Kerala High Court
Uday Unnikrishnan vs Arjunan on 26 May, 2022
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 26TH DAY OF MAY 2022 / 5TH JYAISHTA, 1944
MACA NO. 1546 OF 2013
AGAINST THE ORDER/JUDGMENT IN OPMV 985/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,
OTTAPPALAM
APPELLANT/PETITIONER:
UDAY UNNIKRISHNAN
S/O. KRISHNAN, PADINJAREVEETTIL HOUSE, URAKAM, THRISSUR DISTRICT.
BY ADVS.
SRI.SHEJI P.ABRAHAM
SRI.O.K.MURALEEDHARAN
RESPONDENTS/RESPONDENTS:
1 ARJUNAN
AGE NOT KNOWN, S/O. KRISHNAN, LAPPIKUZHI HOUSE, MANNALAMKUNNU,
KATTUKULAM, SREEKRISHNAPURAM.
(DRIVER OF KL-13/B 5119 LORRY).
2 O.SURENDRAN
AGE NOT KNOWN, ODUVANPARAMBIL HOUSE, P.O.ATTASSERY, SREEKANDAPURAM.
(OWNER OF KL-13/B 5119 LORRY).
3 THE ORIENTAL INSURANCE CO. LTD.
PRANAVAM, MALE PATTAMBI,PALAKKAD,
POLICY NO.442001/31/2008/11024 VALID FROM 10.2.2008 TO 9.2.2009.
BY ADV SRI.GEORGE CHERIAN THIRUVALLA
OTHER PRESENT:
SMT.K.S SANTHI - R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.1546/2013
2
JUDGMENT
This appeal has been filed against the Award passed in O.P.(M.V)No.985/2009 on the file of the Motor Accidents Claims Tribunal, Ottapalam. Claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming a total compensation of Rs.12,00,000/-, on account of the injury sustained by the appellant in a motor accident occurred on 14.11.2008 at about 4.20 p.m due to hit by lorry bearing Reg.No.KL 13 B 5119 driven by the first respondent while the appellant was travelling on pillion of a motorcycle bearing Reg.No.KL 46 1731. It is alleged that the accident happened due to the rash and negligent driving of the first respondent, the driver of the lorry. Second respondent is the owner and third respondent is the insurer of the offending vehicle.
2. Before the Tribunal third respondent filed written MACA No.1546/2013 3 statement admitting the policy coverage with respect to the offending vehicle. Rashness and negligence attributed against the first respondent is denied. Amount of compensation claimed is also contended to be excessive and exorbitant.
3. PW1 and 2 examined and Exts.A1 to A12 marked from the side of the appellant. There was no evidence from the side of respondents. Tribunal on evaluating the evidence and facts and circumstances found the first respondent responsible for the accident and second respondent is held vicariously liable for the acts of the first respondent and third respondent insurer is directed to indemnify the second respondent. Tribunal awarded a total compensation of Rs.7,14,600/-.
4. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, appellant came up in appeal before this Court for various grounds stated in the memorandum of appeal.
5. Adv. Smt. K.S.Santhi appeared on behalf of the third respondent. Notice as against respondents 1 and 2 dispensed with at the risk of the appellant.
MACA No.1546/20134
6. Heard the learned counsel for the appellant as well as learned counsel for the third respondent. Lower Court records were called for and perused.
7. According to the learned counsel for the appellant, the appellant was a B.Tech student and sustained very serious injuries. But the Tribunal awarded a meagre compensation of Rs.7,14,600/-. He would also contend that PW2 Associate Professor in Orthopedics, Government Medical College Hospital, Thrissur issued the disability certificate certifying 15% wholebody permanent disability. But the Tribunal taken only 10% disability for calculating the compensation under the head of permanent disability, that has caused prejudice to him. He would also contend that compensation awarded under the head of bystander expenses, pain and suffering, loss of amenities etc are very low and hence seeks for enhancement on all those heads.
