Kerala High Court
Deepa Cyrus vs The Divisional Manager on 30 October, 2024
2024:KER:80596
MACA 1577/2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
MACA NO. 1577 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 20.11.2020 IN OPMV NO.1 OF
2014 OF III ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,
THIRUVANANTHAPURAM
APPELLANT/APPLICANT:
DEEPA CYRUS
AGED 49 YEARS
W/O.VIJAY WILLS, T.C.11/1230, THRIVENI,
NANTHENCODE, KOWDIAR P.O., THIRUVANANTHAPURAM -
695 003.
BY ADVS.
R.T.PRADEEP
M.BINDUDAS
K.C.HARISH
RESPONDENT/3RD RESPONDENT:
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO.LTD., ROHINI BUILDING,
THAKARAPARAMBU ROAD, PAZHAVANGADI,
THIRUVANANTHAPURAM - 695 023, (ISSUING OFFICE -
PULIMATH BUILDING, P.B.NO.17, POST OFFICE
JUNCTION, PUNALUR - 691 305.
BY ADV A.R.GEORGE, SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 01.10.2024, THE COURT ON 30.10.2024 DELIVERED THE FOLLOWING:
2024:KER:80596
MACA 1577/2021
2
JUDGMENT
The claimant in OP(MV) No.1/2014 on the files of the Additional Motor Accidents Claims Tribunal-III, Thiruvananthapuram has come up in this appeal dissatisfied with the quantum of compensation awarded by the Tribunal.
2. The facts, in brief, are as follows:
The claimant was travelling in a KSRTC Bus along Punalur-
Chadayamangalam MC Road on 15.7.2013 and at about 9.40 a.m. when the bus reached near Sreerangam Curve, a private bus dashed against the KSRTC bus and under the impact, the claimant sustained injuries.
She was taken to the hospital and underwent treatment. The insurance company on receipt of the summons appeared and denied the material averments in the petition. Primarily, it was contended that there was no negligence on the part of the driver of the offending vehicle. On behalf of the claimant, Exts.A1 to A13 were marked and the claimant was examined as PW1. The claimant contended that she was working as the Manager in M/s.Federal Bank Ltd. and was earning a monthly income of Rs.52,047/-. It was also contended that as per Ext.A7 Standing Disability Assessment Board Certificate from Government Hospital, Thiruvananthapuram, the claimant had suffered 80% permanent 2024:KER:80596 MACA 1577/2021 3 disability and her right leg above the knee had to be amputated. Hence, the claimant contended that the functional disability has to be assessed at 100%, instead of 80% assessed by the Board. Insofar as the claim for compensation for permanent disability is concerned, the Tribunal concluded that the claimant/appellant has not suffered any loss of earnings due to the accident because she continued to work as the Manager of the Federal Bank and therefore, fixed a notional income at Rs.12,000/- and calculated the disability post-retirement. Still further, the claimant had also claimed an amount of Rs.11,93,000/- towards the medical expenses. However, the same was rejected on the ground that she had received compensation from the employer, namely M/s.Federal Bank Ltd. Though the claimant had sought for compensation towards the cost of replacement of the prosthesis leg, the same was not granted in full. Considering the facts and circumstances, the Tribunal awarded the following compensation:
Sl. Head of claim Amount Amount Basic vital details in No. claimed awarded a nut shell (Rs.) (Rs.) 1 Loss of earning 7,20,000/- 2,65,439/- 52047x153 days 2 Transportation expenses 10,000/- 5,000/- 3 Extra nourishment 10,000/- 7,750/- 250x 31 days 4 Damage to clothing 20,000/- 1,000/- 5 Medical expenses 20,00,000/- 21,000/- Ext.A4 series medical bills 6 Bystander's expenses 25,000/- 7,750/- 250 x 31 days 7 Pain and sufferings 5,00,000/- 4,00,000/-
2024:KER:80596 MACA 1577/2021 4 8 Loss of Amenities and 20,00,000/- 5,00,000/-
enjoyment in life 9 Permanent disability 1,00,000/- 14,97,600/- 9,000x12x9x80/100 10 Future treatment expenses 10,00,000/- 5,00,000/- 11 Disfigurement and loss of -- 2,00,000/-
expectation of life
Total 34,05,539/- Rs.34,06,000/- with
(Rounded to 8% interest per
34,06,000/-) annum from
01.01.14 till
realisation
3. Heard Sri.R.T.Pradeep, the learned counsel appearing for the appellant/claimant and Sri.A.R.George, learned counsel appearing for the insurance company.
