IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
MACA NO. 2503 OF 2015
AGAINST THE AWARD IN OPMV 530/2013 OF III ADDITIONAL MACT, ERNAKULAM
APPELLANT/2ND RESPONDENT
THE ORIENTAL INSURANCE CO.LTD.
METRO PALACE, GROUND FLOOR, OPP. NORTH RAILWAY STATION,
ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER.
BY ADV SRI.VPK.PANICKER
RESPONDENT/PETITIONER:
ARJUN KRISHNA
S/O. KRISHNAKUMAR, MAYASADHANAM, CHERANALLOOR KARA,
CHERNELLOOR VILLAGE, ERNAKULAM DISTRICT-682034.
BY ADVS.
P.VISWANATHA MENON
C.CHANDRASEKHARAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No. 2503/2015 2
JUDGMENT
This appeal is preferred by the Insurance Company, the 2 nd respondent in OP (M.V) No.530 of 2013 on the file of the III Additional Motor Accidents Claims Tribunal, Ernakulam. The parties in this appeal are referred to as per their status in the claim petition unless otherwise specifically mentioned.
2.The petitioner, while riding a motor bike through the Kunnumpuram -Edappally road on 26.10.2012, sustained serious injuries when an autorickshaw bearing Registration No. KL-07/BT-1665 owned and driven by the 1 st respondent hit the motor bike. The petitioner filed an application for compensation under Section 166 (1) (a) of the Motor Vehicles Act, 1988 claiming an amount of Rs.20 lacs for the personal injuries sustained in the accident.
3.Before the Tribunal, the 1st respondent remained ex parte. The 2nd respondent, the insurer of the autorickshaw admitted that the vehicle was insured with them at the time of accident. They contended that the accident happened due to the negligence of the petitioner and the compensation MACA No. 2503/2015 3 claimed is excessive. The evidence consists of the oral testimony of the petitioner, Exts. A1 to A10 and Ext. X1.
4.The Tribunal found that the accident happened due to the negligence of the 1st respondent and awarded an amount of Rs.19,18,316/- (Rupees Nineteen Lakh Eighteen Thousand Three Hundred and Sixteen only) to the petitioner as compensation together with 9% interest per annum thereon from the date of petition till the date of realization with proportionate costs. The 2nd respondent insurance company was directed to satisfy the award. This split up of the compensation awarded by the Tribunal is as follows:
Heads Amount Amount
Claimed Awarded
Compensation for loss 40000 30000
of earnings
compensation for loss of 100000 30000
studies
Transport Expenses 5000 2000
Extra nourishment 20000 1000
Damage to clothes and 5000 2000
articles
Bystander's Expenses 50000 10000
Medical Expenses 700000 561316
Future Treatment 50000 10000
Expenses
MACA No. 2503/2015 4
Compensation for pain 100000 60000
and suffering
Compensation for 1000000 972000
continuing permanent
disability
Compensation for loss 50000 40000
of amenities and
enjoyment in life
Compensation for loss 500000 0
of future earnings
Compensation for loss 50000 0
of skin
Compensation for loss 300000 200000
of future prospects
TOTAL 29,70,000 19,18,316
Claim is limited to Rs.20
Lacs
5.Aggrieved by the quantum of compensation awarded by the Tribunal under various heads, the insurance company has preferred this appeal. According to the insurer, the amount awarded as compensation is excessive and contrary to law.
6.The petitioner, at the time of accident, was a final year B-Tech student in the Model Engineering College, Thrikkakara. Sri. Chandrasekharan, the learned counsel for the petitioner submits that the petitioner later passed the course in the First Class. Ext.A9 is the copy of the Degree certificate. MACA No. 2503/2015 5
7. The documents produced shows that the petitioner suffered the following injuries:-
1. Fracture right femur shart, femoral artery seen cut, lacerated injury 10x2 cm on right thigh exposed outside skin.
2. Active bleeding, swelling on elbow, abrasion on fingers.
The petitioner was treated as an inpatient for a period of 22 days on two spells from 26.10.2012 to 15.11.2012 and from 06.07.2013 to 08.07.2013. Total medical bills produced by the petitioner come to Rs. 5,61,316/-. As per Ext. X1 disability certificate issued by the Medical Board, Medical College Hospital, Alappuzha, the permanent disability of the petitioner is assessed at 45%.
