Kerala High Court
The United India Insurance Co. Ltd vs Dhanesh on 9 March, 2020
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941
MACA.No.434 OF 2014(C)
AGAINST THE AWARD IN OPMV 738/2009 DATED 25-11-2013 OF ADDITIONAL
DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR
APPELLANT/S:
THE UNITED INDIA INSURANCE CO. LTD
ALUVA, REPRESENTED BY ITS DEPUTY MANAGER,REGIONAL
OFFICE, HOSPITAL ROAD, ERNAKULAM.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI
RESPONDENT/S:
DHANESH
S/O.AMBUJAKSHAN, 'ATHIRA'. MANNAM P.O.,PARAVUR
VILLAGE PIN - 683 513.
R1 BY ADV. SMT.ANUPAMA JOHNY
R1 BY ADV. SRI.GOPAKUMAR G. ALUVA
R1 BY ADV. SRI.REJI GEORGE
R1 BY ADV. SRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
09.03.2020, ALONG WITH CO.42/2014, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
MACA 434/2014 & C.O.No.42/2014
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941
CO.No.42 OF 2014 IN MACA. 434/2014
AGAINST THE ORDER/JUDGMENT IN MACA 434/2014(C) OF HIGH COURT OF
KERALA
PETITIONER/S:
DHANESH
AGED 29 YEARS
S/O.AMBUJAKSHAN, ATHIRA MANNAM P.O., PARAVOOR
VILLAGE.
BY ADVS.
SRI.REJI GEORGE
SMT.ANUPAMA JOHNY
SRI.GOPAKUMAR G. (ALUVA)
RESPONDENT/S:
UNITED INDIA INSURANCE CO. LTD.
BRANCH OFFICE, ALUVA, REPRESENTED BY ITS DEPUTY,
MANAGER, REGIONAL OFFICE, HOSPITAL ROAD, ERNAKULAM
- 682 018.
R1 BY ADV. SRI.GEORGE CHERIAN (SR.)
R1 BY ADV. SRI.GEORGE CHERIAN SR.
R1 BY ADV. SMT.K.S.SANTHI
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON
09.03.2020, ALONG WITH MACA.434/2014(C), THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
MACA No.434 of 2014 & CO No.42 of 2014
3
"CR"
JUDGMENT
The appellant is the 3rd respondent insurer in O.P(MV)No.738 of 2009 on the file of the Motor Accidents Claims Tribunal, North Paravur, a claim petition filed by the respondent herein under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 22.06.2009, while he was riding a motorcycle bearing registration No.KL-8/AP-3234. At the place of accident, the motorcycle was hit by a maruti omni van bearing registration No.KL-11/5551 driven by the 1 st respondent and owned by the 2 nd respondent before the Tribunal, and insured with the appellant herein. In the accident, the claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of maruti omni van by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.79,01,752/ under various heads, which was limited to Rs.50,00,000/- for the purpose of payment of Court Fee.
2. Before the Tribunal, the driver of the maruti van filed written statement admitting the accident; however denying the MACA No.434 of 2014 & CO No.42 of 2014 4 negligence alleged against him. He alleged negligence against the claimant, who was riding the motorcycle. The owner of the maruti van remained absent and he was set ex parte.
3. The 3rd respondent insurer filed written statement admitting insurance coverage of the maruti van involved in the accident; however, denying the negligence alleged against its driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive.
4. Before the Tribunal, Exts.A1 to A21 series were marked on the side of the claimant. The claimant was examined as PW1. In order to prove the employment of the claimant, PW2 was examined. On the side of the respondents, the insurance policy of the maruti van was marked as Ext.B1.
5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the maruti omni van by its driver. Since insurance coverage of the said vehicle was not in dispute, the appellant insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total MACA No.434 of 2014 & CO No.42 of 2014 5 compensation of Rs.43,64,960/- (which was rounded off to Rs.43,65,000/-), together with interest at the rate of 8% per annum (excluding Rs.3,00,000/- awarded towards future medical expenses and Rs.2,00,000/- awarded towards future bystander's expenses) from the date of petition, i.e. 09.12.2009, till realisation, with proportionate cost, and the appellant insurer was directed to satisfy the award.
