The Oriental Insurance Co. Ltd. v. Thomas P.T., K.V. Bijumon & P.K. Prabhakaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** ## **THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930** **MFA.No. 199 of 2003(D)** **----------------------------------OPMV.769/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA** **....................** ## **APPELLANT(S): 3RD RESPONDENT** **-----------------------------------------------** **THE ORIENTAL INSURANCE CO.LTD., KOTTAYAM, REPRESENTED BY ITS ASST.MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.** **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) SRI.ALEXY AUGUSTINE** **RESPONDENT(S): CLAIMANT/RESPONDENTS 1 & 2** **----------------------------------------------------------------------** **1. THOMAS P.T., POONTHAMALA HOUSE, KAVIYOOR P.O. & VILLAGE, THIRUVALLA TALUK.** **2. K.V.BIJUMON, S/O.VASU, CHETTISSERIL HOUSE, KOLAMKALAM BHAGOM, KUZHIMATTOM KARA, PANACHIKADU VILLAGE.** **3. P.K.PRABHAKARAN, THADATHIL HOUSE, NATTAKOM P.O., KOTTAYAM.** **ADV. SRI.S.SUBHASH CHAND FOR R1 SMT.SINDHU MURALEEDHARAN FOR R1 SRI.S.SUBHASH CHAND FOR R1** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J.B. KOSHY & THOMAS P.JOSEPH, JJ.** = = = = = = = = = = = = = = = = = = = = = = = = = = **M.F.A. No.199 of 2003** = = = = = = = = = = = = = = = = = = = = = = = = = = = **Dated this the 13[th] day of November, 2008 J U D G M E N T** ---------------------- ## **Thomas P. Joseph, J.** When can a Court of Appeal interfere with an award of compensation passed by the Motor Accidents Claims Tribunal (for short, “Tribunal”)? Is interference called for in this case? These are the points for decision in this appeal preferred by the Insurer of the offending vehicle challenging the quantum of compensation awarded to the first respondent. 2. On 23.5.1997 first respondent was travelling in bus No.KRK-7078 along Kottayam-Gandhinagar road. When the bus reached Chemmanpadi junction at about 3.00 p.m., it capsized causing serious injuries to the first respondent. He claimed Rs.7,50,000/- as compensation from respondents 2 and 3 and the appellant being the driver, owner and insurer, respectively of the offending vehicle. Tribunal awarded Rs.5,45,000/-. According to the appellant, compensation awarded is exorbitant and without any basis. 3. Heard. Perused the records. 4. Tribunal found that accident occurred due to the rashness and negligence of the second respondent, driver of the offending ## **M.F.A. No.199 of 2003** ## **-: 2 :-** vehicle. That finding has become final. What remained for consideration is only whether compensation awarded required interference. 5. First respondent was aged 35 years at the time of accident. He is an agricultural labourer and claimed that he was earning at the rate of Rs.6,000/- per month. He produced Exhibits A3 to A5 to prove the injuries suffered by him, the nature of treatment and disability. It is revealed from Exhibits A3 and A4 that first respondent suffered the following injuries: - “1. Fracture of left maxilla (L) Le Fort II, 2. Fracture of Zygoma (L), 3. Fracture of nasal bone, 4. Comminuted fracture of mandible”. First respondent underwent inpatient treatment at Medical College Hospital, Kottayam from 23.5.1997 to 5.7.1997 and again from 9.7.1998 to 16.7.1998. He was treated with zygomatic suspension. Second admission was for removal of zygomatic suspension. Exhibit A5 is a disability certificate issued by the District Medical Board, Pathanamthitta. In that certificate, disability of the first respondent is stated as follows: ## **M.F.A. No.199 of 2003** ## **-: 3 :-** “Restricted opening of mouth, Imperfect mastication, Nasal block with anaesthesia of left side of face, Diplopia (Left eye) and Ectropion (L), and; Epiphora”. Medical Board certified the degree and extent of the disability as 24%. 6. First respondent gave evidence as P.W.1. He claimed that he is an agricultural labourer and was earning at the rate of Rs.6,000/per month. As to his disability he stated that he has lost vision of left eye, has double vision of right eye, is unable to open the mouth and take solid food, is suffering from intermittent head ache, is unable to close the left eye and requires assistance of a bystander. Tribunal has recorded in the deposition of P.W.1 that there are ugly marks on most parts of his face. It is also the version of first respondent as P.W.1 that he was given food through a tube during the period of treatment. In his cross-examination it was pointed out that the certificate produced by him does not show that vision of the right eye is affected. Tribunal has recorded in the deposition (of P.W.1) that vision of the right eye is seemingly lost. 7. Accepting the version of the first respondent regarding monthly income, Tribunal awarded Rs.6,000/- (Claim was for Rs.6,000/only) as loss of earnings. For transportation, Rs.500/- was awarded. For extra nourishment, Rs.4,000/- was awarded. Though Exhibit A6 ## **M.F.A. No.199 of 2003** ## **-: 4 :-** series, bills for purchase of medicines was only for Rs.4,151/-, Rs.50,000/- was awarded towards treatment expenses. For pain and suffering, Rs.75,000/- was awarded. Rs.1,00,000/- was awarded as compensation for disability. Apart from that, Rs.80,000/- was awarded for loss of earning power and another Rs.80,000/- was awarded for loss of amenities of life. For loss of expectation of life, Rs.50,000/- was awarded and Rs.1,00,000/- was awarded for disfigurement. It is vehemently contended by the counsel for appellant that compensation awarded by the Tribunal is exorbitant. 