M/S.Icici Lombard General Insurance ... vs Amith Varghese (Minor) on 19 November, 2013

[Cites 8, Cited by 9]

Kerala High Court

M/S.Icici Lombard General Insurance ... vs Amith Varghese (Minor) on 19 November, 2013

In these appeals a question of importance emanates for consideration. The captioned appeals arise from the judgment and award of the Motor Accidents Claims Tribunal, Ernakulam dated 19.11.2013 in O.P.(M.V)No.327 of 2009. The former appeal has been preferred by the 3rd respondent insurance company challenging the quantum of compensation granted by the Tribunal on the ground that it is exorbitant. The latter appeal has been preferred by the petitioner through the next friend who is his father seeking enhancement of compensation contending that he has been deprived of just compensation. As per the impugned award, the Tribunal granted a total compensation of 7,02,000/- as against a claim of 10,00,000/-, with interest at the rate of 7% per annum from the date of petition till realisation. Since these appeals arise from the very same award, we have heard the appeals jointly and they are being disposed of by this common judgment. For the sake of convenience, the parties are referred to hereinafter in this judgment, in accordance with their M.A.C.A.Nos.320/2015 & 2686/2016 2 original status before the Tribunal unless otherwise specifically mentioned.

2. We have heard Adv.Sri.A.N.Santhosh, the learned counsel for the petitioner and also Adv.Sri.R.Ajithkumar Varma, the learned counsel appearing for the 3rd respondent Insurance Company.

3. A succinct narration of the circumstances that led to the filing of the aforementioned claim petition through his next friend under Section 166 of the Motor Vehicles Act is as hereunder:-

The petitioner met with an accident at the tender age of three years. On 2.2.2008 at about 5.30 p.m., while he was playing in the courtyard of his house abutting Marangoli - Peruva road, the offending vehicle which is a lorry bearing Reg.No.KL-17/A 2854, driven by the 2nd respondent, knocked him down. On sustaining severe injuries he was immediately taken to Matha Hospital, Kottayam and from there he was referred to Specialists' Hospital, Ernakulam where he remained as an inpatient for a period of 40 days. Ultimately, his right leg was amputated below knee. The aforesaid claim petition filed by him culminated in the impugned award, as mentioned above. While the petitioner contends that the quantum of compensation awarded viz., 7,02,000/- cannot be said to be a `just compensation', the 3rd M.A.C.A.Nos.320/2015 & 2686/2016 3 respondent Insurance Company contends that it is exorbitant.

4. In the appeal a specific ground was taken by the 3rd respondent insurance company relying on the decision of the Hon'ble Apex Court in Mallikarjun v. National Insurance Co. Ltd. ((2014) 14 SCC 396) that the compensation awarded is exorbitant and therefore, it is to be scaled down. The nub of the learned counsel's argument is that after the decision in Mallikarjun's case (supra), computation of compensation in a claim petition filed under Section 166 of the Motor Vehicles Act for personal injuries of children in a motor vehicle accident causing permanent disability, should be strictly adhering to the structure of compensation formulated therein. The learned counsel for the petitioner resisted the contentions and advanced the arguments, paradoxically, relying on the same decision that it is possible and permissible to take a different yardstick rather, to deviate from the formulated structure thereunder, in exceptional circumstances. It is contended that an analysis of the situation obtained in the case on hand based on the materials available on record, would undoubtedly reveal the existence of exceptional circumstances justifying rather, commanding adoption of a difference yardstick for granting higher compensation.