8. First argument is with regard to the multiplicand taken for computing the permanent disability by the Tribunal. According to the learned counsel, the appellant was a B.Tech MACA No.1546/2013 5 student, aged 21 years, at the time of accident and he was examined as PW1 and deposed about the injury sustained by him and the treatment undergone by him. He would also depose that he used to take tuition and used to get monthly income of Rs.7,500/-. Learned counsel for the appellant in this context relies on National Insurance Co.Ltd v. Fathimath Zhuhara [2016(3) KLT 459] wherein a Division Bench of this Court in an accident occurred in the year 2005 with respect to a B.Tech student approved Rs.12,000/- as monthly income taken by the Tribunal for computing the compensation under the permanent disability.
9. Learned counsel further placed reliance on the decisions in Arvind Kumar Mishra v. New India Assurance Co. Ltd. & Ors. [(2010) 10 SCC 254], Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma : (2015) 2 SCC 180, Basanti Devi and Ors. V. Divisional Manager, The New India Assurance Company Ltd. & Ors : 2022 ACJ 823 : MANU/SC/1333/2021 to support his contentions. In Arvind Kumar Mishra, referred above, the appellant sustained permanent disablement of 70% MACA No.1546/2013 6 out of a motor accident who was a final year mechanical engineering student in Birla Institute of Technology, Mesra (B.I.T.) at the time of accident occurred on 23.06.1993. He got examined himself and tendered some of the doctors who treated him in evidence. The Tribunal awarded a lump sum compensation of Rs.1,00,000/- to the claimant towards inconvenience, hardship, discomfort disappointment and mental stress throughout the life. A total compensation of Rs.2,50,000/- was awarded by the Tribunal against which the claimant approached the High Court of Jharkhand, Ranchi and High Court increased the amount of compensation from Rs.2,50,000/- to Rs.3,50,000/-. Dissatisfied with the quantum of compensation the claimant approached the Apex Court. Paragraph 10 of the said judgment is relevant in this context to extract which reads thus:
"In some cases for personal injury, the claim could be in respect of lifetime's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum MACA No.1546/2013 7 awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases - and that is now recognised mode as to the proper measure of compensation - is taking an appropriate multiplier of an appropriate multiplicand."
The claimant in that case was a final year Engineering (Mechanical) student in a reputed college and he was a remarkably brilliant student having passed all his semester examinations in distinction. Due to the injuries out of the accident he remained in coma about two months and his studies got interrupted as he was moved to different hospitals for surgeries and other treatments. For many months his condition remained serious and his right hand was amputated and vision seriously affected. The multiple injuries ultimately led to 70% permanent disablement and he has rendered incapacitated and career ahead of him in his chosen line of Mechanical Engineering got dashed forever and he requires a domestic help throughout his life. He has been deprived of pecuniary benefits which he could have reasonably acquired had he not suffered permanent disablement to the extent of MACA No.1546/2013 8 70% in the accident. So, it was presumed that after completing the Bachelor of Engineering (Mechanical) from a prestigious institute like BIT, he would have got a good job. During his evidence he deposed that he was selected in campus interview by Tata as well as Reliance Industries and offered pay package of Rs.3,50,000/- per annum. But for want of evidence that was not accepted and it was found that even otherwise, it would not have been difficult for him to get some decent job in private sector and had he decided to join Government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs.60,000/- per annum. Wherever he joined he would have a fair chance of promotion and remote chance of some high position. Taking all those factors into account, Apex Court found it fair and reasonable to assess his future earnings at Rs.60,000/- per annum. Taking the salary and allowances payable to an Assistant Engineer in public employment as the basis and out of his future earnings 30% was discounted and estimated the multiplicand as Rs.42,000/- per annum and a multiplier of 18 MACA No.1546/2013 9 was applied and the amount was fixed at Rs.7,56,000/- towards disability.