6. The appellant insurer is before this Court in M.A.C.A. No.434 of 2014, contending that the compensation awarded by the Tribunal under various heads are on the higher side.
7. On receipt of notice in the appeal, the claimant filed Cross Objection No.42 of 2014, contending that the compensation awarded by the Tribunal under various heads are on the lower side, which requires enhancement.
8. On 12.02.2014, when M.A.C.A.No.434 of 2014 came up for admission, this Court admitted the matter on file and issued notice on admission to the respondent/claimant. In I.A. No.444 of 2014, this Court granted an interim order staying the execution of the award in O.P.(MV)No.738 of 2009, on condition that the appellant insurer deposits 50% of the award amount before the MACA No.434 of 2014 & CO No.42 of 2014 6 Tribunal.
9. Heard the learned Standing Counsel for the appellant insurer and also the learned counsel for the 1 st respondent/ claimant/cross objector in Cross Objection No.42 of 2014.
10. The issue that arises for consideration in this appeal and the cross objection is as to whether the compensation awarded by the Tribunal under various heads represents just and reasonable compensation.
11. In State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484] the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance.
MACA No.434 of 2014 & CO No.42 of 2014 7
12. In National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability.
13. In the instant case, the compensation awarded by the Tribunal under various heads reads thus;
Sl. Head of claim Amount Amount Basis/vital
No. claimed awarded details in a
(in Rs.) (in Rs.) nutshell
1 Damage to clothing 1000 1000
2 Transportation 24000 24000
expenses
3 Future transportation 200000 Nil
expenses
4 Medical expenses 1000000 567400 Ext.A21
series
MACA No.434 of 2014 & CO No.42 of 2014
8
5 Future medical 300000 300000
expenses
6 Bystander expenses 30000 8400 42 days IP
7 Past bystander Nil 200000
expenses
8 Future bystander 300000 200000
expenses
9 Extra nourishment 50000 40000
10 Loss of income for 6 120000 108000 18000 x 6
months
11 Pain and sufferings 300000 300000
12 Loss of amenities of 100000 300000
life, discomforts &
inconvenience
caused including loss
of marriage
prospects
13 Compensation for 500000 100000
disfiguration
14 Loss of marital 1000000 Nil
prospects
15 Loss of earning 3676752 2216160 57%
capacity
16 Compensation for
permanent disability
Total 79,01,752 43,64,960
claim limited rounded off
to 50,00,000 to
43,65,000
14. The accident occurred on 22.06.2009. At the time of accident, the claimant was aged 25 years. The document marked as Ext.A12 is the degree certificate dated 04.12.2008, as per which he secured B.Tech. in Civil Engineering with first class. He claimed a monthly income of Rs.20,000/- as Concrete Technologist in MACA No.434 of 2014 & CO No.42 of 2014 9 M/s.Polygel Technology Ltd., Bombay. As per Exts.A15 and A20 letter of appointment dated 16.03.2009, he was designated as Concrete Technologist, based at Cochin, as a member of the sales team, with a total salary of Rs.20,038/-. However, in Exts.A16 and A17 salary slips for the months April and May, 2009 his gross earning is shown as Rs.18,388/-, which includes Rs.9,350/- as consolidated pay, Rs.4,675/- as HRA and Rs.4,363/- as special allowances. Ext.A18 salary slips for the month June, 2009, in which his gross earning is shown as Rs.14,097/-, for 23 'paid days'. In the letter of appointment it is specified that, the claimant will be on probation for a period of six months. These documents were proved through PW2, who was an Executive of that Company. PW2 has deposed that the duty of a Concrete Technologist is supervision, at work sites, the mixing of chemicals in concrete mix. The Tribunal took the monthly income as Rs.18,000/-. When the gross earning of the claimant is shown as Rs.18,388/- in Exts.A16 and A17 salary slips, the said amount has to be taken as his monthly income, for the purpose of assessing compensation under various heads.