M.A.C.A.Nos.320/2015 & 2686/2016 4

5. The rival contentions, in our judgment, beckon consideration of the question, whether the decision in Mallikarjun's case (supra) laid down any hard and fast rule not susceptible to deviation at any given circumstances ? True that in the said decision the Hon'ble Apex Court held that in the case of children suffering from disability on account of motor vehicle accident appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant etc. should be as follows:-

                 "Disability up to 10%       -  1,00,000/-

                  above 10% and up to
                   30% to the whole body     -  3,00,000/-

                  up to 60%                  -  4,00,000/-

                  up to 90%                  -  5,00,000/-

                  above 90%                  -  6,00,000/-"

Evidently, the Hon'ble Apex Court prescribed the said structure of compensation with a view to bring uniformity in a socio-economic issue. Though such decisions on socio-economic issues would be revisited by the Hon'ble Apex Court such a decision rendered by the Hon'ble Supreme Court to bring uniformity on a socio-economic issue would be having precedental value and that position is well-nigh settled. See the decision in Rajesh v. Rajbir Singh (2013(3) KLT 89(SC)) wherein M.A.C.A.Nos.320/2015 & 2686/2016 5 the Hon'ble Apex Court held as follows:-

"The ratio of a decision of this Court, on a legal issue is a precedent. But, an observation made by this Court, mainly to achieve uniformity and consistency on a socio- economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi v. National Insurance Company Ltd. and Others (AIR 2012 SC 2185). We may therefore, revisit the practice of awarding compensation under conventional heads; loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses."

Therefore, indubitably, in respect of cases falling under the aforesaid category viz., claim petitions filed under Section 166 of the Motor Vehicles Act seeking compensation for personal injuries sustained by children in a motor vehicle accident that resulted in permanent disability the decision in Mallikarjun's case (supra) must have the value of a precedent in the matter of computing compensation. But, at the same time, no volume of argument is necessary to conclude that in exceptional circumstances a different yardstick could be adopted. It is because even after formulating such a structure of compensation as extracted above based on the degree of whole body disability, it was held explicitly in paragraph 12 therein that they shall be followed "unless there are exceptional circumstances to take a different yardstick." The corollary of the said expression used in paragraph 12, M.A.C.A.Nos.320/2015 & 2686/2016 6 without any scintilla of doubt, would make the position clear that though under normal circumstances in respect of claims for compensation falling under the aforementioned category, computation of compensation shall be done strictly in accordance with the structure of compensation formulated in Mallikarjun's case (supra), in exceptional circumstances a different yardstick can be adopted. We may hasten to add, even while upholding the contention of the petitioner that a different yardstick could be adopted in exceptional circumstances, such exceptional circumstances compelling adoption of a different yardstick should be specifically stated, in black and white, in the judgment concerned. We also ween it only appropriate to add further that the mere factum of sustainment of a very high degree of disability by itself cannot be a reason for categorizing a case as one involving exceptional circumstances. The raison d'etre for our conclusion is that going by the structure of compensation formulated by the Hon'ble Apex Court in Mallikarjun's case (supra), as extracted above, even from 1% to 10% and up to and above 90%, different rates of compensation, in addition to the actual expenditure for treatment, attendant etc. are given specifically. Prescription of the quantum of compensation payable in case of disability of above 90% thereunder would fortify our conclusion. To sum up, it can be said with certitude that a deviation from the structure M.A.C.A.Nos.320/2015 & 2686/2016 7 of compensation formulated in Mallikarjun's case (supra) is permissible only because it is permitted thereunder and that adoption of a different yardstick is possible and permissible only in exceptional circumstances. Therefore, to ensure its scrupulous adherence wherever it is deviated on the ground of existence of exceptional circumstances such exceptional circumstances should be specifically mentioned in the judgment.