10. In Ashvinbhai Jayantilal Modi, in an accident occurred on 12.07.2002 with respect to a medical student, the monthly income has been taken as Rs.25,000/- per month, I.e Rs.3,00,000/- per annum. It was taken into account that the deceased was an intelligent and outstanding student of medicine who could have ensued his MD after his graduation and reached greater heights Medical practice is one of the most sought after and rewarding profession and tremendous increase in demand for medical professionals, their salaries are also on the rise and accordingly, Rs.25,000/- have been taken as income.
11. Basanti Devi is a case in which the deceased aged 25 years was a Bachelor of Engineering in Computer Technology. The accident was in the year 2011. Tribunal assessed the income for the purpose of awarding future loss of income at the rate of Rs.20,000/- per month and added 40% towards future prospects and thereafter deducted 50% towards his MACA No.1546/2013 10 personal expenses and applying multiplier of 18, an amount of Rs.30,24,000/- was awarded towards future loss of income. In appeal by the insurance company, the High Court reduced the amount of compensation from Rs.30,24,000/- to Rs.15,82,000/-. Against which both sides approached the Apex Court and having regard to the facts and circumstances, the Apex Court was pleased to approve the monthly income of Rs.20,000/- taken by the Tribunal.
12. So, bearing in mind the above principles, the facts and circumstances of the present case has to be considered. At the time of accident, the appellant was 21 years old engineering student. So taking into account the facts and circumstances the monthly income can be taken as Rs.12,000/- with respect to the appellant being a B.Tech student.
13. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] general principles relating to compensation in injury cases has been dealt with in detail and it has been held therein that the provision of the Motor Vehicles Act, 1988 makes it clear that the award must be just, MACA No.1546/2013 11 which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. It is also held that a person is not only to be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury.
14. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (Special damages) and non pecuniary damages (general damages). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating MACA No.1546/2013 12 treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries.
15. In cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earning (and other gains) which the injured would have made had he not been injured, comprising : - 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 (shortening of normal longevity).
16. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of expectation of life 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.
17. Ext.A2 is the copy of the discharge certificate issued MACA No.1546/2013 13 from Jubilee Mission Medical Hospital, Thrissur and the date of admission is on 14.11.2008 and he was discharged on 05.12.2008 and the investigation showed "head injury- cerebral oedema, compound fracture tibia, fibula right, with vascular injury, avulsion injury right tricepe and fracture left olecranon". Ext.A6 is the discharge summary issued from Jubilee Mission Medical College Hospital, Thrissur for the same period. Ext.A7 series are the discharge summaries issued from Ganga Medical Centre and Hospital (P)Ltd., Coimbatore in which the date of admission shown as 05.12.2008 and the date of discharge was on 06.03.2009. The diagnosis is noted major crush injury right leg with status anterior tibial vessels, revascularisation, status external fixator for open comminuted segmental, fracture both bone leg with extensive raw area exposing fracture both bones and discharging sinus, decreased sensation right foot. Again he was admitted on 03.04.2009 and discharged on 08.04.2009. The diagnosis noted is follow up case of major crush injury right leg with LRS insitu. Again he was admitted on MACA No.1546/2013 14 03.07.2009 and discharged on 05.07.2009. He was again admitted on 12.05.2010 and discharged on 26.05.2010. The diagnosis noted as old operated case of open fracture right tibia fibula with well settled crossing leg flap with sensory blunting over medial planter aspect of right foot and healed right ulna fracture with implant insitu. On 29.05.2010 he was again admitted and discharged on 01.06.2010. So the treatment certificates including the discharge summaries would prove the prolonged treatment and procedures of treatment undergone by him. Ext.A9 is the disability certificate issued by PW2, the Orthopedic Surgeon and Associate Professor in Orthopedics, Government Medical College Hospital, Thrissur. But the Tribunal for the reason that the disability assessed is for a particular limb and considering the present problems of the appellant, was inclined to take only 10% permanent whole body disability. But the doctor who issued the certificate was examined as PW2 and he deposed that his permanent whole body disability is 15%. Though he was cross examined by the learned counsel MACA No.1546/2013 15 for the third respondent, nothing could be brought out to discredit his testimony or to show that disability assessed by him is on higher side. It has been categorically stated in the certificate as well as during evidence that 15% disability assessed is wholebody. So the Tribunal is not justified in reducing the permanent disability to 10%. If at all the Tribunal has got any doubt with regard to the genuineness of the evidence adduced by the appellant with regard to the permanent disability, it ought to have refereed the appellant to a Medical Board to ascertain the genuineness of the evidence adduced by the appellant. Without doing that the act of unilaterally reducing the disability to 10% by the Tribunal is not seems to be legal and proper. Hence the permanent disability of the appellant is taken as 15% as certified by PW2, the doctor.
