United India Insurance Co. Ltd. v. Syam Raj

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942** ## **MACA.No.1834 OF 2014** **AGAINST THE AWARD IN OP(MV) NO.904/2009 DATED 03-04-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT:** **UNITED INDIA INSURANCE CO. LTD. CHITTOOR ROAD, ERNAKULAM, REP.BY THE ASSISTANT MANAGER, UNITED INDIA INSURANCE CO.LTD., REGIONAL OFFICE ERNAKULAM, SARANYA, HOSPITAL ROAD, KOCHI-11.** **BY ADVS. SRI.A.R.GEORGE SRI.JOHN JOSEPH VETTIKAD** ## **RESPONDENT:** ## **SYAMRAJ** **S/O.SASI, THATTAMPARAMBIL HOUSE, DESAM KARA, CHENGAMANAD VILLAGE.** **R1 BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-06-2020, ALONG WITH CO.186/2014, THE COURT ON 08-06-2020 DELIVERED THE FOLLOWING:** **MACA. No.1834 OF 2014** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942** **CO.No.186 OF 2014 IN MACA. 1834/2014** **AGAINST THE ORDER/JUDGMENT IN MACA 1834/2014 OF HIGH COURT OF KERALA** ## **CROSS OBJECTOR:** **SYAMRAJ AGED 32 YEARS S/O.SASI, THATTAMPARAMBIL HOUSE, DESAM KARA, CHENGAMANAD VILLAGE. REP. BY HIS FATHER SASI, S/O.SIVAN, AGED 57 YEARS THATTAMPARAMBIL HOUSE, DESA KARA CHENGAMANAD VILLAGE** **BY ADVS. SRI.A.N.SANTHOSH SMT.ANUPAMA JOHNY** ## **RESPONDENT:** **UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, JOSE TRUST BUILDING CHITTOOR ROAD, ERNAKULAM** **R1 BY ADV. SRI.JOHN JOSEPH VETTIKAD** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 03-06-2020, ALONG WITH MACA.1834/2014, THE COURT ON 08-06-2020 DELIVERED THE FOLLOWING:** **MACA. No.1834 OF 2014** **3** ## **[CR]** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 8[th] day of June, 2020**_ [ _M.A.C.A. No.1834 of 2014 & C.O. No._ 186/2014] The 3[rd] respondent-insurer in OP(MV) No.904/2009 of the Motor Accidents Claims Tribunal, North Paravur, has filed this appeal aggrieved by the Award dated 03.04.2014 therein. The petitioner in the said OP(MV) has preferred Cross Objection No.186/2014. 2. On 25.12.2008, the respondent (petitioner in the OP(MV)) while travelling on a motorcycle as pillion rider, was hit by another motorcycle which came in a rash and negligent manner. The respondent sustained very serious **MACA. No.1834 OF 2014** **4** injuries and was taken to Lakeshore Hospital, Ernakulam. The respondent had to be treated in the hospital for one long year, as in-patient. The respondent came out of the hospital totally disabled. His disability was assessed at 90%. The respondent filed OP(MV) assessing damages of ₹1,38,40,000/-. But, the claim was limited to ₹75,00,000/-. 3. The appellant-insurer alone contested the OP(MV). The insurance coverage on the offending vehicle was admitted. But, the appellant contended that accident was not due to the rash and negligent driving of the offending motorcycle. The appellant is not liable to indemnify the owner of the motorcycle since there was violation of policy condition. The appellant denied the age, occupation and monthly income of the respondent and nature of injuries sustained by him. The respondent produced Exts.A1 to A25 documents and examined PWs 1 and 2. The appellant did not adduce any oral or documentary evidence. **MACA. No.1834 OF 2014** **5** 4. The Tribunal, after appreciating the evidence, held that the accident was as a result of negligence of driver of the offending motorcycle. The respondent was working abroad and his monthly income was assessed by the Tribunal as ₹10,000/-. The Tribunal noted that the respondent has suffered 90% disability. The respondent had to treat as an in-patient in hospital for an year. After considering all aspects of the case, the Tribunal awarded an amount of ₹46,63,400/- under the following heads:- |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**claimed**<br>**(Rs.)**|**Amount**<br>**awarded**<br>**(Rs.)**|**Basis-vital**<br>**detail in**<br>**nutshell**| |---|---|---|---|---| |1|Damage to clothing|1,000|1,000|| |2|Transportation expenses|9,000|50,000|| |3|Future transportation expenses|50,000|Nil|| |4|Medical and treatment expenses|10,00,000|7,59,000|(Ext.A22 series<br>to A25 series)| |5|Future medical expenses|5,00,000|3,00,000|| |6|Bystander expenses|60,000|2,12,000|| |7|Future bystander expenses|5,00,000|5,00,000|| |8|Physiotherapy expenses|50,000|Nil|| |9|Future physiotherapy expenses|2,00,000|Nil|| |10|Water bed|20,000|Nil|| |11|Future water bed|80,000|Nil|| |12|Loss of income for 6 months|90,000|60,000|(10,000 x 6)| |13|Cost of Catheter|10,000|Nil|| |14|Future cost of Catheter|50,000|Nil|| **MACA. No.1834 OF 2014** **6** |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**claimed**<br>**(Rs.)**|**Amount**<br>**awarded**<br>**(Rs.)