15. The document marked as Ext.A3 is the wound certificate issued from Amritha Institute of Medical Science, Ernakulam. MACA No.434 of 2014 & CO No.42 of 2014 10 Exts.A4 to A8 are discharge summaries and Ext.A9 is the medical certificate. As per medical records, in the accident, the claimant sustained Type 1 compound comminuted fracture middle 1/3 rd right femur; lacerated wounds right forearm and hand; dislocation of proximal interphalangeal joints of 2nd and 3rd toes right foot; comminuted fractures involving the right zygoma, zygomatic arch, right maxilla, medial and lateral right maxillary antral walls, right ramus of mandible, condylar process and nasal bones. He had undergone closed reduction and debridement of PIP dislocations; debridement and primary closure of right thigh and hand/forearm wounds under G.A. for fasciomax procedure; right nasal ala reconstruction with forehead flap plus gold weight for right eyelid under G.A.; scar revision and full thickness skin grafting under G.A.; bone grafting nasal dorsum and right tinfraorbital rim; debulking of forehead flap used in nasal ala reconstruction right side; scar excision and full thickness skin grafting right cheek; plate removal from right side nasal bone and zygomaticomaxillary buttress region; trimming of Ti mesh and bone on right side malar region; and Z plasty on right side previously reconstructed ala. The claimant had undergone inpatient treatment for a total period of 42 MACA No.434 of 2014 & CO No.42 of 2014 11 days. Ext.A21 series of medical bills are for a sum of Rs.5,67,400/-.
16. The document marked as Ext.X1 is the disability certificate issued by the Medical Board at the Government Medical College Hospital, Kottayam, in which the permanent disability of the claimant, on account of the injuries sustained in the accident, is assessed as 56.74%. Before the Tribunal, the claimant was examined as PW1. He was on crutches. PW1 has deposed that he cannot shut his right eye and control tears coming from the eye. He cannot fully open the mouth. He has disfiguration on the entire face. He is hard of hearing in his right ear. He has scars on the eyebrows. There is shortening of right leg. He has to wear specially made shoes to adjust the length. The document marked as Ext.A19 series is the photographs of the claimant and the CD. The Tribunal accepted the percentage of disability assessed in Ext.X1, which was rounded off to 57%, for the purpose of awarding compensation under various heads.
17. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], the Apex Court laid down the principles governing assessment of future loss of earning due to permanent disability. The Apex Court MACA No.434 of 2014 & CO No.42 of 2014 12 held that where the claimant suffers a permanent disability as a result of the injuries, the assessment of compensation under the head loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What requires to be assessed by the Tribunal is the effect of permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency).
18. In Raj Kumar, the Apex Court held that, if the Tribunal concludes that there is permanent disability as a result of the injuries, then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The MACA No.434 of 2014 & CO No.42 of 2014 13 Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood; or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on; or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. When compensation is awarded by treating the loss of future earning capacity as 100% (or even 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 or a token or nominal amount may have to be awarded under that head.
19. In the instant case, as borne out from medical records, the appellant sustained serious injuries, which had resulted in various disabilities. He has disfiguration on the entire face. He MACA No.434 of 2014 & CO No.42 of 2014 14 cannot fully open the mouth. The claimant, who was examined as PW1, has deposed that he cannot shut his right eye and control tears. He is hard of hearing in his right ear. Since the length of his right leg is shortened, he has to wear specially made shoes to adjust the length. Therefore, on account of the injuries sustained in the accident and the permanent disability arising therefrom, the claimant is suffering from various kinds of handicaps, which he has to suffer throughout his life. Considering the nature of disabilities, in the light of the law laid down by the Apex Court in Raj Kumar, this Court finds no reason to enhance 57% loss of earning capacity fixed by the Tribunal, for permanent disablement of the claimant, on account of the injuries sustained in the accident.
20. In Mekala v. Malathi M. [(2014) 11 SCC 178] the appellant/claimant before the Apex Court was a student of 11 th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon MACA No.434 of 2014 & CO No.42 of 2014 15 examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a monthly notional income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first MACA No.434 of 2014 & CO No.42 of 2014 16 rank in the 10th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551] and Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]. Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of Govind Yadav, which has reiterated the position of Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]. The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her MACA No.434 of 2014 & CO No.42 of 2014 17 marriage substantially. It has been held in the case of Reshma Kumari that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421].