8. The Tribunal fixed the monthly income of the petitioner at Rs.10,000/- for the purpose of assessing compensation. Since the petitioner was aged 21 years at the time of accident, the Tribunal has taken the multiplier as '18' and the percentage of loss of earning capacity as 45% based on Ext. X1 disability certificate.
9. According to Sri. V.P.K. Panicker, the learned counsel for MACA No. 2503/2015 6 the appellant, the Tribunal went wrong in fixing the monthly income of the petitioner as Rs. 10,000/- as he was a student at the time of accident. It is further contended that the Tribunal erred in awarding Rs.30,000/- for loss of earnings as he was a student at the time of the accident and in awarding a further sum of Rs. 30,000/- towards loss of studies as there was no evidence that the studies had prolonged due to the accident. Sri. Panicker contends that, the petitioner being a computer science engineer, his permanent disability would not impair his earning capacity and the Tribunal ought not to have taken the percentage of loss of earning capacity as 45% based on Ext. X1 disability certificate. It is also contended that the Tribunal erred in awarding a further sum of Rs. 2,00,000/- for loss of future prospects, over and above the compensation awarded under the head permanent disability.
10.As regards the income of the petitioner, he was a student at the time of the accident. The Hon'ble Supreme Court in Krishna Moorthy M.R. v. The New India Assurance Co.Ltd. and others [AIR 2019 SC 5625:(2020) 15 SCC 493: MACA No. 2503/2015 7 2019 KHC 379: 2019(2) KLT 73], after referring to earlier decisions, has culled out the following principles for assessment of compensation when victim was student at the time of accident.
"(i) In those cases where the victim of the accident is not an earning person but a student, while assessing the compensation for loss of future earning, the focus of the examination would be the career prospect and the likely earning of such a person in future. For example, where the claimant is pursuing a particular professional course, the poseer would be: what would have been his income had he joined a service commensurating with the said course. That can be the future earning.
(ii) There may be cases where the victim is not, at that stage, doing any such course to get a particular job. He or she may be studying in a school. In such a case, future career would depend upon multiple factors like the family background, choice / interest of the complainant to pursue a particular career, facilities available to him / her for adopting such a career, the favourable surrounding circumstances to see which would have enabled the MACA No. 2503/2015 8 claimant to successfully pick up the said career etc. If the chosen field is employment, then the future earning can be taken on the basis of salary and allowances which are payable for such calling. In case, career is a particular profession, the future earning would depend on host of other factors on the basis of which chances to achieve success in such a profession can be ascertained.
(iii) There may be cases like Deo Patodi where even a student, the claimant would have made earnings on part - time basis or would have received offer for a particular job. In such cases, these factors would also assume relevance.
(iv) After ascertaining the likely earning of the victim in the aforesaid manner, the nature of injuries and disability suffered as a result thereof would be kept in mind while determining as to how much earning has been affected thereby. Here, impact of injuries on functional disability is to be seen. In case of death of victim, it would result in total loss of earning. In the case of injuries, the nature of disability becomes important. Such an exercise was undertaken in N. Manjegowda case."
MACA No. 2503/2015 9
11. The average income of a Computer Science Engineer, a new entrant, in the year 2012-13 was more than Rs.10,000/- and therefore the Tribunal was right in taking the monthly income of the petitioner as Rs. 10,000/- for computing the compensation.
12.The Tribunal has awarded Rs.30,000/- for loss of earnings. Though the petitioner was a student at the time of accident, for assessing the future loss of income, the monthly income of the petitioner is taken as Rs. 10,000/- in the light of the principles laid down in Krishna Moorthy (supra). However, for loss of earnings during the period of hospitalisation, in the absence of evidence regarding his earnings during the period of his studies, the Tribunal ought not have awarded compensation. Accordingly, the amount of Rs.30,000/- awarded under the head 'loss of earnings' has to be deducted from the total compensation.