**|**Basis-vital**<br>**detail in**<br>**nutshell**| |---|---|---|---|---| |15|Pain and suffering|5,00,000|3,00,000|| |16|Loss of amenities of life,<br>discomforts & inconvenience<br>caused|5,00,000|3,00,000|| |17|Loss of earning power|48,60,000|Nil|| |18|Compensation for permanent<br>disability|48,60,000|18,36,000|(90%)| |19|Loss of marriage prospects|5,00,000|2,50,000|| |20|Nursing and attendance|Nil|95,400|(475 days IP)| ||**Total**|1,38,40,000<br>Limited to<br>75,00,000|**46,63,400**|| The Tribunal held that the respondent will be entitled to get 8% interest for the amount of ₹38,63,400/- from the date of the OP(MV). The respondents in the OP(MV) were held jointly and severally liable to pay the compensation. Aggrieved by the Award, the appellant-insurer is before this Court. 5. Learned Standing Counsel for the appellant argued that the respondent was not a highly educated person. The Tribunal assessed ₹10,000/- as his monthly income, which is much on a higher side, taking into account the fact that the accident in question occurred in the year **MACA. No.1834 OF 2014** **7** 2008. The 90% disability found by the Tribunal is also very high. The respondent did not prove his income certificate examining the issuer of the certificate. The learned Standing Counsel for the appellant further argued that the respondent was a bachelor. Therefore, whatever be his monthly income, 50% of the same should have been deducted as his personal and living expenses, going by the judgment of the Apex Court in _**Sarla Verma and others v. Delhi Transport Corporation and another** [(2009) 6 SCC 121]_ and _**Reshma Kumari and others v. Madan Mohan and another** [(2013) 9 SCC 65]._ The Tribunal has not deducted any amount towards personal and living expenses while fixing the notional income of the respondent. The learned Standing Counsel for the appellant further argued that the Tribunal has granted ₹3 lakhs as future medical expenses, which is on a much higher side. There was no justification for the Tribunal to award an amount of ₹2,12,000/- towards bystander expenses and ₹5 lakhs towards future bystander expenses. Similarly, the award of ₹3,00,000/- towards pain **MACA. No.1834 OF 2014** **8** and suffering is also excessive, contended the Standing Counsel for the appellant. Therefore, the compensation awarded by the Tribunal has to be reduced substantially. 6. The respondent, who preferred C.O. No.186/2014, on the other hand argued that he was a qualified Fitter/Welder working abroad. Though the Medical authorities assessed his disability as 90%, the disability should be treated as 100% for the purpose of granting compensation for loss of earning capacity, since the respondent cannot do any work whatsoever consequent to the accident. The learned counsel for the respondent pointed out that the respondent had to be treated as an inpatient for 475 days. The respondent has lost his vision and mobility and he cannot live without the assistance of a bystander for the rest of his life. The Tribunal erred in not considering the future prospects of the respondent while arriving at his notional income for the purpose of grant of compensation. Out of the amount of ₹46,63,400/- awarded **MACA. No.1834 OF 2014** **9** by the Tribunal, more than ₹7 lakhs was towards medical expenses actually incurred till then. The Tribunal allowed compensation towards loss of income only for a period of six months in spite of the fact that the respondent was treated as an in-patient for 475 days. The Award of the Tribunal should therefore be suitably modified enhancing the compensation awarded, it was urged. 7. I have heard learned Standing Counsel for the appellant and learned counsel for the respondent. 8. While considering the case, it is necessary to understand the seriousness of the injuries suffered by the respondent and his physical state of affairs after his treatment. The treatment records reveal the following:- _“Patient was admitted in the SICU and was kept under observation. CT scan of the head was done and it did not show any intracranial pathology. He had multiple facial fractures. A skeletal survey was done and fractures to his appendicular skeleton were ruled out. He improved in sensorium to GCS 15/15 over the next 36 hours and was shifted to wards. Since there was no neurosurgical problem patient was transferred to the care of facio maxillary_ **MACA. No.1834 OF 2014** **10** _surgeon for treatment of his facial bone fractures. The same was done under GA after an elective tracheostomy on 31.12.2008. He was shifted back to wards on 01.01.2009. On 04.01.2009 he developed fever with chest discomfort and had breathing difficulty. He was shifted to the ICU and was found to have a block in the tracheostomy tube. He gradually went into bradycardia and had to be revived with CPR. He was then ventilated and subsequently weaned off on 07.01.2009. At the weaning time his GCS was 4/15. He was put on vigorous physiotherapy and gradually he showed improvement. His tracheostomy was changed to a metal tube and a PEG was secured for feeding. His tracheostomy was closed and he was shifted out of ICU on 25.02.2009. He started making a gradual progress in the wards. On 06.03.2009 he had a generalised seizure and had to be shifted once again to ICU. He ramined seizure free with anticonvulsants and was shifted back to ward on 09.03.2009. Vigorous physiotherapy was continued and he made a steady progress and improved to GCS E4V2M5. His PEG tube was explanted once he started to consume food orally. On 25.06.2009 the facio maxillary surgeon removed the hard ware since the facial fractures were united by then. Physiotherapy was continued and he is now made to stand with support. He is being discharged and is advised to continue physiotherapy at home.”