8. Assessment of damages depends much on the exercise of discretion by the Judge concerned. A Court of Appeal will set aside an award if the verdict on damages is such that it is out of all proportion to the circumstances of the case, i.e., it is far too high or far too low. It is stated in 'Kemp & Kemp', The Quantum of Damages, Vol.I at page 22 regarding appeals from an award made by a Jury, thus: “.................In earlier editions of this book we cited numerous passages from judgment dealing with the principles upon which an appellate court will interfere with an award of damages made by a judge. But we think it sufficient merely to refer to the following extract from Lord Wright's speech in ## _**Davies v. Powerll Duffryn Associated Collieries**_ **-: 5 :-** ## **M.F.A. No.199 of 2003** ## _**Ltd.**_ (1942) A.C. 601. He said: “Where the award is that of the Judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial Judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by _**Gireer .L.J. in Flint v. Lovell**_ (1935) 1 K.B. 354). In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law or has misapprehended the facts, or has for these other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency”. ## **M.F.A. No.199 of 2003** ## **-: 6 :-** The phrase “a wholly erroneous estimate” is the one which in recent years appears to have been most frequently used by the Court of Appeal when describing an award with which the court has interfered on the ground of excess or insufficiency. But that still leaves the difficult question, namely, what as a wholly erroneous estimate of damages. We respectfully adopt Diplock L.J.'s approach in _**Every v. Miles (1964 C.A. No.261)**_ and submit that a judge makes a wholly erroneous estimate, when his award falls above or below the bracket within which awards of the appropriate standard are contained. The width of this bracket will vary according to the nature of the case. The more imponderable the elements involved in making the assessment, the wider the bracket will be..” (underline supplied by me). A Court of Appeal will not necessarily interfere with an award for the reason that the award on a particular count is too high or too low, if the award taken as a whole is just and fair. We shall consider the challenge to the award in this case keeping the above principles in mind. 9. Tribunal fixed the monthly income of the first respondent at Rs.6,000/-. Concededly, first respondent was an agricultural ## **M.F.A. No.199 of 2003** ## **-: 7 :-** labourer and the accident occurred on 23.5.1997. Considering the wages payable to agricultural labourers during the time of accident, we are inclined to think that the income fixed by the Tribunal is exorbitant. Taking into account all relevant circumstances, we fix the monthly income of the first respondent during the time of accident as Rs.3,000/-. However, since the Tribunal awarded only Rs.6,000/- for actual loss of earnings and since evidence revealed that the first respondent suffered serious injuries including several fractures, underwent prolonged treatment and hence it is quiet possible that he may not have been able to work for more than two months, we are not interfering with the award of Rs.6,000/- for loss of earnings. 10. Rs.4,000/- was awarded for extra nourishment. It is contended for the appellant that the award is excessive. It is seen that first respondent was an inpatient for 56 days. He gave evidence that he was given liquid food through tube inserted below his neck. That version of the first respondent is not challenged in crossexamination. It is also stated by the first respondent that he is not able to take solid food which we find no reason to disbelieve in the light of the injuries he suffered. Therefore the award of Rs.4,000/- for extra nourishment calls for no interference. 11. Next is concerning treatment expenses. Tribunal awarded ## **M.F.A. No.199 of 2003** ## **-: 8 :-** Rs.50,000/-. Exhibit A6 series, medical bills covered only Rs.4,151/-. First respondent underwent treatment at Medical College Hospital, Kottayam. It is true that the entire expenses incurred in connection with treatment may not be reflected by the medical bills produced and at any rate, it may not have been possible for the first respondent to procure and produce all the medical bills. Some allowance has to be given taking these aspects into consideration. At the same time, amount awarded for treatment expenses must be proportionate with the nature of injuries and the nature and period of treatment undergone. Entitlement of the first respondent is to recover expenses reasonably incurred for treatment. We have stated that first respondent