4. The learned counsel appearing for the appellant Sri.R.T.Pradeep raised the following submissions:
(i) The disability as assessed by the Medical Board has been fixed at 80%. However, the Tribunal ought to have taken 100% permanent disability, especially since the appellant was not able to do her daily requirements without the help of a bystander.
(ii) The appellant is aged 43 years and she has suffered because of the injuries. The multiplier to be adopted in such circumstances ought to have been 14, instead of 13 as applied by the tribunal.
2024:KER:80596 MACA 1577/2021 5
(iii) The appellant/claimant is entitled to compensation for replacing the prosthesis leg and also future treatment since the prosthesis leg requires to be replaced every five years.
(iv) The tribunal has not awarded any future prospects and she is entitled to 30% future prospects.
5. On the other hand, Sri.A.R.George, the learned counsel appearing for the insurance company vehemently opposed the plea of the appellant on various grounds. The learned counsel pointed out that the appellant had continued her job and there was no loss of earnings. Moreover, the appellant was also entitled to pension and thus, the tribunal had correctly calculated the compensation towards the personal disability. He relied on the judgment of the Hon'ble Supreme Court in Raj Kumar v. Ajay Kumar [2011 (1) KLT 620 (SC)] to contend that merely because the Medical Board has assessed the disability at 80%, it is not absolutely necessary that the Tribunal should apply the percentage of disability. He further pointed out that the income taken by the Tribunal at Rs.12,000/- is without any basis. Though no appeal has been preferred by the Insurance Company, the learned counsel relied on the provisions of Order 41 Rule 33 of the Code of Civil Procedure to contend that the amount fixed as notional income 2024:KER:80596 MACA 1577/2021 6 is liable to be reduced. It is further submitted by the learned counsel that there was no change in the artificial limb. He also relied on the decision of a Division Bench of this Court in Kumaran and others v. Roy Mathew and others (2017 (1) KHC 594) and in The United India Insurance Co Ltd v. Preetha Krishnan [MACA 210 of 2015 decided on 28-6-2024] and submitted that in such cases the split multiplier has to be necessarily applied and the Tribunal has thus rightly applied the split multiplier.
6. In reply, the learned counsel for the appellant Sri.R.T.Pradeep would point out with reference to Ext.A13 that the medical reimbursement granted by the employer, namely the Federal Bank Ltd., was subject to condition that the amount so paid is liable to be repaid on receipt of the compensation from the tribunal.
7. I have considered the rival submissions raised across the bar.
8. Based on the rival submissions, this Court feels that it is necessary to give its findings on the following points:
(1) Whether the Tribunal was justified in applying the principle of split multiplier while calculating the disability compensation?.
2024:KER:80596 MACA 1577/2021 7 (2) Whether the claimant is entitled to any compensation towards the cost of replacement of the prosthesis leg. (3) Whether the functional disability of the appellant is required to be fixed at 100% from 80%.
(4) Whether the appellant is entitled to future prospects. (5) Whether the Tribunal was justified in not awarding any amount towards the medical treatment in view of Ext.A13 letter.
9. In order to sustain her claim for 100% functional disability, the appellant relies on Ext.A7 certificate of disability issued by the Standing Disability Assessment Board, General Hospital, Thiruvananthapuram. A perusal of Ext.A7 would show that the appellant had to undergo amputation of the right leg above the knee and 80% has been fixed as permanent disability. It is thus clear that the appellant had suffered permanent disability. Therefore the entitlement of appellant-claimant to claim compensation for the disability is beyond doubt. It must be noted that the appellant was working as the Manager of Federal Bank during the time of the accident. Ext.A5 salary certificate dated 15.1.2014 shows that the appellant was drawing a salary Rs.52,047/- After deducting income tax, the salary of the appellant 2024:KER:80596 MACA 1577/2021 8 comes to Rs.50,047/-. The Tribunal, while answering the claim for compensation, found that there was no loss of income from service. However, it was ordered that a different conclusion has to be arrived, since the injury will affect her day-to-day affairs and also will affect in availing any other avocation after retirement and hence required to be compensated. In support of its findings, the Tribunal relied on the judgment of the Hon'ble Supreme Court in Dinesh Singh v. Bajaj Allianze General Insurance Company Ltd. [2014 ACJ 1412] and calculated the compensation as follows:
12,000x12x13x80/100 = Rs.14,97,600/-
10. The learned counsel appearing for the appellant, Sri.R.T.Pradeep, took exception to the findings of the Tribunal. The learned counsel further pointed out that as per the evidence given by the claimant, she is now using a wooden leg and because of the artificial limb she is facing serious difficulties to squat and sit normally. She had deposed in her cross-examination categorically that due to the injuries, she is unable to do her avocations normally. With specific reference to the affidavit in view of the chief examination, the learned counsel for the appellant pointed out that because of the accident, the appellant is not able to do any household work and also unable to attend to her father 2024:KER:80596 MACA 1577/2021 9 and mother. She is spending nearly Rs.20,000/- per month for a bystander. However, these aspects have not been seriously controverted by the insurance company even while she was cross-examined, nor by producing any independent evidence. Therefore, the learned counsel pointed out that the Tribunal ought not to have fixed the disability compensation as done in the present case.