6. When once it is so held, the next question to be considered is whether exceptional circumstances exist, in this case, warranting an adoption of a different yardstick for granting higher compensation. As noticed hereinbefore, injuries sustained by the petitioner in a motor vehicle accident caused a high degree of disability and it occurred when he was aged only of three years and that too, while playing in his own courtyard. He sustained a degloving injury on the left leg in the accident and to make matters worst as its aftermath his right leg was amputated below knee from Specialists' Hospital, Ernakulam. The Medical Board assessed his permanent disability as 50%. A degloving injury is a type of avulsion in which an excessive section of skin is completely torn of the underlying tissue severing its blood supply. This had occurred to his heel pad of the left leg and it was also a crush injury. In Ext.A7 wound certificate issued from M.A.C.A.Nos.320/2015 & 2686/2016 8 Specialists' Hospital, Ernakulam it was noted that the petitioner had sustained degloving injury on heel pad of left foot with distally based flap. The injury thus sustained to his heel pad of the left leg seems almost not senative. The amputation of the other leg viz., right leg below knee made his plight more pitiable. As noticed hereinbefore, all these happened to him at the age of three years. It needs no special wisdom to understand that his left leg will go on growing till maturity despite the amputation of his right leg below knee. Thus, before attaining matureness he may have to change the BK prosthesis at least thrice so as to cope up with the growth of the other leg and also to keep his bodily equilibrium for movement. Another aspect also assumes relevance. Studies on stump overgrowth in Juvenile Amputees revealed that acquired below knee amputation was the most common type needing revision and in such cases, the younger the patient the greater would be the incidence of repeated revisions. Obviously, overgrowth of the stump is the most common complication in pediatric amputees. The bones most frequently affected, in decreasing order, are the humerus, fibula, tibia and femur. In such circumstances, owing to overgrowth of stump of the right leg which was amputated below knee it is most certain that he will require repeated revisions for the removal of stump overgrowth. It cannot be said with definiteness as to what would be the number of revisions required owing to stump M.A.C.A.Nos.320/2015 & 2686/2016 9 overgrowth and also regarding the number of occasions requiring for change of BK prosthesis. But, at the same time, with certitude it can be said that for reasons already explained instances of stump overgrowth and requirement to change the BK prosthesis would definitely happen in his life more than once. In such circumstances, he must have to undergo further surgeries. Taking into account all such aspects adequate amount is to be granted towards future medical treatment. Though the petitioner claimed an amount of 5,00,000/- under that head no amount was granted. We are of the view that deviation from the structure of compensation is required to assess an adequate compensation under this head, as well, in view of the exceptional circumstances mentioned hereinbefore. If we follow the structure of compensation formulated in Mallikarjun's case (supra), for the aforesaid reasons, the petitioner cannot be given adequate amount towards future medical treatment as granting adequate amount thereunder in addition to the other permissible heads would take the quantum of compensation beyond the permissible limit in view of the structure of compensation formulated in Mallikarjun's case (supra). The amputation of right leg below knee together with the degloving injury on the left leg will not only deprive him the pleasures of life in different ways but also adversely affect his marriage prospects. Above all, the affliction it caused mentally and its impact on his future M.A.C.A.Nos.320/2015 & 2686/2016 10 prospects, taking into account the fact that the petitioner had to face such an accident having mind wrecking impact at the tender age of three years, also cannot be ignored. The degloving injury and the amputation of the leg below knee at the age of three years had already deprived him the charm of childhood and it will certainly deprive him the enjoyment and pleasure of boyhood and manhood to a great extent. It may also persuade him to keep aloof from others and the chance for developing inferiority complex also cannot be ruled out. Whether such heavy losses in life are ransomable ? We do not think so. In such circumstances, we conclude that exceptional circumstances did exist in the case on hand, justifying exercise of the liberty granted by the Hon'ble Apex Court in Mallikarjun's case (supra) to adopt a different yardstick to decide the just compensation.

7. In the former appeal filed by the insurance company ground `B' was taken based on the decision in Mallikarjun's case (supra). According to the 3rd respondent-insurance company, going by the said decision, in respect of children who incurred disability between 40% and 60% as a result of injuries sustained in a motor vehicle accident a lumpsum amount of 4,00,000/- alone can be granted in addition to the actual medical bills. Nonetheless, no dispute has been raised therein as regards the assessment of permanent disability of the M.A.C.A.Nos.320/2015 & 2686/2016 11 petitioner as 50% and admitting the same it is contended thereunder that the petitioner is entitled only to 4,00,000/- in addition to medical bills. In fact, as per the decision 4,00,000/- is prescribed as the compensation for disability ranging between 31% and 60% in addition to that pecuniary loss sustained. Certain amount taking the loss of income of parents is also grantable. Taking note of Ext.P10 medical bills the Tribunal granted an amount of 1,38,000/- towards reimbursement of medical expenses. Towards attendant expenses an amount of 30,000/- was granted and towards extra nourishment an amount of 10,000/- was granted. Coupled with the aforesaid circumstances our conclusion that exceptional circumstances exist in the case would constrain us to hold that the amount now granted under the impugned award cannot be said to be exorbitant. In fact, the exceptional circumstances explained hereinbefore would compel us to concord with the contention of the petitioner that he was deprived of `just compensation'. In view of the discussions as above, the former appeal has to fail.

