Kerala High Court
Dilna Dineshan, Represented By Father ... vs United India Insurance Co. Ltd., Kannur on 22 February, 2022
Author: C.S.Dias
Bench: C.S.Dias
1
MACA No.147 of 2014
and
Cross Objection No.9 of 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 22ND DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943
MACA NO. 147 OF 2014
AGAINST THE ORDER/JUDGMENT IN OPMV 1516/2006 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL , THALASSERY
APPELLANT/S:
UNITED INDIA INSURANCE COMPANY LIMITED
KANNUR NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE,
"SHARANYA", HOSPITAL ROAD, KOCHI - 11.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENT/S:
DILNA DINESHAN (MINOR),D/O.DINESHAN, PATTERKANDI ARAYAN
HOUSE, AZHIKODE P.O., KANNUR - 09. REPRESENTED BY HER
FATHER AND NEXT FRIEND M.DINESHAN,
S/O.MADHAVAN,PATTERKANDI ARAYAN HOUSE, AZHIKODE P.O.,
KANNUR - 09.
*DILNA DINESHAN, D/O.LATE DINESHAN, AGED 25 YEARS,
RESIDING AT PATTERKANDI ARAYAN HOUSE, AZHIKODE P.O.,
KANNUR - 670 008 (CAUSETITLE IS CORRECTED AS PER ORDER
DATED 22.2.2022 IN IA 1/2022)
BY ADVS.
ABDUL RAOOF PALLIPATH
K.R.AVINASH (KUNNATH)
M.K.SUMOD
E.MOHAMMED SHAFI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 22.02.2022 ALONG WITH CROSS OBJECTION No.9/2015,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
MACA No.147 of 2014
and
Cross Objection No.9 of 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 22ND DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943
CO NO. 9 OF 2015
in
MACA 147 OF 2014
AGAINST THE ORDER/JUDGMENT IN OPMV 1516/2006 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL , THALASSERY
PETITIONER/S:
DILNA DINESHAN,AGED 11 YEARS (MINOR),RESIDING AT
PATTERKANDI ARAYAN HOUSE,AZHIKODE.P.O,AZHIKODE,KANNUR-9,
REPRESENTED BY FATHER AND NEXT FRIEND M.DINESHAN,
S/O.MADHAVAN, AGED 45 YEARS
*DILNA DINESHAN, D/O.LATE DINESHAN, AGED 25 YEARS,
RESIDING AT PATTERKANDI ARAYAN HOUSE, AZHIKODE P.O.,
KANNUR - 670 008 (CAUSETITLE IS CORRECTED AS PER ORDER
DATED 22.2.2022 IN IA 1/2022)
BY ADV SRI.M.V.AMARESAN
RESPONDENT/S:
UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE,KANNUR.PIN-670014,NOW REPRESENTED BY ITS
MANAGER REGIONAL OFFICE,'SHARANYA',HOSPITAL ROAD,KOCHI-
11.
BY ADV SRI.P.JACOB MATHEW
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 22.02.2022 ALONG WITH MACA 147/2014, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
3
MACA No.147 of 2014
and
Cross Objection No.9 of 2015
"CR"
C.S.DIAS, J.
======================
MACA No.147 of 2014
and
Cross Objection No.9 of 2015
=======================
Dated this the 22nd day of February, 2022.
JUDGMENT
"Not all scars show, not all wounds heal, sometimes you can't always see the pain someone else feels" ― Anonymous.
Is the compensation awarded to Dilna, excessive or just, is the question poised in this appeal and cross objection.
2. The observation in Kajal v. Jagdish Chand [(2020) 4 SCC 413] by the Honourable Supreme Court on the point is worth citing:
"3. How does one assess compensation in such a case? No amount of money can compensate this child for the injuries suffered by her. She can never be put back in the same position. However, compensation has to be determined in terms of the provisions of Motor Vehicles Act, 1988 (for short the Act). The Act requires determination of payment of just compensation and it is the duty of the court to ensure that she is paid compensation which is just."
3. Destiny or fate, whatever you may call it, couldn't be more tragic than this to Dilna. Little did she foresee the misery coming her way? While travelling in a bus from 4 MACA No.147 of 2014 and Cross Objection No.9 of 2015 Azhikode to Puthiyatheru, on 14.01.2006, due to the negligence of its driver, the bus hit a wall and capsized. Dilna suffered multiple injuries and is now paralytic from her chest downwards.