11. Having discussed the evidence of PW1, this Court must notice that there is a categorical statement regarding the inability to do the day-to-day work and in the absence of any contra evidence to discredit the evidence or statement of PW1 either in the cross- examination or through an independent evidence, this Court has no hesitation to hold that the appellant had suffered serious injury and that affected her normal functioning. In such circumstances, the question before this Court would be as to how the Tribunal should have awarded the compensation for the permanent disability. A perusal of the award impugned in the appeal would show that the Tribunal had applied the split multiplier. The question of application of split multiplier has been deprecated by the Hon'ble Supreme Court in R.Valli and Others Vs Tamil Nadu Road Transport Corporation Ltd. (2022 (5) SCC 2024:KER:80596 MACA 1577/2021 10
107) followed by this Court in Kamala v. Bajaj Alliance General Insurance Company Ltd. [2024 KLT Online 2118].
12. The reading of the award impugned shows that the tribunal not only applied the split multiplier but also fixed notional income when the appellant-claimant had proved beyond doubt that she was earning a salary of Rs.52,047/- while working as the Manager in the Federal Bank. The question therefore, would be whether the Tribunal should have taken the amount of Rs.52047/- less (-) Rs.2000/- payable towards income tax or it should have fixed a notional income. The question is however no longer res integra in the light of the judgment of the Supreme Court in Dinesh Singh (supra). The Apex Court in unequivocal terms held that in a case of permanent disability, the claimant is entitled to be compensated for the injury suffered by him/her irrespective as to whether he/she was employed. Para 10 of the judgment reads as under:
"10-We have considered the material placed before us, particularly the evidence of the Doctor, who stated that the appellant suffered 60% disability of the total body, and in his cross - examination denied the suggestion that the appellant does not require any further treatment. The fact that the appellant has resigned as Quality Engineer from Hospet Steels Ltd and took up desk job in Industrial Development Bank of India 2024:KER:80596 MACA 1577/2021 11 because of his permanent disability, suffered by him in the accident is not in dispute. Obviously, because of the permanent disability suffered by the appellant, who is an Engineer by profession, cannot take up such profession, which requires moving from one place to other place. Therefore, the reasoning of the High Court that the appellant has not suffered any financial loss because of permanent disability having regard to the fact that subsequently he took up employment in Industrial Development Bank of India as Grade - B Officer, cannot be sustained. Once the permanent disability is fixed, taking into consideration, its impact on the employment / profession of the claimant, the compensation has to be awarded. Since the disability suffered by the appellant, which is fixed at 60% and which is permanent in nature, impacted his employment and future prospects, we are of the considered opinion that the Tribunal has rightly determined the compensation Rs. 12,840/- x 12 x 17 = Rs. 26,19,360/-towards loss of future earnings, and taking into consideration the 60%permanent disability suffered by the appellant, awarded him the actual compensation under the head 'loss of future earnings' at Rs. 15,71,616/- by rounding off the same to Rs. 15,72,000/-."
13. In Robin Babu v. Kunjappan & Others [2015(4) KHC 91] a Division Bench of this Court applied the above principles and granted compensation for the claimant despite him being employed in the Excise Department of State of Kerala.
2024:KER:80596 MACA 1577/2021 12
14. Pertiently, without noticing the above binding principles, this Court had proceeded to hold in several appeals that in the absence of any loss of earning for claimants who were gainfully employed and continued their work despite the disability caused due to the accident are entitled to compensation for disability only after their retirement.