13.Towards compensation for loss of studies, the Tribunal has awarded Rs. 30,000/-. According to the counsel for the appellant, there is no evidence that the studies of the MACA No. 2503/2015 10 petitioner had prolonged due to the accident. The petitioner was a final year B.Tech student at the time of accident. He was treated as inpatient in the hospital for 22 days. Definitely, he must have missed classes during this period. In spite of the injuries and treatment, he did not discontinue his studies. It is evident from Ext.A9 Degree Certificate that he passed the course in the First Class. No doubt, it can only due to the extra efforts put in by the petitioner amidst injuries, his studies did not prolong due to the accident. Therefore, the petitioner has to be suitably compensated for the lost classes. The Tribunal has rightly awarded an amount of Rs. 30,000/- as compensation for loss of studies.
14. Another contention of the appellant is that, the petitioner being a Computer Science Engineer, his permanent disability would not impair his earning capacity and the Tribunal ought not to have taken the percentage of loss of earning capacity as 45% based on Ext. X1 disability certificate. It cannot be said that the work of a Computer Science Engineer is always a coding or desk job sitting in MACA No. 2503/2015 11 cubicle in front of a computer. The work may require them to be on their feet, in the field or in the workshop. The permanent disability will definitely have impact on his functional disability. He may not be selected for non-desk jobs and jobs that require travelling and the disability may also affect the career trajectory. Therefore, the percentage of loss of earning capacity as a result of the permanent disability in this case has to be taken approximately the same as the percentage of permanent disability assessed in Ext. X1 disability certificate. I do not find any reason to interfere with the finding of the Tribunal with regard to the percentage of loss of earning capacity. The Tribunal has rightly awarded the sum of Rs. 9,72,000/- (10,000x12x18x45%) as compensation for continuing permanent disability.
15. It is contended by the appellant that, the Tribunal erred in awarding a further sum of Rs. 2,00,000/- for loss of future prospects, over and above the compensation awarded under the head permanent disability. I find force in the said submission. In National Insurance Company Ltd. v. MACA No. 2503/2015 12 Pranay Sethi [(2017)16 SCC 680], the Apex Court held that the determination of income while computing compensation has to include future prospects. The Court observed that, to follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under S.168 of the Act. Accordingly, the Court 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 to 60 years, the addition should be 15%. In case the deceased was self - employed or on a fixed salary, an addition of 40% of the established income MACA No. 2503/2015 13 should be the warrant where the deceased was below the age of 40 years. The Court held that, 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. In Pappu Deo Yadav v. Naresh Kumar and others [AIR 2020 SC 4424], the Apex Court held that, in cases of serious injuries resulting in permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too. In the case on hand, the injuries have resulted in permanent disablement of 45% only and this Court is of the view that this is not a case of serious injuries resulting in permanent disablement where the petitioner can seek compensation for future prospects. Further, the compensation for loss of future prospects cannot be granted in lump sum. The addition to the income towards future prospects has to be made as per the methodology laid down in Pranay Sethi (supra). In the MACA No. 2503/2015 14 circumstances, the Tribunal was not correct in awarding Rs. 2,00,000/- for loss of future prospects and that amount has to be deducted from the total compensation.
16.The last contention of the appellant is that the Tribunal went wrong in awarding Rs.40,000/- for loss of amenities and enjoyments in life, over and above the compensation for permanent disability. In Raj Kumar v. Ajay Kumar and another [(2011) 1 SCC 343], the Hon'ble Supreme Court has laid down the heads under which compensation is to be awarded in personal injury cases and held:
"6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent MACA No. 2503/2015 15 disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)
(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
17. The injuries have permanently disabled the petitioner, thereby reducing his enjoyment of life and his ability to do the personal chores. Therefore, the petitioner is entitled for just and reasonable compensation under the head 'loss of amenities'. The petitioner was awarded only an amount of MACA No. 2503/2015 16 Rs.40,000/- under the head 'loss of amenities and enjoyment in life'. He has not preferred any appeal against the award. It is now trite that the appellate Court in appeal filed by the insurance company can enhance compensation without appeal or cross objection by the claimant in order to award just and reasonable compensation. The Apex Court in APSRTC represented by its General Manager v. M.Ramadevi and others [(2008) 3 SCC 379] has relying on the decision in Nagappa v. Gurudayal Singh [(2003) 2 SCC 274] held that High Court is justified in enhancing compensation when there is no appeal by the claimant. In Nagappa (supra), the Apex Court held as under:
"10. 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."