4. Dilna through her next friend and father had filed O.P. (MV)No.1516/2006 before the Motor Accidents Claims Tribunal, Thalassery, against the respondents ― the owner, driver and insurer of the bus bearing registration No.KL 13/H 9778, claiming a compensation of Rs.50,00,000/-. She has averred in the claim petition that, she was treated as an inpatient from 14.1.2006 to 23.2.2006 at the Koyili Hospital, Kannur, Pariyaram Medical College, Kannur and the Tejaswini Hospital, SSIOT, Mangalore. Even now she is continuing with her treatment. She is permanently disabled. On account of the traumatic fractures and dislocation of D2 and D3, she is in a vegetative state and has developed bedsores needing daily dressing. She has no control over her bladder or bowel movements and requires the assistance of two bystanders. She is also advised physiotherapy. She has already incurred Rs.5,00,000/- for medical treatment, extra nourishment and 5 MACA No.147 of 2014 and Cross Objection No.9 of 2015 other expenses. She has suffered physical and mental pain, and her mental agony is intolerable. She was an IVth standard student in the Government Fisheries L.P School, Azhikode. Her life expectancy has been considerably reduced. Hence, she is entitled to a modest estimate of Rs.50,00,000/- as compensation from the respondents.
5. In the same accident, two other children sustained injuries and a person lost his life. The children and the legal representatives of the deceased filed O.P (MV) Nos. 1515/2006, 1258/2006 and 1514/2006 before the same Tribunal, seeking compensation from the respondents.
6. The respondents 1 and 2 ― the owner and driver of the bus ― did not contest the claim petitions and were set ex parte.
7. The third respondent ― insurer ― contested all the claim petitions by filing separate written statements, inter alia, asserting that the second respondent was not negligent in causing the accident. In the investigation conducted by the insurer, it was revealed that the accident happened due to the 6 MACA No.147 of 2014 and Cross Objection No.9 of 2015 mechanical defect of the bus. The third respondent had also affirmed that the compensation claimed was excessive.
8. The Tribunal consolidated and jointly tried all the claim petitions.
9. Dilna and her Doctor were examined as PWs 1 and 2, and Exhibits A1 to A33 were marked in evidence. The disability certificate issued by a four member Medical Board of the Kerala State Co-operative Hospital Complex and Centre for Advanced Medical Services, Pariyaram, was marked as Ext X1. The respondents did not tender any evidence.
10. The Tribunal, after examining the pleadings and materials on record, by its common award, allowed the captioned claim petition, by permitting Dilna to realise from the third respondent an amount of Rs.25,26,150/- with interest and proportionate cost. The comparative table indicating the compensation that was claimed under the different heads and the amounts that were awarded is extracted below, for reference.
7 MACA No.147 of 2014 and Cross Objection No.9 of 2015 SI. Head of claim Amount claimed Amount awarded No (in rupees) by the Tribunal (in rupees) 1 Pain and 10,00,000/- 5,00,000/- suffering 2 Loss of earnings 20,00,000/- 4,00,000/- Loss of amenities 3 Bystander 18,200/- expenses 4 Ambulance 2,324/- expenses 5 Transportation 3,00,000/- 30,000/- charges 6 Extra 4,00,000/- 1,00,000/- nourishment 7 Damage to 3,00,000/- 500/- clothing 8 Medical bills 5,00,000/- 2,10,000/- 9 Cost of urethral -- 548/- catheter 10 Doctors fee -- 31,000/- 11 Cost of water bed -- 4,200/- 12 Physiotherapy -- 880/- charges 13 Loss of future -- 30,000/- prospects 14 Expenditure for -- 30,000/- attendance 15 Future drivers -- 72,000/- and fuel charges 16 Physiotherapist -- 38,000/- fee for one year 8 MACA No.147 of 2014 and Cross Objection No.9 of 2015 17 Medical and -- 48,000/- sanitary expenses 18 Disability 20,00,000/- 10,12,500/- compensation Rs.90,00,000/- 25,26,150/- limited to Rs.50,00,000/-
11. Aggrieved by the allowing of claim petition, the third respondent/insurer has filed the appeal and dissatisfied with the quantum of compensation, Dilna has filed the Cross Objection.
12. Heard; Sri.Mathews Jacob, the learned Senior Counsel appearing for the appellant/insurer and Sri.Sumod.M.K, the learned counsel appearing for Dilna, the respondent in the appeal and the cross objector.