8. The next question is what would be the just compensation payable to the petitioner in conformity with the doctrine of `restitutio in integrum' which means `to restore parties to their original position'. Taking note of the harmful result of the wrongful M.A.C.A.Nos.320/2015 & 2686/2016 12 action mentioned hereinbefore we are of the view that the normal method of assessment of compensation would result in deprival of due compensation. In Nagappa v. Gurudayal Singh & Ors. (AIR 2003 SC

674) the Hon'ble Apex Court held thus:-

"Thereafter, S.168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just".

Therefore, only requirement for determining the compensation is that it must be `just'. There is no other limitation or restriction on its power for awarding just compensation."

The said principle laid down in Nagappa's case (supra) was restated in Oriental Insurance Company Limited v. Mohd Nasir & Anr. (AIR 2009 SC (Supp) 1619) and in Nigamma & Anr. v. United Indian Insurance Company Limited ((2009) 13 SCC 710). Taking into account the said three decisions the Hon'ble Apex Court held in Rajesh v. Rajbir Singh (2013 (3) KLT 89 (SC)) that the underlying principle discussed in the said three decisions is with respect to the duty of the Court to fix a just compensation and it had now become trite law that the Court should not succumb to niceties and technicalities, in its endeavour to grant just compensation. In R.K.Malik v. Kiran Pal ((2009) 14 SCC 1) the Hon'ble Supreme held thus:-

M.A.C.A.Nos.320/2015 & 2686/2016 13

"8. Undoubtedly, the compensation in law is paid to restore the person, who has suffered damage or loss in the same position, if the tortuous act or the breach of contract had not been committed. The law requires that the party suffering should be put in the same position, if the contract had been performed or the wrong had not been committed. The law in all such matters requires payment of adequate, reasonable and just monetary compensation.

9. In cases of motor accidents the endeavour is to put the dependants/claimants in the pre-accidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the party, who has suffered, in the same position if he had not suffered on account of the wrong. Compensation is therefore required to be paid for prospective pecuniary loss i.e. future loss of income/dependency suffered on account of the wrongful act. However, no amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely.,

10. To put it simply - pecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for non-pecuniary losses on account of loss of happiness, pain, suffering and expectancy of life, etc. The Act provides for payment of "just compensation" vide Sections 166 and

168. It is left to the courts to decide what would be "just compensation" in the facts of a case."

(emphasis added) Bearing in mind those facts and factors we will proceed further to fix the `just compensation'.