21. In Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]. A reading of the said decision would show that the injured before the Apex Court were having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future MACA No.434 of 2014 & CO No.42 of 2014 18 earning capacity, and it was in such circumstances that the Apex Court granted them disability compensation by adding future prospects.
22. In the impugned award, though loss of future earning capacity is taken as 57%, the Tribunal did not add anything to the monthly income of the claimant towards future prospects. Considering the nature of injuries sustained and the permanent disability arising therefrom, the claimant can be treated as an injured having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity. Therefore, the claimant is entitled for grant of compensation under the head permanent disability, adding future prospects to his monthly income.
23. In Pranay Sethi [(2017) 16 SCC 680] the Constitution Bench held that, while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 MACA No.434 of 2014 & CO No.42 of 2014 19 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. The Apex Court held further that, in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
24. In the instant case, at the time of accident, the appellant was aged 25 years. He was working as Concrete Technologist in M/s.Polygel Technology India Ltd., Bombay with a gross earning of Rs.18,388/-. As per the letter of appointment, he was on probation for a period of six months. Therefore, the claimant cannot be treated as on permanent employment. He can only be treated on fixed salary. In view of the law laid down by the Apex Court in Mekala, Syed Sadiq and Pranay Sethi, an addition of 40% of the monthly income of the claimant taken by the Tribunal can be made towards future prospects, since he was below the age of 40 MACA No.434 of 2014 & CO No.42 of 2014 20 years.
25. Therefore, for the purpose of re-fixing the compensation under the head permanent disability, 40% of the monthly income of the claimant re-fixed in this appeal as Rs.18,388/-, i.e., a sum of Rs.7,355/- (18,388 x 40/100) has to be added towards future prospects. In the result, the monthly income of the claimant, for the purpose of re-fixing the compensation under the head permanent disability, is reckoned as Rs.25,743/- (18,388 + 7,355).
26. In Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], the Apex Court, after referring to its earlier decisions in Kerala State Road Transport Corporation v. Susamma Thomas [(1994) 2 SCC 176], U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362] and New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720] held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying Susamma Thomas, Trilok Chandra and Charlie], which starts with an operative multiplier of 18 [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of 17 for 26 to 30 years, MACA No.434 of 2014 & CO No.42 of 2014 21 multiplier of 16 for 31 to 35 years, multiplier of 15 for 36 to 40 years, multiplier of 14 for 41 to 45 years, and multiplier of 13 for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of 11 for 51 to 55 years, multiplier of 9 for 56 to 60 years, multiplier of 7 for 61 to 65 years and multiplier of 5 for 66 to 70 years.
27. In National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] a Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of Sarla Verma, read with paragraph 42 of the said judgment.
28. In the instant case, as on the date of accident, the claimant was aged 25 years. In the light of the decisions of the Apex Court in Sarla Verma's case and Pranay Sethi's case referred to supra, the multiplier of 18 applied by the Tribunal is correct and proper.
29. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.22,16,160/- (18,000 x 12 x 18 x MACA No.434 of 2014 & CO No.42 of 2014 22 57/100). In this appeal, the monthly income of the claimant has already been re-fixed as Rs.18,388/-. Adding 40% of the notional monthly income of the claimant towards future prospects (18,388 + 7,355 = 25,743); applying the multiplier of 18 applicable to the age group of the claimant and the percentage of loss of earning capacity as 56.74%, the compensation under the head permanent disability is re-fixed as Rs.31,69,478/- (25,743 x 12 x 18 x 57/100), resulting an additional compensation of Rs.9,53,318/- (31,69,478 - 22,16,160).
30. Towards loss of earning, the Tribunal awarded a sum of Rs.1,08,000/-, at the rate of Rs.18,000/- for a period of 6 months. Considering the nature of injuries sustained, the treatment the claimant had undergone and also the nature of disabilities, as borne out from medical records, the period of 6 months fixed by the Tribunal for loss of earning is re-fixed as 8 months. Since the monthly income of the claimant is re-fixed as Rs.18,388/-, the compensation under the head loss of earning is re-fixed as Rs.1,47,104/- (18,388 x 8), resulting an additional compensation of Rs.39,104/- (1,47,104 - 1,08,000).
