Sonu Sundharman v. Royal Sundaram Alliance Insurance Company Limited (MACA Nos. 197/2015 & 3465/2015)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938 MACA.No. 197 of 2015 ------------------------ AGAINST THE AWARD IN OPMV 432/2010 of ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR DATED 30.09.2014 APPELLANT/3RD RESPONDENT: --------------------------- ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED,ERNAKULAM NOW REPRESENTED BY ITS MANAGER, SUBRMANIAN BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600002 BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## RESPONDENT/PETITIONER: ------------------------- SONU SUNDHARMAN S/O.SUDHARMAN, MURUPPEL HOUSE, KAITHIRI CHAPPATH PO., ELAPPARA,IDUKKI DISTRICT,PIN-686320 R1 BY ADV. SRI.DEEPAK JOY.K. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2017 ALONG WITH M.A.C.A. NO. 3465/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K. ABDUL REHIM & SHIRCY V.,JJ.** **============================== M.A.C.A. Nos. 197 of 2015 & 3465 of 2015 ============================== Dated this the 22[nd] day of February, 2017** ## **JUDGMENT** ## **C.K. Abdul Rehim, J.** The Claimant and the 3[rd] Respondent-Insurance Company before the Motor Accidents Claims Tribunal, North Paravur in O.P.(MV) No. 432/2010, are the appellants in M.A.C.A. No. 3465/2010 and 197/2015, respectively. While the insurer is assailing the Award as excessive, the claimant is seeking enhancement of the amount of compensation awarded. Since there is no dispute in both the appeals with respect to the findings on the aspects negligence as well as liability of the insurer, the issues considered in these appeals are confined to the quantum of compensation for MACA 197 & 3465/2015 2 which the claimant is entitled. 2. The claimant sustained grievous injuries on his skull and brain. His body became totally paralysed, despite he had undergone 26 surgical operations, including craniotomy. The victim was a boy aged 19 years at the time of the accident. He remained in the hospital as inpatient 157 days. He was a 'Web Designer' by profession working in a private institution. One of the main factor upon which both the appellants are in dispute is regarding the amount awarded as compensation under the head of permanent disability. Ext.X1 is the Disability Certificate issued by the Medical Board attached to the Government Medical College Hospital, Kottayam. The extent of permanent disability suffered by the claimant was assessed at 84%. The Certificate would indicate that the victim had motor aphasia - 50%, severe hemiplegia right side-75% and emotional instability-10%. Using the appropriate formula the permanent whole body MACA 197 & 3465/2015 3 disability was assessed as 84%. On the factual aspects, the Tribunal had arrived at a conclusion that the claimant is unable to move on his own as his limbs are motionless and he could not even sit, but can only simply lay. The Tribunal observed that a very look on the claimant/petitioner itself fortifies these facts, even without looking into the medical records,and that the whole body functional disability is 100% even though medically he is suffering from 84% disability only. 3. Learned counsel for the appellant/claimant had cited a decision of the Hon'ble Supreme Court in **Rekha Jain v. National Insurance Co. Ltd.[AIR 2013 SC 3429]** wherein in a case of 30% permanent disability it was held that the claimant being an actress have suffered 100% functional disability since she would not be able to pursue her career in acting. Accordingly she was granted compensation by accepting her functional disability at MACA 197 & 3465/2015 4 100%. In the case at hand, evidence was let in to prove that the claimant had qualification of Masters in 'Animation Engineering' obtained from the Kerala Computer Saksharatha Mission. Further, the evidence is to the effect that he was working as a 'Web Designer' in a private institution. Ext.A17 certificate issued from the said institution is to the effect that the claimant was working as a 'Graphics Designer' before the accident at a monthly remuneration of Rs.15,000/-. PW2 is the person who had issued Ext.A17 Certificate who deposed that on acquiring experience the claimant will be eligible to get monthly income of Rs.25,000/-. When cross examined on behalf of the Insurance Company, credibility and reliability of Ext.A17 was challenged, is the observation made by the Tribunal. However, PW2 had conceded that the Computer Centre was