The New India Assurance Company Ltd. v. Sujatha and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944** **MACA NO. 3165 OF 2015** **AGAINST THE AWARD DATED 03.09.2014 IN OP(MV) NO.635/2009 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT:** **THE NEW INDIA ASSURANCE COMPANY LTD. S.M SHOPPING COMPLEX, ALUVA ROAD, ANGAMALY, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G ROAD, ERNAKULAM.** ## **BY ADV SRI.LAL GEORGE** ## **RESPONDENTS:** **1 SUJATHA, AGED 45 YEARS W/O. SADANANDAN, MACHYATHU HOUSE, CHERAI KARA, PALLIPURAM VILLAGE, KOCHI TALUK, ERNAKULAM – 683 514. 2 BAIJU SAKARIA, SAKARAIA, VENNOKKARAN HOUSE, KORATTY EAST P. O, THRISSUR DISTRICT – 680 308. 3 V.M BABU, AGED 37 YEARS, S/O. MATHAI, VETTIKKO VEEDU, PADAVAPURAM, PALISSERY KARA, KARUKUTTY VILLAGE, ALUVA TALUK – 683 576. BY ADVS. SRI. BOBY MATHEW SMT. K.MEERA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3165 OF 2015** **2** ## **JUDGMENT** This appeal is preferred by the insurer against the award of the Motor Accidents Claims Tribunal, North Paravur in OP (M.V) No.635 of 2009. The status of the parties herein is referred to as it appears in the claim petition unless otherwise specifically mentioned. 2. The petitioner was a Peon in Government L.P School. According to the petitioner, on 12.06.2009, while she was standing on the road side after getting down from the bus bearing registration No. KL-08/AC-4646 near Camco company, Athani, the bus was taken forward rashly and negligently by the second respondent driver and as a result, the bus hit the petitioner and she sustained serious injuries. She was taken to hospital and was treated as an in-patient from 12.06.2009 to 09.01.2010 intermittently and continued treatment thereafter. She claimed an amount of Rs.18,00,000/- as total compensation for the injuries sustained in the **MACA.No.3165 OF 2015** **3** accident. 3. Before the Tribunal, respondents 1 and 2, the owner and the driver of the vehicle respectively, remained ex-parte. The petitioner was examined as PW1 and Exts.A1 to A19 series and Ext.X1 were marked on her side. The 3[rd] respondent insurance company filed a written statement admitting that the vehicle was covered by a valid policy of insurance. However, it was contended that the accident happened solely due to the negligence of the 2[nd] respondent. They also disputed the age, occupation and monthly income of the petitioner. It was further contended that the amount claimed is excessive and exorbitant. 4. The Tribunal found that the accident happened due to the negligence of the 2[nd] respondent, the driver of the vehicle and awarded an amount of Rs.15,42,850/- as compensation with 8% interest per annum from the date of the petition till realisation with proportionate cost of Rs.17,750/-. The 3[rd] respondent insurer was directed to **MACA.No.3165 OF 2015** **4** satisfy the award. The compensation awarded by the ## Tribunal under various heads is as follows:- |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**claimed (in**<br>**Rupees)**|**Amount**<br>**awarded (in**<br>**Rupees)**|**Basis –**<br>**Vital**<br>**detail in**<br>**nutshell**| |---|---|---|---|---| |1|Pain and<br>Sufferings|1,00,000|1,00,000|-| |2|Loss of amenities<br>of life,<br>discomforts &<br>inconvenience<br>caused|1,00,000|1,00,000|| |2|Loss of income|25,000|56,700|4,728x12| |4|Medical expenses|8,00,000|5,23,500|| |5|Bystander<br>expenses|1,00,000|1,00,000|| |6|Transportation<br>expenses|15,000|15,000|| |7|Damage to<br>clothing &<br>articles|1,000|500|| |8|Extra<br>nourishment|20,000|20,000|| |9|Compensation<br>for disability|5,00,000|3,97,150|Ext.X1| |10|Future medical<br>expenses|50,000|50,000|| |11|Future bystander<br>expenses|-|1,80,000|| |12|Loss of earning<br>power|2,00,000|Nil|| |13|Loss of skin and<br>flesh|50,000|Nil|| **MACA.No.3165 OF 2015** **5** |||Total|Rs.19,61,000/-<br>limited to<br>Rs.18,00,000/-|Rs.15,42,850/-||| |---|---|---|---|---|---|---| 5. The 3[rd] respondent insurance company has filed the appeal aggrieved by the quantum of compensation awarded by the Tribunal. According to the appellant, the petitioner continued to work in the school even after the accident and there is no loss of earning power on account of her disability and no amount can be awarded under the head compensation for disability. The appellant also contends that several concessions were extended to the petitioner by the hospital towards medical expenses and the Tribunal went wrong in awarding the amount of Rs.1,36,640/- as objected to, by the appellant under the head medical expenses. The appellant also contends that the Tribunal went wrong in awarding future bystander expenses of Rs.1,80,000/- in addition to the amount of Rs.1,00,000/- awarded under the head bystander expenses. The amount of compensation awarded under **MACA.No.3165 OF 2015** **6** other heads is also challenged by the appellant. 