31. On account of the injuries sustained in the accident, the MACA No.434 of 2014 & CO No.42 of 2014 23 claimant had undergone inpatient treatment for 42 days. The accident is of the year 2009. Towards transportation to hospital, the Tribunal awarded a sum of Rs.24,000/-. Considering the nature of injuries sustained and the treatment the claimant had undergone, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal.
32. Towards bystander expenses the Tribunal awarded a sum of Rs.8,400/- (200 x 42). Towards extra nourishment, the Tribunal awarded a further sum of Rs.40,000/-. The accident is of the year 2009 and the appellant had undergone inpatient treatment for 42 days. The compensation awarded by the Tribunal towards bystander expenses for 42 days of hospitalisation represents just and reasonable compensation, which requires no enhancement in this appeal. On account of the facial injuries and post traumatic residual facial deformity, the claimant cannot fully open the mouth, which is evident from Ext.A19 series of photographs and the CD. Therefore, the claimant requires special diet for a considerably long period. Considering the said fact, the compensation awarded by the Tribunal under the head extra nourishment is re-fixed as MACA No.434 of 2014 & CO No.42 of 2014 24 Rs.75,000/-, resulting an additional compensation of Rs.35,000/- (75,000 - 40,000).
33. Towards past bystander expenses, the Tribunal awarded a sum of Rs.2,00,000/-. A further sum of Rs.2,00,000/- was awarded towards future bystander expenses. The accident occurred on 22.06.2009. Before the Tribunal, the claimant was examined as PW1, on 11.09.2013, nearly 4 years and 3 months after the accident. He appeared before the Tribunal on creches. Though PW1 deposed that he had engaged a bystander, on a monthly salary of Rs.5,000/-, no materials were placed before the Tribunal in support of that claim. Considering the nature of injuries sustained by the claimant, the treatment he had undergone, and also the permanent disablement on account of those injuries, the compensation under the head past bystander expenses and future bystander expense is scaled down to a total sum of Rs.2,00,000/-, resulting an excess payment of Rs.2,00,000/- [(2,00,000 + 2,00,000) - 2,00,000], which has to be deducted from the additional compensation granted in this appeal.
34. Towards pain and suffering, the Tribunal awarded a sum of Rs.3,00,000/-.
MACA No.434 of 2014 & CO No.42 of 2014 25
35. In Govind Yadav v. New India Insurance Company Ltd. [(2011) 10 SCC 683], the Apex Court was dealing with the case of an unmarried person aged 24 years, who was working as helper. On account of the injuries sustained in the motor accident, his left leg was amputated above knee. Considering his age and also the fact that for the remaining life, he will suffer the trauma of not being able to do his normal work as helper, the Apex Court in order to meet the ends of justice, granted a sum of Rs.1,50,000/- in lieu of pain, suffering and trauma caused due to amputation of leg.
36. In the instant case, on 22.06.2009, the claimant sustained injuries at the age of 25. On 11.09.2013, nearly 4 years and 3 months after the accident, he appeared before the Tribunal on creches. On account of the injuries sustained in the accident, he had undergone maxillofacial surgery, fasciomax procedure, right nasal ala reconstruction, bone grafting, skin grafting, etc. as evident from Exts.A4 to A8 discharge summaries and also the oral testimony of PW1. He cannot fully open the mouth, which is evident from Ext.A19 series of photographs and the CD. He is having post traumatic residual facial deformity. PW1 has deposed that he MACA No.434 of 2014 & CO No.42 of 2014 26 cannot shut his right eye and control tears. He is hard of hearing in his right ear. The oral and documentary evidence placed on record would show that the claimant is experiencing severe pain and suffering, on account of the injuries sustained in the accident, which he has to suffer for the rest of his life. Considering the aforesaid aspects of the matter, this Court deem it appropriate to re-fix the compensation under pain and suffering as Rs.5,00,000/-, resulting an additional compensation of Rs.2,00,000/- (5,00,0000
- 3,00,000).
37. Towards loss of amenities of life, discomforts and inconvenience caused, including loss of marriage prospects, the Tribunal awarded a sum of Rs.3,00,000/-. The Tribunal awarded a further sum of Rs.1,00,000/- as compensation for disfiguration.