13. Sri.Mathews Jacob argued that the compensation awarded by the Tribunal under the different heads is excessive and the multiplier of '18' applied by the Tribunal is against the principles laid down by the Honourable Supreme Court in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] and National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]. He placed reliance on the decision in 9 MACA No.147 of 2014 and Cross Objection No.9 of 2015 Master Mallikarjun v. Divisional Manager, National Insurance Co.Ltd and another [(2014) 14 SCC 396] to canvas the position that the Honourable Supreme Court has laid down guidelines to be followed in awarding consolidated compensation to children who suffer permanent disability in motor vehicle accidents. He also contended that in claim petitions filed under Section 166 of the Act, seeking compensation for the death of children, the Honourable Supreme Court has fixed the annual notional income of such children in Kishan Gopal and another v. Lala and others [(2014) 1 SCC 244] @ Rs.30,000/- and in Rajendra Singh v. National Insurance Co. Ltd [(2020) 7 SCC 256] @ Rs.36,000/- and adopted the multiplier of 15. Similarly, in Kuruvan Ansari Alias Kuruvan Ali and another v. Shyam Kishore Murmu and another [2021 SCC Online SC 1060] ― in a claim petition filed under Section 163 A of the Act, the annual income of the deceased child was fixed on notionally basis @ Rs.25,000/- and the multiplier of 15 was adopted. He argued that the above benchmark may be followed in determining the compensation payable to Dilna. If the above 10 MACA No.147 of 2014 and Cross Objection No.9 of 2015 yardstick is followed, certainly, the compensation awarded by the Tribunal is excessive and warrants interference by this Court.
14. Sri.Sumod.M.K vehemently countered the above submission. He argued that Master Mallikarjun is no longer good law in view of the Constitutional bench decision in Pranay Sethi and the three Judge Bench decision in Pappu Deo Yadav Vs. Naresh Kumar and others [ AIR 2020 SC 4424], wherein, the Honourable Supreme Court has directed future prospects to be awarded to victims who suffer serious injury. He placed strong reliance on the decision in Kajal v. Jagdish Chand to drive home the point that the Honourable Supreme Court has fixed the monthly income of 12 year old paraplegic child named Kajal on notional basis at Rs.4846/-, awarded future prospects of 40% and then applied the multiplier of 18. Consequently, an amount of Rs.14,65,430.40 was awarded, rounded off to Rs.14,66,000/-. Furthermore, attendant charges were awarded at Rs.10,000/- per month and again the multiplier of 18 was applied. He also asserted that the principles in Kishan Gopal, Rajendra Singh and 11 MACA No.147 of 2014 and Cross Objection No.9 of 2015 Kuruvan Ansari have no application to the case at hand because those were cases where the minor children had lost their lives, but Dilna is a paraplegic like Kajal. Therefore, considering the indistinguishable facts in both the cases, Dilna may be treated akin to Kajal, and compensation may be awarded as in the case of Kajal.
Negligence and Liability
15. Dilna has pleaded in the claim petition that, while she was travelling in the bus, due to the negligence of the second respondent, the vehicle hit a wall and overturned. As an aftermath of the accident, Dilna sustained grievous injuries. To substantiate her pleading, she examined herself as PW1 and proved Exhibit A-1 FIR registered by the Valapattanam Police in Crime No.31/2006. Although the third respondent had denied in its written objection, that there was no negligence on the part of the second respondent, the respondents have not let in any evidence to discredit Exhibit A-1 FIR or controvert the pleadings and materials on record. Therefore, it is proved beyond any iota of doubt that the accident occurred due to the 12 MACA No.147 of 2014 and Cross Objection No.9 of 2015 negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the bus. The third respondent also has not proved that the first respondent had violated the insurance policy conditions. So, the third respondent is to indemnify the liability of the first respondent arising out of the accident. Pecuniary Damages Loss of earning capacity
16. Exhibit A-2 wound certificate substantiates that Dilna had suffered the following twelve injuries:
a) Fracture subluxation at T2/T3 level involving neural k arches T3 vertebral body causing indentation on the cal sac, cord with minimal narrowing spinal canal at T2/T3 level.
b) Abnormal altered signal intensity of the cord extending from C8to T8 level could represent cord contusion/cord edema.
c) Fluid at both pleural spaces -suggestive of haemothorax.
