(3) KLT 459 : 2016 KHC 691** and **ILR 2016(3) Kerala 431** , Division Bench of this Court approved Rs.12,000/- as monthly income notionally taken by the Tribunal with respect to an Engineering student who lost life in an accident in 2005. 17. So, bearing in mind the above principles, the facts and circumstances of the present case has to be considered. At the time of accident, the appellant was 18 years old engineering student. The fact that she was doing 4[th] semester B.Tech Computer Science and Engineering at the time of accident is discernible from Ext.A9 and that fact is not seen disputed. M.A.C.A.No.2516/2010 12 Hence I find it just and reasonable to take the monthly income of the appellant as Rs.10,500/- per month. 18. In **Raj Kumar v. Ajay Kumar and Another : 2011(1) SCC 343 : 2010 KHC 5021 : 2011(1) KLT 620** general principles relating to compensation in injury cases has been dealt with in detail and it has been held therein that the provision of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. 19. The claimant in this case sustained fracture of both bones right leg and she was treated conservatively. She had undergone inpatient treatment for 26 days.Ext.A8 disability certificate and percentage of disability assessed at 13%by the Doctor has been accepted by the Tribunal considering the nature of injuries sustained by her. That is not further challenged by the respondent. Hence 13% permanent disability taken by the Tribunal is only to be approved. M.A.C.A.No.2516/2010 13 20. The suitable multiplier as per **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802)** approved by **National Insurance Company Limited v. Pranay Sethi and Ors (2017(4) KLT 66)** would be 18. Compensation towards permanent disability would be Rs.10,500 x 12 x 13 x 18/100 = Rs.2,94,840/-. Deducting Rs.49,920/-, the amount already awarded by the Tribunal under that head, balance amount would be Rs.2,44,920/- [Rs.2,94,840 – Rs.49,920]. Towards extra nourishment, an amount of Rs.1,500/- has been awarded by the Tribunal. Being a student and taking into account the fact that she had undergone 26 days in-patient treatment, an amount of Rs.2,600/- is awarded towards extra nourishment. Deducting the amount already awarded, balance amount would be Rs.1,100/-. Tribunal awarded Rs.2,500/- towards bystander expenses. Since the accident was in the year 2004, Rs.150/- per day can be awarded under that head. Hence towards bystander expenses, the claimant is entitled to get Rs.3,900/-. Deducting the amount already awarded by the Tribunal, the balance amount would be M.A.C.A.No.2516/2010 14 Rs.1,400/-. 21. The learned counsel further seeks for compensation towards loss of marriage prospects. He would rely on **Dineshkumar.J @ Dinesh J. v. National Insurance Co.Ltd and Others : 2017 KHC 6871 : 2018(1) SCC 750 : 2018 ACJ 535** . But in that case left leg of the claimant was amputated and 60% whole body disability was proved by examining the Doctor. Tribunal awarded Rs.50000/ towards permanent disability. But in this case neither the claimant nor the doctor was examined to prove disfiguration. There is no claim and no amount was awarded under that head. Records also would reveal that fracture was treated conservatively. So I don’t find any reason to award any compensation under the head of loss of marriage prospects. 22. Compensation awarded by the Tribunal under other heads also seem to be just and reasonable and no interference is called for. So, enhanced compensation would be Rs.2,44,920 + Rs.1,100 + Rs.1,400= Rs.2,47,420/- rounded off to M.A.C.A.No.2516/2010 15 Rs.2,47,450/-. Though the compensation awarded would be in excess of the claim, it is permissible since it is the duty of the Tribunal and courts to award just equitable, fair and reasonable compensation with reference to settled principles (see **Oriental Insurance Co. Ltd. v. Mohammed Nazir and Another** : **AIR 2009 S.C (Supp) 1619; Rajesh and others v. Rajbir Singh and Others : (2013) 3 SCC Cri. 817 : (2013) 9 SCC 54 : 2013 (3) KHC 212** ) 23. In the result appeal allowed. The claimant is allowed to realise enhanced compensation of **Rs.2,47,450/-** (Rupees two lakhs forty seven thousand four hundred and fifty only) with interest at 6% from the date of petition till realisation excluding 262 days, the delay caused in filing this appeal. The 2nd respondent, Insurance Company, shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment deducting the liability of the claimant towards balance court fee. M.A.C.A.No.2516/2010 16 24. The disbursement of additional compensation to the appellants/claimants shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 6.9.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 7.11.2019. The appellant/claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. ## (sd/-) **M.R.ANITHA, JUDGE** jar True Copy P.S. To Judge