38. In Govind Yadav, the Apex Court was dealing with the case of an unmarried person aged 24 years, who was working as helper. On account of the injuries sustained in the motor accident, his left leg was amputated above knee. The loss of earning on account of the permanent disability was taken as 70%. Considering his age and also the fact that his marriage prospects have considerably reduced on account of amputation of left lower limb MACA No.434 of 2014 & CO No.42 of 2014 27 above knee, the Apex Court granted a sum of Rs.1,50,000/- under the head loss of amenities and enjoyment of life.
39. In the instant case, at the time of accident, the claimant was aged only 25 years. On account of the injuries sustained in the accident, he has disfiguration on the entire face, which is evident from Ext.A19 series of photographs and the CD. He is having post traumatic residual facial deformity. He cannot fully open the mouth. He cannot shut his right eye and control tears coming from the eye. There is shortening of right leg. He has to wear specially made shoes, in order to adjust the length. The claimant is a B.Tech. holder in Civil Engineering. For the remaining life, he will have to suffer the trauma of not being able to do his normal activates or work. There is loss of marriage prospects, on account of the disfiguration on the entire face, and other disabilities. His job prospects is also considerably reduced. Considering the aforesaid aspects of the matter, this Court deem it appropriate to re-fix the compensation under the head loss of amenities of life, discomforts and inconvenience caused, including loss of marriage prospects as Rs.5,00,000/-, resulting an additional compensation of Rs.2,00,000/- (5,00,000 - 3,00,000). Considering the post MACA No.434 of 2014 & CO No.42 of 2014 28 traumatic residual facial deformity and other deformities, the compensation under the head disfiguration is re-fixed as Rs.2,00,000/-, resulting an additional compensation of Rs.1,00,000/- (2,00,000 - 1,00,000).
40. Towards damage to clothing, the Tribunal awarded a sum of Rs.1,000/-. The accident is of the year 2009. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal.
41. Towards medical expenses, the Tribunal awarded a sum of Rs.5,67,400/-, covered by Ext.A21 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal.
42. Towards future medical expenses, the Tribunal awarded a sum of Rs.3,00,000/-.
43. Before the Tribunal, Ext.A9 medical certificate dated 05.08.2013 of the Professor and Head of Department, Head and Neck Surgery, Amritha Institute of Medical Sciences, Kochi was placed on record, as per which the claimant, who is having post MACA No.434 of 2014 & CO No.42 of 2014 29 traumatic residual facial deformity, on account of the injuries sustained in the motor accident, require multiple surgical procedure by plastic surgery and craniomaxillofacial department for correction of eyelid closure, nasal reconstruction, resurfacing of face and implant removal. In Ext.A9, it is certified that the approximate cost of those procedures comes to Rs.2,00,000/- to Rs.2,50,000-. As evident from Ext.A19 series of photographs and the CD, the claimant has disfiguration on the entire face. The post traumatic residual facial deformity and also the necessity for correction of eyelid closure, nasal reconstruction and resurfacing of face are evident from the said document. Considering the aforesaid aspects of the matter, Rs.3,00,000/- awarded by the Tribunal under the head future medical expenses represents just and reasonable compensation under that head, which requires no interference in this appeal.
44. In the result, the 1st respondent claimant in M.A.C.A.No.434 of 2014, who is the cross objector in C.O.No.42 of 2014 will be entitled for payment of an additional compensation of Rs.13,27,422/- (Rupees thirteen lakhs twenty seven thousand four hundred and twenty two only) [(9,53,318 + 39,104 + 35,000 MACA No.434 of 2014 & CO No.42 of 2014 30 + 2,00,000 + 2,00,000 + 1,00,000) - 2,00,000] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. The appellant insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the 1st respondent/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the 1st respondent/claimant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The claimant shall provide his bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment.
The appeal filed by the insurer is disposed off by scaling down the compensation awarded by the Tribunal under the heads post bystander expenses and future bystander expenses and the cross MACA No.434 of 2014 & CO No.42 of 2014 31 objection filed by the claimant is disposed of by granting additional compensation under certain heads. No order as to costs.
Sd/-
ANIL K. NARENDRAN JUDGE das