d) Fracture of mandible.
e) Grievous injury over the face (both sides)
f) Grievous injury over both shoulders
g) Grievous spinal cord injury
h) Grievous injury over the left side of the forehead
i) Lacerated infected wound over the left cheek
j) Grievous injury over the back of the neck
k) Grievous injury over upper chest, T2,T3 subluxation
l) Grievous injuries all over the body.13
MACA No.147 of 2014
and Cross Objection No.9 of 2015
17. Dilna was treated at Koyili Hospital, Kannur, Pariyaram Medical College, Kannur and the Tejaswini Hospital, SSIOT, Mangalore from 14.01.2006 to 23.2.2006 i.e., for a period of 94 days. She has produced Exhibit A-16 disability certificate dated 29.3.2012 issued and proved by PW2, who testified, inter alia, that; Dilna is paralysed from her upper chest (T2-3) - totally; she has no control of her chest, waist and both legs; she is not able to walk or stand or even sit up without support; she has no control over bladder and bowel; she is prone to urinary infection; she is progressively developing kyphoscoliosis (bending) of the lower spine and she is 100% disabled as per the PGIMER, Chandigarh scale (Central Government Institute).
18. Dilna's disability was reassessed by a four member Medical Board attached to the Kerala State Co-operative Hospital Complex and Centre for Advanced Medical Services, Pariyaram. The Medical Board by Exhibit X1 disability certificate has endorsed that Dilna has a head injury, spinal cord injury, traumatic paraplegia, sphincter incontinence, grossly atrophic cord fracture, C4 downwards, syrinx from T3 14 MACA No.147 of 2014 and Cross Objection No.9 of 2015 downwards and has a whole body permanent disability of 75% as per the Mc Brides scale.
19. The Tribunal personally ascertained the mental and physical condition of Dilna, as reflected in paragraph 11 of the award, and observed that her condition is so pathetic, acute and heart-breaking; she is using a urine bag, which needs to be changed every four hours; she has no control over her bowel; both her legs are stiff and curved; she has to undergo skin grafting and plastic surgery; she is still undergoing physiotherapy on almost all days; she is belted to the wheel chair and sleeps on a water bed and notwithstanding her medical complications, she secured a distinction in SSLC (10 th grade) examination.
20. It was after assessing the physical and mental condition of Dilna, and appreciating the pleadings, oral testimonies of Dilna and her Doctor and the other materials on record, that the Tribunal passed the impugned award.
21. Kajal v. Jagdish Chand is a case where a twelve year old girl named Kajal suffered grievous injuries in a motor 15 MACA No.147 of 2014 and Cross Objection No.9 of 2015 vehicle accident and became a paraplegic. It is apposite to extract paragraph 6 from Kajal which read thus:
"6. It is impossible to equate human suffering and personal deprivation with money. However, this is what the Act enjoins upon the courts to do. The court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by the victim. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The court while assessing the compensation should have regard to the degree of derivation and the loss caused by such deprivation. Such compensation is what is termed as just compensation. The compensation or damages assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by the injured throughout his/her life. They should not be just taken damages."
22. In Kajal, references were made to passages from the following decisions:
In Phillips v. Western Railway Co. [(1874) 4 QBD
406)], Field.J., while emphasizing that damages must be full and adequate, held thus:
"You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered."
Besides, the Tribunals should always remember that the measures of damages in all these cases "should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure".
And 16 MACA No.147 of 2014 and Cross Objection No.9 of 2015 In Ward v. James [(1965) 1 All ER 563)], where Lord Denning speaking for the Court of Appeal laid down the following three basic principles to be followed in such like cases:
"Firstly, accessibility: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good".
23. In R.D Hattangadi vs. M/s Pest Control (India) Pvt. Ltd [(1995)1 SCC 551] the Honourable Supreme Court expressed thus:
"12. In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards."
24. Again in K.Suresh vs. New India Assurance Co. Ltd [(2012) 12 SCC 274] the Honourable Supreme Court held as follows:
"2. Despite many a pronouncement in the field, it still remains a challenging situation warranting sensitive as well as dispassionate exercise how to determine the incalculable sum in calculable terms of money in cases of personal injuries. In such assessment neither sentiments nor emotions have any role. It has been stated in Davies v. Powell Duffryn Associated Collieries Ltd that it is a matter of pounds, 17 MACA No.147 of 2014 and Cross Objection No.9 of 2015 shillings and pence. There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiallity lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity 'the Act') stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."