_ ## At the time of discharge from the hospital, the condition of the respondent is narrated as follows:- _“Mr.Syam Raj underwent evaluation to assess his status post ischemic encephalopathy. He received physical therapy, occupational and speech therapy as part of multimodal stimulation program. There was a perceptible improvement in his visual perception functions during the course of admission._ **MACA. No.1834 OF 2014** **11** _By the time of discharge, he is able to indicate “yes”/”no” consistently with monosyllabals for “yes” and hand movements for “no”. He identify colours and shapes consistently. He is able to stand within parallel bars with bilateral AFOs and knee gaiters with moderate physical assistance. He is dependent for wheelchair mobility and for all his daily living activities. Bladder-bowel : Timed voiding for bladder, dulcolax suppositories as necessary for bowel.”_ ## Ext.A9 discharge summary would reveal as follows:- _“Petitioner was again admitted in the hospital on 27.10.2010 and discharged on 02.12.2010. The condition of the petitioner on discharge is as follows:_ _“Mr.Syam Raj was evaluated by ophthalmology, who opined that no intervention would be indicate now. He received physical therapy and occupational therapy. He continues to need two persons' moderate support along with bilateral knee galters to walk over level ground. With a trial of suspension walking over treadmill, he is inconsistently able to reciprocate lower limb advancement, but is unable to do that over level ground. He has improved in following two step commands. He is able to communicate yes/no using differential short and long vowels respectively. Bladder-bowel- he continues to be on timed voiding. He is being discharged at request as per the request of the family, and would come for resuming the rehabilitation program later. At that time, plan for tapering/discontinuing anti epileptic medications would be done in discussion with Neurology.”_ The afore facts are sufficient to conclude that the respondent has become substantially disabled. **MACA. No.1834 OF 2014** **12** 9. The contention of the Standing Counsel for the appellant is that though the respondent produced income certificate, the same was not proved by examining the employer and the amount of ₹10,000/- monthly income, assessed by the Tribunal is on a higher side. The fact that the respondent was a qualified Fitter/Welder and was working abroad, is not in dispute. Any qualified Fitter working in Sultanate of Oman in the year 2008 would indeed receive a monthly salary of more than ₹10,000/- (in Indian rupees). Even in the case of an unskilled coolie worker or self-employed person in India, the monthly income in 2008-'09 would have been at least ₹6,500/-. Therefore, the finding of the Tribunal that a qualified Fitter working abroad will be drawing a monthly salary of ₹10,000/- cannot be said to be erroneous. 10. The learned Standing Counsel for the appellant then contended that while considering the compensation amount for permanent disability, while arriving at the notional **MACA. No.1834 OF 2014** **13** income of the respondent, the Tribunal did not make any deductions towards personal and living expenses of the respondent. Appropriate decrease in the notional income of the respondent ought to have been made by the Tribunal. In _**Sarla Verma** (supra)_ , it was held in paragraph 31 that in regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. In _**Reshma Kumari** (supra)_ , a three-Judge Bench held that the standard fixed by the Apex Court in _**Sarla Verma** (supra)_ on the deduction for personal expenses in paragraphs 30, 31 and 32 must ordinarily be followed unless a case of departure is made out. In _**National Insurance Co. Ltd. v. Pranay Sethi and others** [(2017) 16 SCC 680]_ , the Constitution Bench of the Apex Court held that as far as the guidelines provided for appropriate deductions for personal and living expenses is concerned, the Tribunals and Courts should be guided by the conclusions in _**Reshma Kumari** (supra)_ . **MACA. No.1834 OF 2014** **14** 11. But, one must keep in mind that the Apex Court has arrived at such conclusions and gave guidelines in respect of deductions of personal and living expenses, in the context of accident cases which result in death of victims and legal heirs of the victims come forward claiming compensation. When death resulted from an accident, while calculating loss of dependency of the legal heirs, only that amount from the income of the deceased which would have