M.A.C.A.Nos.320/2015 & 2686/2016 14

9. I.A.No.4161 of 2016 has been filed by the petitioner/appellant in the latter appeal. Along with the said interim application two documents viz., Annexures A1 and A2 are produced. Annexure-A1 would reveal that the petitioner purchased an artificial limb in 2016 with a cost of 25,000/-. Annexure-A2 is only a certificate issued from Specialists' Hospital, Ernakulam. Ext.A6 is the wound certificate issued from Matha Hospital. Ext.A7 is the wound certificate issued from Specialists' Hospital where the petitioner remained as inpatient and from where amputation of his right leg was done. Ext.A8 is the discharge summary and Ext.A9 is the treatment certificate issued, from the same hospital. Evidently, the respondents did not raise any objection as to the admissibility of Exts.A1 to A11 documents and those marked documents were relied on by the Tribunal. When the amputation below knee is revealed from the evidence on record and the said position is not in dispute Annexure-A2 bill revealing the purchase of BK prosthesis for 25,000/- can be taken as additional evidence. On going through Annexure-A2 certificate it is evident that it mostly dealt with facts and factors revealed from the aforesaid marked documents against which were acted upon by the Tribunal. Over and above such details it carried only the opinion that B.K.prosthesis needs to be changed according to the growth of the child. We have already arrived at such a conclusion based on the other undisputed facts narrated in M.A.C.A.Nos.320/2015 & 2686/2016 15 detail in the impugned judgment and taking note of the admitted age of the petitioner at the time of the accident. In such circumstances, we are of the considered view that since their genuineness need not be doubted and they are very much relevant for the purpose of proper disposal of the latter appeal they are to be received as additional evidence in exercise of power under Order XLI Rule 27 of the Code of Civil Procedure. Accordingly, I.A.No.4161 of 2016 is allowed and the said documents are taken on file and marked respectively as Exts.A12 and A13 respectively. As noticed hereinbefore, the petitioner is now aged only 11 years. We have already dealt with the pain, sufferings, harmful impact of the wrongful action hereinbefore while considering the question whether the petitioner's case is one involving exceptional circumstances warranting adoption of a different yardstick instead of granting compensation in terms of structure of compensation formulated in Mallikarjun's case (supra). All such aspects have to be taken into account while awarding compensation and according to us, it is unnecessary to advert to such aspects again and therefore, without making further detailed discussion on such matters compensation has to be granted under suitable heads to arrive at the just compensation. In the decision in R.K.Malik's case (supra) a reference was made with respect to the annual income recommended by Justice Y.V.Chandrachud Committee that can be taken as contribution of children for the purpose M.A.C.A.Nos.320/2015 & 2686/2016 16 of assessing compensation. An amount of 24,000/- was recommended in that regard. True that reference was so made while dealing with the compensation payable for loss of dependency. We do not find any reason why the said amount should not be taken as the annual income for the purpose of calculating the compensation for permanent disability taking note of the nature of the petitioner's permanent disability and the age at which he incurred such disability. Going by the said decision the multiplier in respect of children has to be taken as `15'. We have already taken note of the fact that the assessment of permanent disability of the petitioner viz., 50% was not at all disputed by the 3rd respondent insurance company. In view of R.K.Malik's case (supra) addition to the income reckoning the future prospects is also permissible in the case of children while assessing compensation. The nature and extent of permanent disability constrain us to hold that it is only just and proper to make an addition of 50% to the annual income fixed in this case. Consequently, on re-assessing the compensation for permanent disability the petitioner would be entitled to get an amount of 2,70,000/-. The Tribunal granted 1,38,000/- after scrutiny of Ext.P10 bills and it is also to be granted to the petitioner. Towards disfiguration the Tribunal granted 1,00,000/-. We have already found that the degloving injury on the left heal pad of the petitioner is almost not senative and his right leg was amputated below knee. Considering M.A.C.A.Nos.320/2015 & 2686/2016 17 the condition of his two legs and his age and the period which he had to live with such disfiguration we do not think that the amount granted is exorbitant and in fact, it is only just and reasonable. Towards pain and sufferings the Tribunal granted only an amount of 40,000/-. We find force in the contention of the petitioner that it is too low and inadequate. The degloving and crush injury sustained on the left leg, the nature of the injury that necessitated amputation of right leg below knee and the age at which he was made to sustain excruciating pain and also the mental strain of the petitioner who was then aged only three years are to be taken into account while awarding compensation thereunder. He was then playing in his courtyard. According to Kemp and Kemp, Quantum of Damages, Vol.I the word `pain' is used to describe the physical pain caused by or consequent upon the injury while `suffering' relates to the mental element of anxiety, fear, embarrassment and the like. In such circumstances, we are of the view that the petitioner is entitled to an amount of 1,00,000/- to ameliorate the pain and sufferings. The nature of disfiguration and the permanent disability will certainly reduce his marriage prospects. No amount was claimed under this head. We are inclined to grant an amount of 75,000/- under this head. The petitioner is also entitled to be compensated for the deprivation of enjoyment of his childhood, the dejection, and unhappiness besides inevitable deprival of pleasures of M.A.C.A.Nos.320/2015 & 2686/2016 18 life during his boyhood and manhood and even thereafter. How can the loss of charm of childhood, the most enjoyable and tension free stage of life be properly compensated ? Taking all such factors we are inclined to grant an amount of 1,00,000/-. In the light of Ext.P12 bill the petitioner is entitled to get 25,000/- towards reimbursement of the expense incurred on BK prosthesis. Taking note of the age of the petitioner at the time of the accident and the nature of the amputation of the right leg it is evident that for stump overgrowth he may have to have revisions as it is most common complication in pediatric amputees. We have already taken note of the fact that studies on stump overgrowth in juvenile amputees revealed that acquired below knee amputation is the common type needing revision and in such cases, the younger the patient the greater would be incidence of repeated revisions. In this case, the petitioner was aged only 3 years at the time of the accident and he is now aged only 11 years. In such circumstances, there can be no doubt that the petitioner might require a number of revisions owing to the problem of stump overgrowth. That apart, since he is still very young according to his growth BK prosthesis need to be changed. In fact, our finding and conclusion in that regard get fortified with Ext.P13 certificate issued from Specialists' Hospital, Ernakulam from where his right leg was amputated. Taking note of the cost of BK prosthesis, the fact that he may have to change the same M.A.C.A.Nos.320/2015 & 2686/2016 19 according to his growth and also the revisions he may have to have owing to stump overgrowth and the treatment required to the left leg where he sustained a degloving and crush injury, we are of the considered view that adequate amount has to be granted towards future medical treatment. Hence, as against a claim of 5,00,000/- the petitioner is granted an amount of 2,50,000/- under that head. Over and above the compensation granted under the aforesaid heads the petitioner is also entitled to get compensation/reimbursement under the heads loss of income of parents, extra nourishment, attendant expenses, transportation expenses and for damage to clothes. Considering all such aspects and the compensation and reimbursement granted above, it is only just and proper to grant a total compensation of 11,00,000/-. We are of the view that the said compensation would be the just compensation commensurating with the nature of the injuries that resulted in permanent disability and the hardships which he had hitherto suffered and hereafter to be suffered. In such circumstances, the impugned award is modified and the quantum of compensation is enhanced to 11,00,000/-.