25. In this regard, I would refer with profit the decision in Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)] where the Honourable Supreme Court has declared the heads under which the compensation is to be awarded for personal injuries and how assessment of loss of earning capacity, due to permanent disability, is made:
"5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of 18 MACA No.147 of 2014 and Cross Objection No.9 of 2015 injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to permanent disability
6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human- being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in S.2(i) of the Disabilities Act are the result of injuries 19 MACA No.147 of 2014 and Cross Objection No.9 of 2015 sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation"
26. The Tribunal relied on the decision in U.P.State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362] and fixed the notional annual income of Dilna at Rs.75,000/-, assessed her permanent disability at 75%, applied the multiplier of '18' and awarded her an amount of Rs.10,12,500/- towards loss of earning capacity.
27. The first endeavour of this Court is to consider whether the compensation awarded by the Tribunal under the head 'loss of earning capacity' is reasonable and just.
28. In Nagappa v. Gurudayal Singh [(2003) 2 SCC 274], the Honourable Supreme Court has held that if a collection of cases on the quantum of damages is to be useful; it must necessarily be classified in such a way that comparable cases can be grouped together. No doubt, no two cases are alike but still, it is possible to make a broad classification which enables one to bring comparable awards together.20
MACA No.147 of 2014 and Cross Objection No.9 of 2015
29. Dilna was aged 9 years on the date of the accident, which took place on 14.1.2006 and Kajal was aged 12 years on the date of accident, which took place on 18.10.2007. Both Dilna and Kajal are paraplegic due to the accidents.
30. The next step is to judge whether the functional disability of Dilna can be weighed on the same scales as that of Kajal.
31. PW-2 (the Doctor), who proved Ext A16 disability certificate, has testified that Dilna would be bedridden for the rest of her life. The Medical Board in Exhibit X1 disability certificate has certified that Dilna is a traumatic paraplegic and is permanently disabled to the extent of 75% to the whole body as per the Mc Brides scale.
32. It is well settled in Raj Kumar that, what needs to be looked at in an injury claim is the functional disability of the injured-claimant.
33. The injuries or rather the unfurling of the miseries of Dilna in Exhibit A2, read with Exhibits A16 and X1 disability certificates, leads this Court to the only conclusion that Dilna 21 MACA No.147 of 2014 and Cross Objection No.9 of 2015 is 100% functionally disabled as she is paraplegic from her chest downwards.
34. In the light of the above conclusion and the identical factual matrix in the cases of Dilna and Kajal, this Court is of the firm view that Dilna in entitled to the same compensation as awarded in Kajal for 'loss of earning capacity' i.e., by fixing the monthly income of Dilna on notional basis at Rs.4,846/-, awarding her 40% future prospects and adopting the multiplier of 18, and in doing so, awarding her an amount of Rs.14,66,000/- under the above head.
35. It is settled, determination of compensation depends on several imponderables and in the assessment of those imponderables, there is likely to be a margin of error. Medical Expenses
36. There is no dispute with regard to the actual expenditure incurred by Dilna for her treatment and the amount awarded by the Tribunal in this regard, on the basis of materials on record. Thus, I confirm the reimbursement of Rs.2,10,000/- awarded towards medical expenses as per Exhibits A-3; Rs.548/- awarded for cost of urethral catheter 22 MACA No.147 of 2014 and Cross Objection No.9 of 2015 based on Exhibit A-4; Rs.31,000/- awarded for Doctors fee as per Exhibit A-5; Rs.4,200/- awarded for cost of water bed based on Exhibit A-6; Rs.880/- for physiotherapy charges on the strength of Exhibit-8 and Rs.2,324/- awarded for ambulance expenses based on Exhibit A-11, totalling to an amount of Rs.2,48,952/-.
37. Now, coming to the other disputed heads of compensation awarded by the Tribunal.
Bystander expenses
38. The Tribunal has awarded an amount of Rs.18,200/- towards 'bystander expenses', i.e.Rs.200/- per day for a period of 94 days, while Dilna was hospitalised.