15. In Akhilesh Chandran v. Sabu Varghese & Others [2024 KLT Online 2499] this Court was called upon to reconcile the conflict of precedents . Applying the principles in Dinesh Singh (Supra) and Robin Babu (Supra) this Court resolved the conflict and held that the decision of the Three Judge Bench of the Supreme Court will prevail over all other decisions and thus applied the aforesaid principles and granted the compensation.
16. Facts and law presented before this Court in this appeal is similar to one in Dinesh Singh (supra) and Robin Babu (supra). It is true that Hon'ble Apex Court had fixed the notional income despite the fact that the appellant was working as the Manager of a Bank which was the subsequent vocation pursued by him after the accident. Applying the principles in Dinesh Singh (supra), a Division Bench of this Court had in Robin Babu (supra) had taken the income of the claimant while he was working as an Excise Inspector and calculated the 2024:KER:80596 MACA 1577/2021 13 same for the purpose of computing the compensation towards the personal disability. In Akhilesh Chandran (supra), this Court was called upon to decide whether the claimant therein working as a Manager in an Urban Co-operative Bank, who had suffered 14% disability, was entitled to have his entire income calculated for the purpose of computation of compensation towards continuing & permanent disability. Considering the nature and the percentage of disability, this Court applied the principle in Dinesh Singh (supra) and fixed the notional income at Rs.15,000/- in Akhilesh Chandran (supra).
17. Should this Court apply the same principle as in Akhilesh Chandran (supra), or a different approach is required? But it must be remembered that the appellant had to undergo amputation of her right leg above the knee. It must also be remembered that in Rajesh and others Vs Rajbir Singh and others [2013(3) KHC 212], the Three Judge Bench of the Hon'ble Supreme Court considered the salutary principles behind the grant of compensation under Section 166 of the Motor Vehicles Act, 1988. Para 7 of the Judgment reads as under:
"The expression 'just compensation' has been explained in Sarla Verma's case (supra), holding that the compensation awarded by a Tribunal 2024:KER:80596 MACA 1577/2021 14 does not become just compensation merely because the Tribunal considered it to be just. 'Just Compensation' is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. After surveying almost all the previous decisions, the Court almost standardised the norms for the assessment of damages in Motor Accident Claims."
Therefore, it is clear that the appellant is entitled for a just and fair compensation. What would be the "just and fair compensation" will have to be judged in the light of the evidence tendered by the appellant through oral and documentary evidence which remain unimpeached. In the light of the overwhelming evidence on record at the side of the appellant and in the absence of any evidence on the side of the insurance company, this Court is inclined to hold that the appellant's injury, being serious enough, has to be adequately compensated. What should be then the income of the appellant. At any rate, the order of the tribunal fixing it at Rs.9000/- is beyond one's comprehension.
18. In Karthik Subramanian Vs B.Sarath Babu and Another [2021 KHC 3213], the Hon'ble Supreme Court considered a similar issue. The appellant therein was earning Rs.37,500/- at some 2024:KER:80596 MACA 1577/2021 15 point of time and taking 50% of the above amount the Apex Court fixed the income at Rs.18,750/- for the purpose of calculating disability compensation.
19. In this case, there is clear cut evidence showing the salary earned by the appellant-claimant. The salary drawn by the claimant after deducting income tax comes to Rs.50,047.50. In the peculiar facts, this Court feels that since the appellant did not lose her job, it would be wholly impermissible to take the entire salary for calculating the disability compensation. In the considered view of this Court, it would be reasonable to take 50% out of the total income of the appellant- claimant for the purpose of calculating disability compensation and apply the multiplier as 14 and 30% future prospects has to be added and in which case, the income would be Rs.32,500/-(25,000+7500). The details of the compensation the appellant is entitled to are given in the table discussed below.