underwent treatment at Govt. Medical College Hospital. There is no case or evidence that the first respondent had to pay for treatment in that hospital. There is also no case or evidence of treatment elsewhere, incurring expenses. In the circumstances and also bearing in mind the amount covered by Exhibit A6 series, we are of the view that amount awarded towards treatment expenses is too high. Considering all the relevant aspects stated above, we are of the opinion that Rs.25,000/- would have been just and fair compensation for treatment expenses. Compensation payable for treatment expenses is modified as Rs.25,000/-. ## **M.F.A. No.199 of 2003** ## **-: 9 :-** 12. As compensation for pain and suffering, Tribunal awarded Rs.75,000/-. Award for pain and suffering must correspond to the nature of injury and the nature and period of treatment. Compensation awarded for pain and suffering must also be comparable with amount awarded in similarly placed cases. There is no dispute that first respondent suffered serious injuries. Even after discharge from the hospital, first respondent must have undergone treatment. But the sum of Rs.75,000/- awarded for pain and suffering is exorbitant and without any proportion. Considering the injuries suffered and the nature and period of treatment, we are satisfied that Rs.35,000/- will be just and fair compensation for pain and suffering. Accordingly, compensation payable for pain and suffering is modified as Rs.35,000/-. 13. Tribunal has awarded compensation separately for disability and loss of earning power (Rs.1,00,000/- for disability and Rs.80,000/- for loss of earning power) though loss of earning power is the consequence of disability which is a physical impairment. A Full Bench of this Court, in **Oriental Insurance Co. Ltd. v.** **Hariprasad** (2005 (4) KLT 977) has held that compensation cannot be awarded separately on account of permanent disability and loss of earning power. Therefore, separate awards for disability and loss of ## **M.F.A. No.199 of 2003** ## **-: 10 :-** earning power is not permissible. We also note that the Tribunal has not adopted any basis for awarding compensation on those two counts. In cases of this nature, the most appropriate way of assessing compensation for loss of earning power is the multiplier method. In Exhibit A5, permanent disability is certified as 24%. Though first respondent in his evidence as P.W.1 stated that he has double vision in the right eye and loss of vision of the left eye, going by Exhibit A5, double vision is for the left eye. No defect is certified for the right eye. There is no reason to discard Exhibit A5. Hence we accept the recommendation in Exhibit A5 regarding percentage of permanent disability (24%). Since the first respondent was aged 35 years, multiplier to be taken is '16'. Taking monthly income as Rs.3,000/-, compensation payable for disability and loss of earning power is Rs.1,38,240/- ([3000x12x16x24/100]) as against Rs.1,80,000/awarded by the Tribunal for disability and loss of earning power. The award for disability and consequent loss of earning power is modified accordingly. 14. For loss of amenities of life, Tribunal awarded Rs.80,000/-. The head of loss of amenities of life embraces everything which reduces the victim's enjoyment of life considered apart from the pain and suffering undergone by him. Brickett L.J., Said in **Manley v.** ## **M.F.A. No.199 of 2003** ## **-: 11 :-** **Rugby Portland Cement Co. Ltd.** (1952 C.A. No.286 - reported in Kemp & Kemp, 2[nd] Edn. at page 624) thus: “There is a head of damage which is sometimes called loss of amenities; the man made blind by the accident will no longer be able to see the familiar things he has seen all his life; the man who has had both legs removed and will never again go upon his walking excursions - things of that kind - loss of amenities”. The victim, even when was unconscious is entitled to get damage for loss of amenities of life, as held in **West v. Shepherd** (1964) A.C. 326). In awarding damages for loss of amenities, courts have to award reasonable damages taking into consideration previous awards for comparable injuries. Unless one has suffered any disability, it is difficult to assess the effect it will have upon the injured. We have described the nature of injuries, period of treatment and the inconvenience the first respondent is suffering from. Tribunal has recorded in the deposition of first respondent (P.W.1) that vision of his left eye is seemingly lost. Exhibit A5 states that there is double vision in the left eye. It is also stated in Exhibit A5 that opening of ## **M.F.A. No.199 of 2003** ## **-: 12 :-** the mouth is restricted. These disabilities would affect the enjoyment of amenities of life. Considering all relevant aspects, we are of the view that Rs.20,000/- will be just and fair compensation for loss of amenities of life, as against Rs.80,000/- awarded by the Tribunal. Award on that count is modified accordingly. 