6. While examined as PW1 before the Tribunal, the petitioner has deposed regarding the injuries sustained by her. Ext.A4 wound certificate shows that she has suffered the following injuries:- - “1) Sub trochanteric fracture right knee. - 2) Compound fracture right knee. - 3) Circumferential degloving from inguinal area to upper half of right leg. - 4) Degloving right lower abdomen till umbilicus.” Ext.A5 discharge summary shows that she was discharged from hospital on 19.11.2009. Diagnosis is as follows:- - “- Sub trochanteric fracture (R) femur degloving the hip. - Compound knee. - Crush injury (R) lower limb.” Ext.A6 is another discharge summary which shows that she was again admitted in the hospital on 07.12.2009 for follow up treatment and discharged on 09.01.2010. **MACA.No.3165 OF 2015** **7** Ext.A7 is the discharge summary issued from Arya Vaidya Asramam Ayurveda Hospital, Kodungalloor, which shows that she was admitted in that hospital for Ayurveda treatment on 25.03.2010 and was discharged on 15.05.2010. In Ext. X1 disability certificate issued by the medical board of General Hospital, Ernakulam, the whole body permanent physical disability of the petitioner is assessed at 50%.The Tribunal had the opportunity to see the petitioner and has observed that she was unable to move out on her own and she was brought to the Court hall in a chair carried by bystanders that she was allowed to depose by sitting in the chair. It was noted that her right leg has surgical scars and dis-figuration up to the abdomen. 7. Relying on Ext.A8 statement showing the pay and allowance of the petitioner at the time of accident, the Tribunal took her monthly income as Rs.4,728/-. Since the petitioner was unable to work for about one year, an amount of Rs. 56,000/- (4728×12) was awarded **MACA.No.3165 OF 2015** **8** under the head 'loss of income'. 8. The petitioner was aged 45 years at the time of accident. So, the multiplier to be adopted for assessment of compensation for permanent disability is '14'. Taking the income of the petitioner as Rs.4728/-, the multiplier as '14' and loss of earning capacity as 50%, the Tribunal awarded an amount of Rs. 3,97,150/(4728x12x14x50/100) as 'compensation for permanent disability'. In **Pappu Deo Yadav** _**v**_ **. Naresh Kumar and others [AIR 2020 SC 4424],** the Apex Court has held that, in cases of serious injuries resulting in permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too; and to the extent of disability. Since the petitioner was a permanent employee, the Tribunal ought to have added 30% of the income towards future prospects. Accordingly, the monthly income of the petitioner is refixed as Rs.6146/- (4728+1418). The petitioner is **MACA.No.3165 OF 2015** **9** therefore entitled to an amount of Rs. 5,16,264/(6146×12×14×50/100) under the head permanent disability and an enhanced amount of **Rs.1,19,114/-** is awarded under the said head. The contention of the appellant is that, due to the accident, there is no reduction of income for the petitioner and that she continued to work in the school and was receiving the salary and that there is no loss of earning power on account of the disability. It is to be noted that the Tribunal has not awarded any amount under the head 'loss of earning power'. Ext.A14 certificate issued by the Headmistress of the school certifies that on account of the injuries sustained in the accident, the petitioner was unable to come to school regularly. The presiding officer who had the occasion to see the petitioner in person when she appeared before the Tribunal to give evidence observed that the left leg of the petitioner is disabled due to polio and her right leg is entirely damaged due to the accident and the disability appears to be more than 50%. **MACA.No.3165 OF 2015** **10** The Tribunal fixed the loss of earning capacity of the petitioner as 50% and I do not find any reason to interfere with the same. 9. The petitioner claimed Rs.1,00,000/- towards loss of amenities of life, discomforts & inconvenience caused and the Tribunal has awarded the said amount. For pain and sufferings, an amount of Rs. 1,00,000/- has been awarded as claimed by the petitioner. 