39. On a consideration that the accident had happened on 14.1.2006, this Court finds the amount of Rs.200/- awarded per day for a period of 94 days towards 'bystander expenses' is reasonable, but it works out to Rs.18,800/- and not Rs.18,200/-. Therefore, I award an amount of Rs.18,800/- under the above head.23
MACA No.147 of 2014 and Cross Objection No.9 of 2015 Extra nourishment
40. The Tribunal has awarded an amount of Rs.1,00,000/- towards 'extra nourishment', as against a claim of Rs.4,00,000/-.
41. On a moderate estimation, this Court finds the amount to be on the higher side, especially since Dilna was treated as an inpatient only for a period of 94 days and the Tribunal has already awarded compensation for 'loss of earning capacity'. Therefore, I scale down the compensation under the said above head to the period of hospitalisation. Accordingly, I award Dilna an amount of Rs.200/- per day for a period of 94 days under the above head, which works out to Rs.18,800/-.
Future attendant charges
42. The learned counsel appearing for Dilna argued that, in Kajal, the Honourable Supreme Court has awarded bystander expenses @ Rs.10,000/- for two attendants i.e., Rs.1,20,000/- per annum for a period of 18 years. Therefore, the same formula may be followed in the instant case. The submission was vehemently opposed by the learned Senior 24 MACA No.147 of 2014 and Cross Objection No.9 of 2015 Counsel for the insurer stating that the victim's expectation is tall and she cannot make a windfall from the accident.
43. It is correct that in Kajal the Supreme Court adopted the multiplier method while awarding future attendant charges. However, in Lalan D @ Lal and another v. Oriental Insurance Company Limited [2020 SCC Online SC 751] the Honourable Supreme Court, relying on its earlier decision in Parminder Singh v. New Indian Assurance Co.Ltd., [(2019) 7 SCC 217] and also after referring to Kajal, awarded a consolidated sum of Rs.7,00,000/-, for a 34 year old man lying in a comatose state, for attendant charges and future medical treatment.
44. Subsequently, in HDFC ERGO General Insurance Co.Ltd v. Mukesh Kumar and others [2021 SCC Online SC 859], after referring to Kajal and a catena of decisions, the Supreme Court held thus:-
"26. The aforesaid only shows that there is more than one option available i.e., there may be a lump sum amount specified on general principles as enunciated aforesaid; or in cases where the factual scenario requires, same multiplier method can be followed as in the case of Kajal (supra).
27. Now turning to the facts of the present case, the child was 11 years of age when he suffered functional disability which has 25 MACA No.147 of 2014 and Cross Objection No.9 of 2015 been assessed at 70% by the medical board and the tribunal, and which the High Court determined as 100% functional disability. It is in these circumstances that the direction has been passed for attendants with a methodology of accessing the minimum wages payable for two skilled workers. In the given factual scenario, we are of the view that the apposite course to follow is set out in Kajal's case (supra)".
45. Recently, in Jithendran v. New India Assurance Co.Ltd. and another [2021 SCC Online SC 983] while considering a case of 21 year old man who suffered 100% functional disability in an accident on 13.04.2001, the Honourable Supreme Court again followed the principles in Kajal and held thus:
"13. As earlier noted, the appellant has suffered 69% permanent disability and without assistance, cannot perform everyday functions. The claimant with seriously impaired cognitive and physical capabilities would surely need full time assistance even for the confined life that he is leading. In such circumstances, the disabled claimant cannot be expected to rely only upon gratuitous services of his well-wishers and family members. Importantly, the presiding judge in the Tribunal himself noticed that the claimant would require the assistance of a bystander/attendant for all his movements. Consequently, bearing in mind the need for assisted living and what was said in Kajal v. Jagdish Chand, it is found necessary to add the expenses for service of an attendant for the claimant. Since no material is produced to quantify the expenses for the attendant, making a conservative estimate, Rs.5,000/- per month appears to be the bare minimum. It is therefore deemed appropriate to quantify the annual expenses at Rs.60,000/- and applying the multiplier of 18, the additional compensation payable under the bystander head is quantified at Rs.10,80,000/-.
14. The appellant has produced adequate medical documents before the High Court to show the recurring needs for testing, treatment and further hospitalisation for which, considerable expenses were incurred even after the initial 191 days 26 MACA No.147 of 2014 and Cross Objection No.9 of 2015 of hospitalization. As a person suffering severe cognitive impairment and 69% disability, recurring medical treatment is inevitable and bearing in mind the additional expenses already incurred, we deem it appropriate to enhance the future medical expenses to Rs.3,00,000/- (from Rs.1,00,000/-), since the sum quantified by the High Court appears to be on the lower side."