15. Tribunal awarded Rs.50,000/- for loss of expectation of life. It is contended that the award is exorbitant. An injured whose expectation of life is diminished on account of the injuries he suffered, is entitled to be compensated for such loss. Knowledge of the injured of his shortened expectation of life could be a substantial element in his pain and suffering. In **Davis v. Smith** (1958 C.A. 34 - reported in Kemp & Kemp 2[nd] Edn. at page 353) Lord Goddard said: “With regard to a person who is killed outright, his claim passed to his executors. It is one thing to talk about what a person suffers from loss of expectation of life if he is killed outright so that he never realises that he is losing a period of happy life. It is another to talk about a person who is injured, and injured so much that in the opinion of medical men he will not have anything like as long as he would have had he not been injured, and who has to linger or go through such life as is left to him with that ## **M.F.A. No.199 of 2003** ## **-: 13 :-** knowledge. But I think we are bound, in the present state of the law, to assume that we cannot increase the damages for loss of expectation of life merely by reason of the fact that the person is still living, and is continuing to live. If the question is taken to the House of Lords, it may be that the House of Lords will give an opinion whether their previous decision in Benham v. Gambling applies to that case as to a case where a man dies, as a result of an accident, almost immediately. “I think we must take it, therefore, that the damages for loss of expectation of life must be very moderate”. In this case we have awarded just and fair compensation for pain and suffering undergone by the first respondent. He has also been awarded compensation for loss of amenities of life. Compensation payable for loss of expectation of life should be moderate. In the facts and circumstances of the case, we are satisfied that Rs.20,000/- is sufficient compensation for loss of expectation of life. Award on that count is modified accordingly. 16. What remained is compensation awarded for disfigurement of face (Rs.1,00,000/-). It is contended on behalf of the appellant that the award is without any basis. Tribunal has recorded in ## **M.F.A. No.199 of 2003** ## **-: 14 :-** the deposition of P.W.1 that there are ugly marks on most parts of his face. There is also defect of vision of the left eye and restricted opening of the mouth. Considering the age of the first respondent and the apparent disabilities stated above, we are of the opinion that Rs.35,000/- would be just and fair compensation. Award passed by the Tribunal on that count is modified accordingly. 17. It is then contended by counsel for appellant that Tribunal went wrong in awarding interest at the rate of 12% per annum. Rate of interest to be awarded is within the discretion of the Tribunal of course, to be exercised judicially and taking into account the rate of interest prevailing at the relevant time and other relevant factors. Accident in this case occurred on 23.5.1997. A Court of Appeal will interfere with the exercise of discretion by the lower authority only when the discretion is exercised illegally or arbitrarily. Considering the rate of interest prevailing during the time of accident and since the exercise of discretion is not shown to be illegal or arbitrary, we decline to interfere with the rate of interest awarded. 18. Award passed by Tribunal, we are satisfied, falls above the bracket within which awards of the appropriate standard are contained, even if it is taken that the width of the bracket has to be extended a little in this case considering the seriousness of the injuries **M.F.A. No.199 of 2003** ## **-: 15 :-** suffered by the first respondent and its after effect and hence it needs interference. In modification of the award passed by the Tribunal, first respondent is found entitled to get compensation as follows: Loss of earnings Rs.6,000/Transportation expenses Rs.500/Extra nourishment Rs.4,000/Pain and suffering Rs.35,000/Disability and loss of earning power Rs.1,38,240/Loss of enjoyment of amenities of life Rs.20,000/Loss of expectation of life Rs.20,000/- Disfigurement Rs.35,000/-----------------Total Rs.2,58,740/======== Resultantly, this appeal is allowed in part in the following lines. (i) Compensation payable to be first respondent and awarded by the Tribunal is modified as Rs.2,58,740/- (Rupees Two lakhs fifty eight thousand, seven hundred and forty only). (ii) The award to the extent it concerned interest and cost is ## **M.F.A. No.199 of 2003** ## **-: 16 :-** confirmed. (iii) Appellant is directed to deposit the amount in the Tribunal. (iv) On such deposit, first respondent can withdraw Rs.75,000/(Rupees Seventy five thousand only). Rest of the amount shall be deposited in his name in a Nationalised Bank for three years with liberty to him to withdraw the monthly interest. (v) If it becomes necessary for the first respondent to withdraw any amount from the amount in deposit, he can approach the Tribunal for that purpose. (vi) Parties shall suffer their cost in this appeal. Interlocutory application No.633 of 2004 shall stand closed. ## **J.B. KOSHY, JUDGE.** ## **THOMAS P.JOSEPH, JUDGE.** vsv