10. The Tribunal has awarded an amount of Rs. 5,23,493/- towards medical expenses and treatment. According to the appellant, several concessions were extended to the petitioner by the hospital towards medical expenses and the Tribunal went wrong in awarding the amount of Rs.1,36,640/- (covered by ExtsA17 and A18 bills) as objected to, by the appellant under the head medical expenses. Ext.A17 discharge bill is for an amount of Rs.2,83,658/-. Out of this amount, the hospital gave concession of Rs.1,16,960/and the petitioner paid only Rs.1,66,698/-. Ext.A18 **MACA.No.3165 OF 2015** **11** discharge bill is for Rs.42,943/- and the hospital gave concession of Rs.19,680/- and the petitioner paid only Rs.23,263/-. The Tribunal found that the amounts received by the petitioner due to charity cannot be taken advantage of by the insurer. What has not been paid by the petitioner to the hospital towards medical expenses cannot be granted as compensation in a claim under the Motor Vehicles Act. So the petitioner is not entitled for the amount of Rs.1,36,640/- which was not actually paid by her to the hospital. Therefore, an amount of **Rs.1,36,640/-** has to be deducted from the total compensation. The petitioner is entitled only for an amount of Rs.3,86,853/- towards medical expenses. 11. Towards future medical expenses, the petitioner was awarded an amount of Rs.50,000/-. In **Nagappa v. Gurudayal Singh [(2003) 2 SCC 274],** the Apex Court observed as follows: “23. However, it is to be clearly understood that M.V. Act does not provide for passing of further **MACA.No.3165 OF 2015** **12** award after final award is passed. Therefore, in a case where injury to a victim requires periodical medical expenses, fresh award cannot be passed or previous award cannot be reviewed when the medical expenses are incurred after finalization of the compensation proceedings. Hence, only alternative is that at the time of passing of final award, tribunal/court should consider such eventuality and fix compensation accordingly. No one can suggest that it is improper to take into account expenditure genuinely and reasonably required to be incurred for future medical expenses. Future medical expenses required to be incurred can be determined only on the basis of fair guesswork after taking into account increase in the cost of medical treatment.” In the light of the above observation, I do not find anything wrong with the Tribunal in awarding future medical expenses to the petitioner. 12. Towards past bystander expenses, the petitioner was awarded Rs.1,00,000/- and for future bystander expenses, an amount of Rs.1,80,000/- is seen granted. The petitioner was an inpatient in the hospital **MACA.No.3165 OF 2015** **13** from 12.06.2009 to 19.11.2009 and from 07.12.2009 to 09.01.2010. She was then admitted for Ayurveda treatment on 25.03.2010 and discharged on 15.05.2010. Considering the long period of hospitalisation, the amount awarded for past bystander expenses is reasonable. The learned counsel for the appellant submits that no amount can be awarded towards future bystander expenses and that the petitioner had not claimed any amount under the said head. It is to be noted that the Tribunal which had the opportunity to see the petitioner has observed that she was unable to move out on her own and she was brought to the Court hall in a chair carried by bystanders. Considering the nature of injuries sustained by the petitioner and the permanent disablement on account of those injuries, I find that the compensation awarded under the head future bystander expenses is just and reasonable. 13. The compensation awarded under the other heads appears to be just and reasonable. **MACA.No.3165 OF 2015** **14** 14. The Apex Court, in **APSRTC represented by its General Manager** _**v**_ **. M.Ramadevi and others [(2008) 3 SCC 379],** relying on the judgment in **Nagappa** (supra) has held that High Court is justified in enhancing compensation even when there is no appeal by the claimant. In **Nagappa** (supra), the Apex Court held as under:- “10. Thereafter, S.168 empowers the claims tribunal to "make an award determining the amount of compensation which appears to it to be just." Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation” In the result, the petitioner is entitled to **Rs.15,25,324/-** (15,42,850+1,19,114-1,36,640) only as compensation with 8% interest for the amount of Rs.12,95,324/- (15,25,324-2,30,000) from 17.11.2009 with proportionate cost of Rs.17,540/-. The amount of Rs.2,30,000/- awarded under the heads, 'future **MACA.No.3165 OF 2015** **15** treatment expenses and future bystander expenses' will not carry interest. This Court has granted stay of the award on 30.11.2015 on condition that the appellant deposits 50% of the due amount and the petitioner was given liberty to withdraw the said amount on deposit. The appellant shall deposit the balance amount as modified by this Court with interest and costs within a period of two months from the date of receipt of a copy of this judgment. The appeal is allowed to the extent indicated above. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SPR