46. On a consideration of the standards followed in Kajal, Mukesh Kumar and Jithendran, this Court is of definite view that Dilna falls within the same category as that of the victims in the above cases. Therefore, I do not find any reason to take a contrary view than in the above cited cases. Nonetheless, as observed in the award, since Dilna had appreciably passed her 10 standard with distinction and can communicate well, it is th proved that her mental faculties are good. Therefore, I hold that she requires the assistance of only one attender, which would mitigate most of her difficulties for the rest of her life. Accordingly, I award her an amount of Rs.5,000/- per month for eighteen years, which works to Rs.10,80,000/-. However, the said amount shall not carry interest and cost. Future Medical Treatment
47. Even though Dilna had not specifically claimed any amount for future treatment, the Tribunal has awarded an amount of Rs.72,000/- towards future transportation expenses, 27 MACA No.147 of 2014 and Cross Objection No.9 of 2015 Rs.38,000/- towards Physiotherapist charges and Rs.48,000/- towards future medical and sanitary expenses, totalling to an amount of Rs.1,58,000/-.
48. Dilna has filed I.A.Nos.3810/2017, 1/2019, 2/2019 and 3/2019 in the C.O.No.9/2015, to accept the medical bills, to prove the expenses incurred by her subsequent to the passing of the award. As per the bills produced with the above applications, she has spent an amount of Rs.3970/-, Rs.8912/-, Rs.17014/- and Rs.26,208/-, respectively, totalling to an amount Rs.56,104/-. Therefore, the amount of Rs.1,58,000/- awarded by the Tribunal for future treatment is on the higher side. Hence, by a moderate estimate, I award Dilna an amount of Rs.1,50,000/- towards future medical treatment. However, the said amount will not carry interest and cost. Non Pecuniary heads.
Loss of amenities
49. As against a claim for Rs.20,00,000/- under the head 'loss of amenities', the Tribunal has awarded an amount of Rs.4,00,000/-.
28MACA No.147 of 2014 and Cross Objection No.9 of 2015
50. In Raj Kumar, it is explicitly held that once compensation is awarded for loss of future earning capacity @ 100% or even anything more than more than 50%, the need to award compensation separately under the head 'loss of amenities' or 'loss of expectation of life' may disappear. Hence, I set aside the amount of Rs.4,00,000/- awarded under the said head.
Loss of future prospects
51. The Tribunal has awarded an amount of Rs.30,000/- under the heading 'loss of future prospects'. As this Court has awarded future prospects at 40% on the notional income, following the parameters laid down in Kajal, I set aside the amount awarded under the said head.
Future transportation expenses and future drivers expenses
52. The Tribunal has awarded an amount of Rs.72,000/- towards future transportation expenses, Rs.38,000/- towards Physiotherapist charges and Rs.48,000/- towards future medical and sanitary expenses, totalling to an amount of Rs.1,58,000/-.
29MACA No.147 of 2014 and Cross Objection No.9 of 2015
53. As this Court has already awarded an amount of Rs.1,50,000/- towards future medical treatment, I set aside the amounts awarded under the above heads.
Pain and sufferings.
54. The Tribunal has awarded an amount of Rs.5,00,000/- under the head 'pain and sufferings' as against a claim of Rs.10,00,000/-.
55. On a consideration of the fact that Dilna has suffered serious injuries, that she was treated as an inpatient for a period of 96 days in three hospitals, that she is paralysed from her chest downwards; that she has no control over bladder and bowel; that she is perpetually on catheter or diapers; that she is prone to urinary infection; that she had to undergo skin grafting, plastic surgery and physiotherapy and sleeps on a water bed, I am of the firm view that the amount awarded by the Tribunal is reasonable and just.
56. On a comprehensive re-appreciation of the pleadings, materials on record and the precedents discussed above, I hold that Dilna is entitled to enhancement of compensation as 30 MACA No.147 of 2014 and Cross Objection No.9 of 2015 modified and recalculated above and given in the table below for easy reference.