20. Coming to the second question as to whether the appellant is entitled to compensation towards the change of the prosthesis, this Court is of the considered view that nothing has been brought on record to discredit the evidence of the appellant that she had to fit in with a wooden leg consequent to the amputation. In Vivek G v. National 2024:KER:80596 MACA 1577/2021 16 Insurance Company Ltd. [2023 KHC 2941], the Hon'ble Apex Court had occasion to consider the question as to whether compensation could be awarded for the change of prosthesis. It is to be noted that the Hon'ble Apex Court upheld the findings of the Tribunal granting compensation of Rs.20,00,000/- being the cost required for replacement of the prosthesis at Rs.5,00,000/- each in every five years, and thus, awarded the compensation for four times. It is to be noted that the claimant before the Apex Court was aged only 16 years. But, the fact remains that the cost for change of prosthesis was upheld by the Apex Court. Considering the fact that the appellant herein was aged 43 years at the time of the accident, this Court deems it appropriate to grant the compensation for the change of prosthesis at least for two occasions since the tribunal had already awarded an amount of Rs.5,00,000/- towards future treatment expenses the appellant is entitled to a further amount of Rs.10,00,000/-.
21. The next question to be considered is whether the appellant is entitled to have the functional disability reckoned at 100%. In Rekha Jain Vs National Insurance Company Ltd. [(2013)8 SCC 389] the Apex Court laid down the guidelines for determining the functional disability qua the permanent disability assessed by the medical board.
2024:KER:80596 MACA 1577/2021 17
22. In determining the functional disability, the avocation of the claimant has to be given predominant importance qua the nature of disability suffered by her. It has come out in evidence that although the appellant had undergone amputation of the right leg above the knee, it had affected her job since she had to do the field job actively which is impaired due to the amputation of the right leg and further inconvenience caused to her by the usage of the artificial limb . But the fact remains that the claimant continued with her job. Thus the evidence presented before this Court, do not persuade this Court to grant 100% functional disability.
23. The next point raised is regarding the entitlement for future prospects. It must be remembered that there is no rule that in injury cases, the Tribunal shall not award future prospects. It has come out in evidence that the appellant had suffered serious injuries. Considering the fact that the age of the appellant is 43 years at the time of the accident, it is to be noted that the awarding of future prospects is not for the loss of earnings, but as compensation towards loss of earning future income due to the disability. In her evidence, the appellant had specifically stated that due to the disability, her future promotions are 2024:KER:80596 MACA 1577/2021 18 affected. Therefore, this Court is no hesitation to hold that the appellant is certainly entitled for future prospects also.
24. Insofar as the claim for medical treatment is concerned, Ext.A13 was taken into consideration for denying her claim. No doubt, in Ext.A13 letter dated 18.1.2014, the Bank had sanctioned an amount of Rs.11,45,003/- towards reimbursement of medical expenses. However, the same was on a condition that as and when the appellant received the claim pursuant to the award by the Motor Accidents Claims Tribunal, the amount has to be reimbursed. Therefore, this Court is of the definite view that the Tribunal could not have disallowed her claim for the medical expenses. However, the claim for medical expenses can be granted only on a proper verification by the Insurance Company with the employer of the appellant, namely Federal Bank, as to whether the appellant had reimbursed the bank the medical expenses received by her. If not, the insurance company can directly forward the amount of Rs.11,45,003/- to the Federal Bank towards the payment made by the bank and the balance alone needs to be released to her. However, on enquiry if it is found that the appellant has reimbursed the amount, then the insurance company should release the payment directly to the appellant.
2024:KER:80596 MACA 1577/2021 19
25. As an upshot of the findings as above, this Court finds that the appellant is entitled to succeed. The appellant is entitled to enhanced compensation as given below:
Sl. Particulars Compensation Additional
No. awarded by the amount granted
Tribunal (Rs.) by this Court
(Rs.)
1. Medical Expenses 21,000/- 11,93,000/-
2. Future treatment 5,00,000/- 10,00,000/-
expenses (5,00,000x2)
3. Permanent disability 14,97,600/- 28,70,400/-
(12,000x12x13x80 [(25,000+7500)
/100) x12x14x80/100
43,68,000 -
14,97,600]
Total amount enhanced by this Court 50,63,400
Thus, a total amount of Rs. 50,63,400/- (Rupees Fifty Thousand Sixty Three Thousand and Four Hundred Only) is awarded as enhanced compensation. The said amount shall carry interest at 8% per annum from the date of the application till the realisation. The appellant would also be entitled to proportionate costs in the case. The Insurance Company shall deposit the enhanced compensation together with interest and proportionate costs within a period of one month from the 2024:KER:80596 MACA 1577/2021 20 date of receipt of a copy of this judgment. The claimants shall furnish the details of the bank account to the insurance company for transfer of the amount.
Accordingly, the appeal is allowed.
Sd/-
EASWARAN S. JUDGE jg