not being run under any Government Agency. But the Tribunal, based on the finding that the claimant had MACA 197 & 3465/2015 5 completed a course in Animation and taking into consideration of the prevailing socio economic circumstances with respect to earnings of a Web Designer, fixed the income of the claimant at Rs.10,000/- per month. Learned counsel for the appellant/claimant contended that the Tribunal ought to have accepted the Salary Certificate (Ext.A17) and ought to have adopted Rs.15,000/- as basis for arriving at the correct multiplicand. He also pointed out that the Tribunal had failed in considering any thing towards future prospects in the career of the appellant/claimant. Per contra, learned Senior Counsel appearing for the appellant/insurer pointed out that, in the original claim petition filed before the Tribunal, the claimant had not indicated his occupation or the name of the institution which issued Ext.A17 Certificate. It is also pointed out that the monthly earnings claimed in the O.P.(MV) was only Rs.10,000/-. MACA 197 & 3465/2015 6 4. While evaluating the rival contentions based on the evidence available on record, we are of the opinion that the non-acceptance of Ext.A17 and the salary mentioned therein cannot be termed as improper or erroneous. But at the same time we are of the opinion that the Tribunal ought to have considered the increase in the monthly income on the aspect of future prospects in the career, the claimant being a qualified Web Designer. It is trite law by this time that, with respect to persons earning fixed income on the basis of special qualifications, future prospects at least at the rate of 50% of the existing income need to be added while calculating the compensation for loss of dependency or permanent disability. Hence we are inclined to fix the multiplicand at Rs.10,000/-+ 50% increase towards future prospects. Computed on that basis the compensation awarded towards permanent disability need to be reworked by accepting the fact that there is 100% functional MACA 197 & 3465/2015 7 disability. Hence the amount of compensation under the head of permanent disability is refixed at Rs.32,40,000/(15000x12x18x100%). This will entitle the claimant for an enhancement of the compensation awarded under that head to the tune of Rs.14,25,600/- (32,40,000 - 18,14,400). 5. Learned counsel for the appellant/claimant contended that the Tribunal went erred in awarding only a sum of Rs.60,000/- towards loss of earning, because the injured had undergone prolonged treatment and various surgical procedures. It is stated that there is evidence to the effect that he is still continuing treatment and is not in a position to undertake any engagement in life. It is to be noted that the claimant became functionally disabled to a total extent and on that basis compensation for disability was calculated. Hence compensation under the head of loss of earning cannot be awarded for any longer period, which will eventually result in duplication of the compensation. MACA 197 & 3465/2015 8 Hence we do not find any ground to interfere with the compensation awarded by the Tribunal under the head of loss of earnings. 6. The appellant/claimant had raised a contention that the amount of Rs.2,00,000/- awarded towards future medical expenses is highly inadequate and insufficient. He has filed Annexures-A1 and A2 documents in the appeal along with I.A.No.4364/2016 seeking to accept the same as additional documents. Ext.A1 would indicate that, during the year 2016 the claimant had undergone a “Plastic Reconstructive Surgery” at the Amrita Institute of Medical Sciences, Kochi. Diagnosis mentioned therein is, sunken flap syndrome. It would further indicate that he had undergone another surgery during the year 2016. Annexure A-2 would reveal that an amount of Rs.1,37,457/- was the total charges paid for such procedure undergone by him during the year 2016. It is contended that the claimant has MACA 197 & 3465/2015 9 to undergo such extensive treatment in future also, considering the nature of disability and the continuing disease. However, we take note of the fact that there is no medical evidence forthcoming specifically mentioning about such treatment required in future or with respect to the expenses which need to be incurred for such continued treatment. Therefore, we are of the opinion that the amount of Rs.2,00,000/- awarded towards expenses for future medical treatment is justifiable and reasonable. 