SI Head of claim Amount awarded by Amount modified and
No the Tribunal (in recalculated by this
rupees) Court (in rupees)
1 Pain and suffering 5,00,000/- 5,00,000/-
2 Loss of amenities 4,00,000/- Nil
3 Bystander expenses 18,200/- 18,800/-
4 Ambulance expenses 2,324/- 2,324/-
5 Transportation 30,000/- Nil
charges
6 Extra nourishment 1,00,000/- 18,800/-
7 Damage to clothing 500/- 500/-
8 Medical bills and 2,48,952/- 2,48,952/-
medical expenses
9 Future attendant 30,000/- 10,80,000/-
charges
10 Future medical 1,58,000/- 1,50,000/-
expenses
11 Cost of water bed 4,200/- Nil
12 Physiotherapy charges 880/- Nil
13 Loss of future 30,000/- Nil
prospects
14 Expenditure for 30,000/-
attendance
15 Future drivers and fuel 72,000/- Nil
charges
16 Physiotherapist fee for 38,000/- Nil
one year
17 Medical and sanitary 48,000/- Nil
expenses
18 Loss of earning 10,12,500/- 14,66,000/-
capacity
Total 25,26,150/- 34,85,376/-
31
MACA No.147 of 2014
and
Cross Objection No.9 of 2015
57. Before parting, I reminiscence the observation made in Jithendran which reads thus:
"26. xxx xxx xxx The very fact that a healthy person turns into an invalid, being deprived of normal companionship, and incapable of leading a productive life, makes one suffer the loss of self- dignity. Such a Claimant must not be viewed as a modern day Oliver Twist, having to make entreaties as the boy in the orphanage in Charles Dickens's classic, "Please Sir, I want some more". The efforts must be to substantially ameliorate the misery of the claimant and recognize his actual needs by accounting for the ground realities. The measures should however be in correct proportion. xxx xxx"
58. Although this Court is fully conscious that the depth of Dilna's scars, wounds and pain is incalculable in terms of money, with the faintest of hopes that the compensation awarded within the framework of the Act would be of some solace to a person who has lost everything that makes life worthwhile, I conclude.
In the result:
i. MACA 147/2014 is dismissed; ii. In supercession of the impugned award, the Cross
Objection 9/2015 is allowed, by ordering that Dilna is entitled to a total compensation of Rs.34,85,376/- instead of Rs.25,26,150/- awarded by the Tribunal. Nevertheless, 32 MACA No.147 of 2014 and Cross Objection No.9 of 2015 only an amount of Rs.22,55,376/- will carry interest at the rate of 6% per annum from the date of petition till the date of realisation (i.e.,after deducting the amount of Rs.10,80,000/- + Rs.1,50,000/- awarded towards future attendant charges and future medical treatment) with proportionate cost;
iii. The appellant/third respondent/insurer is ordered to deposit the amount ordered above with interest and proportionate cost before the Tribunal, within a period of sixty days from the date of receipt of a certified copy of the judgment. Needless to mention that, if the appellant has already deposited 50% of the award amount as directed by this Court, the same shall be given credit to by the Tribunal;
iv. On the appellant depositing the balance amount, the Tribunal shall transfer Rs.5,00,000/- (Rupees Five Lakh only) to the savings bank account of Dilna and the remaining amount shall be deposited in fixed deposit(s) in a Scheduled Bank/Financial Institution in the name of Dilna, with standing instructions to the Bank to credit the 33 MACA No.147 of 2014 and Cross Objection No.9 of 2015 accrued interest on the fixed deposit to the savings bank account of Dilna on quarterly basis, to defray her expenses, (i.e., considering the fact that Dilna was permitted to withdraw 50% of the amount deposited by the insurer, as ordered by this Court);
v. The jurisdictional District Probation Officer is directed to visit Dilna once in every six months and file progress reports regarding her health and welfare before the Tribunal. The first visit shall be conducted within one month from the date of receipt of a copy of this judgment; vi. The District Probation Officer shall recommend rehabilitation measures for Dilna, including imparting vocational courses through a competent educational institution.
vii. In case Dilna has any financial requirement, she would be at liberty to contact the District Probation Officer and state her need, who in turn shall file a report before the Tribunal, and the Tribunal shall consider such report and pass appropriate orders on it by directing the Bank to 34 MACA No.147 of 2014 and Cross Objection No.9 of 2015 credit the requisite amount to the savings bank account of Dilna.
viii. The Tribunal shall send a compliance report every year, until further orders.
ix. The Registry is directed to forward a copy of this judgment to the Director, Social Justice Department, Thiruvananthapuram, for compliance.
x. Post for compliance report on 28.02.2023.
sd/-
sks/22.2.2022 C.S.DIAS, JUDGE