received by the family had he been alive, can be taken into account. To arrive at such notional income, necessarily, personal and living expenses the deceased would have expended on himself, should be excluded. But, in the case of grievous injuries rendering a living claimant subject to functional disability, it would be unjust to deduct his own personal and living expenses while calculating his notional income, because the injured claimant will have to incur personal and living expenses, even after the accident. Therefore, argument of the Standing Counsel in this regard, cannot be accepted. **MACA. No.1834 OF 2014** **15** 12. The Tribunal has granted ₹2.12 lakhs as by-stander expenses and ₹5 lakhs as future by-stander expenses. The contention of the learned Standing Counsel for the appellant is that these amounts are excessive. Going by the evidence on record, especially his medical reports, ₹2.12 lakhs granted as by-stander expenses cannot be said to be excessive. As the respondent is living in a nearly paralysed state, it is evident that he would require assistance of by-stander throughout his life. Therefore, ₹5 lakhs granted by the Tribunal towards future by-stander expenses also cannot be said to be excessive. However, the Tribunal, after awarding compensation for medical treatment expenses of ₹7,59,000/- and granting ₹7,12,000/- towards past and future bystander expenses, proceeded to give ₹95,400/- towards nursing and attendance expenses. Award of ₹95,400/- as compensation for nursing and attendance over and above the medical and bystander expenses, cannot be justified and consequential reduction has to be made from the compensation awarded. **MACA. No.1834 OF 2014** **16** 13. In his Cross Objection, the respondent pointed out that though his medical disability is 90%, as far as assessment of functional disability for the purpose of loss of earning capacity is concerned, it should be taken as 100%. The Tribunal has perused all medical records and considered the oral evidence adduced by PW1 and PW2, while assessing the functional disability of the respondent. Therefore, there is no reason to interfere with the findings of the Tribunal in the percentage of disability. 14. The learned counsel for the respondent/Cross Objector pointed out that while fixing the income of the respondent, the Tribunal has not considered future prospects of the respondent in employment at all. The respondent was a skilled Fitter working abroad. He was aged 27 years at the time of accident. In the light of the decisions of the Apex Court in _**Pranay Sethi** (supra)_ and _**Rajesh and others v. Rajbir Singh and others** [2013 (3) KLT 89]_ , 50% of the income is to be added towards future prospects to arrive at **MACA. No.1834 OF 2014** **17** the notional income. Accordingly, the income of ₹10,000/fixed by the Tribunal is enhanced to ₹15,000/-. Consequently, the respondent will be eligible to receive ₹27,54,000/- (₹15,000/- x 12 x 17 x 90/100) as compensation for permanent disability, as against ₹18,36,000/- allowed by the Tribunal. 15. The Tribunal granted compensation towards loss of income for a period of six months. Since the respondent has been granted disability benefits treating his functional disability at 90%, the Tribunal is justified in limiting compensation for loss of income to six months. The Apex Court in _**Raj Kumar v. Ajay Kumar and another** [(2011) 1 SCC 343]_ has held that when compensation is awarded by treating the loss of future earning capacity as 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 only a token or nominal amount may have to be awarded under the head of loss of amenities. **MACA. No.1834 OF 2014** ## **18** ₹3,00,000/- awarded by the Tribunal towards loss of amenities is therefore liable to be reduced. Accordingly, compensation for loss of amenities of life, discomfort and inconvenience is allowed as ₹10,000/-, reducing the compensation by ₹2,90,000/-. In the circumstances, MACA No.1834/2014 filed by the appellant-insurer and Cross Objection No.186/2014 filed by the respondent are partly allowed. The respondent is held to be entitled to the following enhancement in addition to the amount awarded by the Tribunal:- - (i) Compensation for permanent disability ₹9,18,000 (₹15,000/- x 12 x 17 x 90/100 minus ₹18,36,000/- already awarded by the Tribunal) The following deductions are to be made from the compensation amount allowed by the Tribunal:- - (i) Loss of amenities of life, discomfort and ₹2,90,000 inconvenience - (ii) Nursing and attendance ₹95,400 **MACA. No.1834 OF 2014** **19** Accordingly, it is declared that the respondent-Cross Objector will be entitled to an additional compensation of ₹5,32,600/-. The said amount will carry interest at the rate of 8% per annum form the date of the OP(MV). The respondent in C.O. No.186/2014 / appellant in MACA No.1834/2014 is directed to pay the additional compensation within a period of one month. Sd/- **N. NAGARESH, JUDGE** aks/06/06/2020