7. Learned Senior Counsel appearing for the AppellantInsurer contended that, after awarding a huge amount towards compensation for permanent disability, the Tribunal went highly erred in awarding compensation to the tune of Rs.5 lakhs under the head of loss of amenities and enjoyment in life and a further amount of Rs. 3,00,000/under the head of compensation for disfiguration. Per contra, learned counsel for the appellant/claimant MACA 197 & 3465/2015 10 contended that, in a case of total functional disablement and total paralysis the victim is deprived of all amenities and enjoyment which a normal person had in his life. He has to suffer such deprivation during the entire life time. Hence the compensation awarded under the head of loss of amenities and enjoyment in life is quite reasonable is the contention. In support of the contention that the Tribunal should award just and reasonable compensation under the head of loss of amenities and enjoyment in life, over and above the compensation for disability, he had cited various decisions of the Honourable Supreme Court. So also it is contended that both the limbs of the injured had become motionless and he is not in a position to sit, but can only lay flat. There is severe disfiguration in his physical appearance and the compensation of Rs.3,00,000/- awarded on this count is not at all excessive, it is contended. It is also pointed out that the victim had loss of skull bone and MACA 197 & 3465/2015 11 certain portion of the skull is only covered by skin. 8. Question to be decided is as to whether the amounts awarded under the heads of loss of amenities and enjoyment in life and loss of disfiguration are reasonable or not. It is to be taken note of that, the fact that the appellant/claimant was adequately compensated for the total disablement and for the consequential loss of income. That being the position whether the amounts to be awarded under the head of loss of amenities and enjoyment in life or loss for disfiguration should be nominal and conventional. In a decision of the Hon'ble Supreme Court in **Raj Kumar v. Ajay Kumar (2011(1)KLT 620(SC)** it is observed that, when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal MACA 197 & 3465/2015 12 amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Taking note of the said principle remaining settled, we are of the opinion that the total amount of Rs. 8 lakhs awarded under the heads of loss of amenities and enjoyment in life and compensation for disfiguration, is excessive and is on the higher side. We are of the considered opinion that on a reasonable estimation, the compensation under these two heads can be limited to a sum of Rs.4 lakhs. This will amount to a deduction of the total compensation awarded by the Tribunal by a sum of Rs. 4 lakhs. 9. Learned Senior Counsel contended that the compensation awarded for pain and sufferings at Rs. 5 lakhs is excessive. Considering the gravity of the injuries sustained and considering the prolonged treatment undergone by the victim and also considering the present MACA 197 & 3465/2015 13 state of affairs wherein he is totally bed ridden and continuing future treatment, we are of the opinion that no interference is warranted on that head. 10. Under the above mentioned circumstances, the total enhancement of compensation for which the appellant/claimant is entitled at Rs.10,25,600/- (14256004,00,000). Even though there is a dispute with respect to the rate of interest to be awarded, we are not inclined to make any modification in that respect. Hence we hold that the enhanced amount of compensation will carry interest at the rate of 8% per annum from the date of the claim petition till realisation. 11. In the result, the above appeals are hereby disposed of by enhancing the total compensation awarded by the Tribunal by a further sum of Rs.10,25,600/- (Rupees ten lakhs twenty five thousand and six hundred only) which will carry interest as mentioned above.The appellant/Insurer MACA 197 & 3465/2015 14 will make deposit of the said amount, less amount if any already paid, within a period of two months. It is made clear that the appellant/claimant will be entitled to approach the Tribunal seeking withdrawal of the amount and in such case the Tribunal shall pass appropriate orders considering the question of permitting withdrawal, without any further delay. **Sd/-** **C.K. ABDUL REHIM JUDGE** Sd/- **SHIRCY V. JUDGE** **ks.** True copy P.S. to Judge MACA 197 & 3465/2015 15 MACA 197 & 3465/2015 16