In the result, M.A.C.A.No.320 of 2015 is dismissed and M.A.C.A.No.2686 of 2016 is allowed. The Tribunal has granted an amount of 7,02,000/- as per the impugned award. Hence, the M.A.C.A.Nos.320/2015 & 2686/2016 20 petitioner is awarded an additional compensation of 3,98,000/-. Out of 3,98,000/- virtually, we have granted 2,50,000/- towards future medical treatment. Therefore, the said amount cannot carry interest. Hence, it is made clear that only an amount of 1,48,000/-, out of the amount of 3,98,000/-, will carry interest at the rate of 8% per annum from the date of petition till realisation. Ordered accordingly. But, it is to be noted that as per order dated 16.11.2016 in C.M.Appl.No.3092 of 2016 in M.A.C.A.No.2686 of 2016, the application for condoning the delay of 908 days in filing the appeal, the delay was condoned on condition that in case enhancement of compensation is granted the petitioner would not be entitled to get interest for the said period of 908 days. In such circumstances, it is made clear that the petitioner is not entitled for interest for a period of 908 days. The 3rd respondent insurance company shall deposit the additional compensation along with interest thereon, within a period of three months from the date of receipt of a copy of this judgment. Taking note of the amount required for treatment and the immediate urgency to meet the expenses required for further surgery and other attendant expenses, the Tribunal shall release an amount of 2,50,000/- to the guardian of the petitioner on application. Before releasing the amount, the Tribunal shall take steps for realising the balance amount of court fee, if any, payable by reason of grant of enhanced compensation, in accordance M.A.C.A.Nos.320/2015 & 2686/2016 21 with law. There will be no order as to costs in both the appeals.

Sd/-

C.T.RAVIKUMAR Judge Sd/-

K.P.JYOTHINDRANATH Judge TKS

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