18. A Division Bench of this Court, in Special Grade Secretary, Kumaly Panchayath v. Maniammal and MACA No. 2503/2015 17 others [2017(5)KHC 606: 2017 (4) KLT 909], has held that even in the absence of appeal or cross objection by claimants, the appellate Court can invoke powers under Order 41 Rule 33 of the Code of Civil Procedure Code in order to ensure that 'just compensation' is awarded in the motor accident claims. The petitioner was aged only 21 years at the time of the accident. He was unmarried. The injuries have diminished his marriage prospects. The injuries have reduced his amenities and enjoyment of life and the full pursuit of all the activities he could do as a normal man prior to the accident. Therefore, the petitioner is entitled for a just and reasonable compensation under the head 'loss of amenities and enjoyment in life' and I find it just and proper to award an amount of Rs. 1,00,000/- under the said head. Since the petitioner has already been awarded an amount of Rs. 40,000/- under the said head, the petitioner will get an enhanced amount of Rs. 60,000/-.
19.Towards extra nourishment, though the petitioner claimed an amount of Rs. 20,000/-, only an amount of Rs. MACA No. 2503/2015 18 1000/- has been awarded by the Tribunal. The petitioner was in hospital for 22 days and considering the age of the petitioner and the injuries sustained, an amount of Rs. 20,000/- will be a just and reasonable compensation under the said head. After deducting an amount of Rs. 1000/-, the petitioner will be entitled for an enhanced amount of Rs.19,000/-.
20. Towards pain and sufferings, the Tribunal has awarded an amount of Rs.60,000/- as compensation. Taking note of the nature of injuries in Ext. A4 wound certificate, I fix Rs.80,000/- as compensation under the head 'pain and sufferings'. Therefore, the petitioner will be entitled for an enhanced amount of Rs.20,000/- under the said head.
21. I find that the amounts awarded other heads are just and reasonable.
22. In the result, the appeal is allowed holding that the petitioner is entitled for an amount of Rs. 17,87,316/- (Rupees Seventeen Lakhs Eighty Seven Thousand Three Hundred and Sixteen only) as compensation instead of Rs.19,18,316/- MACA No. 2503/2015 19 (Rupees Nineteen Lakhs Eighteen Thousand Three Hundred and Sixteen only) awarded by the Tribunal. The break up of the compensation re-fixed by this Court is as below:-
Heads Amount Amount Difference
awarded fixed by
by Tribunal this Court
Compensation for 30000 Nil -30000
loss of earnings
compensation for 30000 30000
loss of studies
Transport Expenses 2000 2000
Extra nourishment 1000 20000 +19,000
Damage to clothes 2000 2000
and articles
Bystander's 10000 10000
Expenses
Medical Expenses 561316 561316
Future Treatment 10000 10000
Expenses
Compensation for 60000 80000 +20000
pain and suffering
Compensation for 972000 972000
continuing
permanent disability
Compensation for 40000 100000 +60000
loss of amenities
and enjoyment in
life
Compensation for 0 0
MACA No. 2503/2015 20
loss of future
earnings
Compensation for 0 0
loss of skin
Compensation for 200000 Nil -200000
loss of future
prospects
Total 19,18,316 17,87,316 1,31,000
Pursuant to the order dated 18.09.2015 of this Court in I.A. No.3062 of 2015, the appellant had deposited Rs.10,00,000/- before the Tribunal. The petitioner was given liberty to withdraw the amount deposited. The appellant insurance company shall deposit the balance amount as modified by this Court with 9% interest per annum from the date of petition till date of deposit and costs before the Tribunal, within a period of two months from the date of receipt of a copy of this judgment.
Sd/-
MURALI PURUSHOTHAMAN JUDGE spc/