18. It has come out in evidence that the appellant had undergone 132 days of inpatient treatment in various hospitals including Ganga Medical Centre and Hospital (P) Ltd., Coimbatore for a quite long time. So the compensation MACA No.1546/2013 16 awarded by the Tribunal can be re-fixed as follows:
19. Towards bystander expenses the Tribunal awarded Rs.26,400/-. The accident was in the year 2008. Hence towards bystander expense, an amount of Rs.250/- per day can be taken and hence towards bystander expense appellant is entitled to get Rs.33,000/- [250x132]. Deducing the amount already awarded, balance would be Rs.6,600/- [33,000-26,400]. Towards pain and suffering, appellant claimed Rs.50,000/-. Tribunal awarded only Rs.30,000/-. In view of the serious nature of injuries sustained by the appellant and the lengthy procedures undergone by him and the period of inpatient treatment of 132 days, compensation towards pain and suffering is re-fixed as Rs.50,000/-. Deducting the amount already awarded, balance would be Rs.20,000/- [50,000- 30,000].
20. Next is with regard to the compensation towards permanent disability. The monthly income for the purpose of computing disability has already been taken as Rs.12,000/-. As per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation MACA No.1546/2013 17 & Anr. [2010 (2) KLT 802 (SC)] as approved by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] the suitable multiplier would be '18' since the appellant was 21 year old student at the time of accident. So the compensation towards permanent disability would be Rs.3,88,800/- [12,000x12x18x15/100]. Deducting the amount already awarded, balance would be Rs.3,24,000/- [3,88,800- 64,800].
21. Learned counsel further contend that the accident and the injuries has adversely affected his marriage prospects to a great extent and he was an engineering student and the injuries and the disfigurement to the leg including shortening of leg has reduced his marriage prospects considerably. So taking into account the facts and circumstances, an amount of Rs.15,000/- is awarded towards loss of marriage prospects.
22. Next is with regard to the loss of amenities. According to the learned counsel, the amount awarded by the Tribunal is very low. Tribunal awarded Rs.20,000/- towards loss of amenities. In view of the facts and circumstances, an MACA No.1546/2013 18 amount of Rs.15,000/- is further awarded towards loss of amenities.
23. In the result, the appellant is allowed to realise enhanced compensation of Rs.3,80,600/- [6,600+20,000+ 3,24,000+15,000+15,000], (Rupees three lakhs eighty thousand six hundred only) which will carry interest at the rate of 6% per annum from the date of petition till realisation (excluding the period of 418 days delay caused in filing the appeal). The third respondent, insurer shall satisfy the additional compensation granted in this appeal, together with interest deducting the amount due towards balance court fee, within a period of two months from the date of receipt of certified copy of this judgment.
24. The disbursement of additional compensation to appellant shall be made taking note of the law on the point and in terms of 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.
Appellant shall provide his Bank Account details (attested MACA No.1546/2013 19 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 certified copy of this judgment. Parties shall bear their respective costs.
Sd/-
M.R.ANITHA JUDGE shg