Kerala High Court
Shajahan vs Binu on 3 October, 2024
Author: V.G.Arun
Bench: V.G.Arun
2024:KER:73975
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
MACA NO. 3769 OF 2019
AGAINST THE ORIGINAL AWARD DATED 15.03.2019 IN OPMV
NO.216 OF 2016 AND MODIFIED AWARD IN IA NO.2241/2019 IN
OPMV 216/16 DATED 26.6.2019 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL
APPELLANT/APPLICANT:
SHAJAHAN,
AGED 22 YEARS
S/O.JALEEL, SHIJI VILLA, PERUMKULAM, KEEZHATTINGAL
VILLAGE, THIRUVANANTHAPURAM.
BY ADV M.R.SARIN
RESPONDENTS/RESPONDENTS:
1 BINU,
S/O.SAVITHRI, NEDIYAVILA, PUTHEN VEEDU,
VANCHIYOOR, ALAMCODE, TRIVANDRUM, PIN - 695 102.
2 SHAJI,
S/O.VISWANATHAN, NEDIYAVILA VEEDU KADAVILA,
VANCHIYOOR, TRIVANDRUM, PIN - 695 035.
2024:KER:73975
MACA.No.3769/2019 &CO 30/21
2
3 THE NEW INDIAN ASSURANCE CO.LTD.,
MOTOR 3RD PARTY CLAIMS HUBS, GOVT PRESS ROAD
STATUE, THIRUVANANTHAPURAM, PIN- 695 035.
BY ADVS.
SHRI.SURESH SUKUMAR
SRI.LAL K.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 19.06.2024,ALONG WITH CO NO.30/2021, THE COURT ON
03.10.2024 DELIVERED THE FOLLOWING:
2024:KER:73975
MACA.No.3769/2019 &CO 30/21
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CO NO. 30 OF 2021
IN
MACA NO.3769 OF 2019
AGAINST THE AWARD IN OP(MV) NO.216/2016 OF MACT,
ATTINGAL
CROSS OBJECTOR:
NEW INDIA ASSURANCE COMPANY LTD.
MOTOR 3RD PARTY CLAIM HUB, GOVERNMENT PRESS ROAD,
STATUE, THIRUVANANTHAPURAM REPRESENTED BY ITS
ASSISTANT MANAGER, REGIONAL OFFICE, M.G ROAD,
EERNAKULAM PIN 682 011
RESPONDENTS:
1 SHAJAHAN
S/O. JALEEL, KEEZHATTINGAL VILLAGE,
THIRUVANANTHAPURAM 695 102
2 BINU,
NEDIYAVILA PUTHEN VEEDU, VANCHIYOOR, ALOAMCODE,
THIRUVANANTHAPURAM 695 035
2024:KER:73975
MACA.No.3769/2019 &CO 30/21
4
3 SHAJI
NEDIYAVILA VEEDU, KADAVIL, VANCHIYOOR,
THIRUVANANTHAPURAM 695 035
BY ADV M.R.SARIN
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 19.6.2024, ALONG WITH MACA.3769/2019, THE COURT ON
3.10.24 DELIVERED THE FOLLOWING:
2024:KER:73975
MACA.No.3769/2019 &CO 30/21
5
V.G.ARUN, J
= = = = = = = = = = = = = = = = =
M.A.C.A.No.3769 of 2019
=======================
Dated this the 3rd day of October, 2024
JUDGMENT
On 1.12.2015, the ill fated day, the appellant suffered grave injuries in a road traffic accident. The appellant was aged only 19 years at the time of the accident and was a BBA student. He was also earning some income, by working as a newspaper boy. The appellant approached the Motor Accidents Claims Tribunal claiming Rs.1,71,02,000/- as compensation and limited the claim to Rs.1,00,00,000/- for the purpose of court fee. The Tribunal initially awarded Rs.53,01,770/- as compensation. Thereafter, the appellant moved a review petition, pointing out that the Tribunal had omitted to take note of the Medical Board's certificate, assessing the appellant to be having 100% disability. That 2024:KER:73975 MACA.No.3769/2019 &CO 30/21 6 review petition was allowed by the Tribunal and the compensation enhanced to Rs.79,01,200/-. Thereafter, the Insurance Company filed another review petition, disputing the medical expenses to the tune of Rs.3,84,350.51, out of the total sum of Rs.40,00,100/- awarded under that head. The review petition filed by the insurer was also allowed and Rs.1,57,200/- deducted from the compensation awarded. Later, the Insurance company filed another review petition, contending that out of the compensation awarded towards medical expenses, Rs.20,15,200/- is not expenditure incurred by the appellant, since the bill for 8 items were not issued in the appellant's name and for 2 items, only proforma invoices were produced. Even though the Tribunal came to the conclusion that the award is liable to be reviewed, the review petition was dismissed, as this appeal was filed by that time.
2. Heard, learned counsel for the appellant and the learned standing counsel for the Insurance Company.
3. The fact that the appellant suffered grave injuries in a road traffic accident and the offending vehicle had valid policy 2024:KER:73975 MACA.No.3769/2019 &CO 30/21 7 are admitted. The dispute is only with respect to the quantum of compensation awarded. Learned Counsel for the appellant contended that the Tribunal had grossly erred in fixing the appellant's monthly income at Rs.8000/-, as against the income Rs.10,000/- per month claimed by him. Further, the compensation granted towards bystander expenses, extra nourishment, transportation to hospital, pain and suffering as well as loss of amenities in life are on the lower side, considering the gravity of the injuries and its impact on the appellant's life. Placing reliance on the Division Bench decision of this Court in Minor Basid v. K.C.Sanu and Another [2018 (2) KHC 671], it is contended that the appellant is liable to be compensated for shortened expectation of life also.
4. Learned Standing Counsel for the Insurance Company pointed out that the insurer has filed a cross objection, aggrieved by the award of an excess amount of Rs.20,20,327/- towards medical expenses, based on documents which were not sufficient to substantiate the claim. It is submitted that, 2024:KER:73975 MACA.No.3769/2019 &CO 30/21 8 two among those bills are only proforma invoices pertaining to supportive equipment and no bill or other document was produced to prove actual purchase of those devices. Moreover, after finding substance in the challenge made through a review petition, the Tribunal had refrained from reviewing the award only due to the pendency of this appeal. It is hence contended that the cross objection ought to be allowed and the excess amount, paid towards medical expenses, deducted from the total compensation.
5. The challenging question to be answered is regarding the inadequacy or otherwise of the compensation awarded to a young boy, whose hopes and aspirations about life got shattered by the accident. Adding to the appellant's woes, his mother died within two days of the accident, presumably from the shock of seeing the broken body of her son and the apprehension that he may succumb to the injuries. Ext.A7 discharge summary issued from the KIMS Hospital, wherein the appellant was under treatment from 11.12.2015 to 01.01.2016, reveals the gravity of the injuries sustained by 2024:KER:73975 MACA.No.3769/2019 &CO 30/21 9 him. The contextually relevant portion of Ext.A7 reads as under:-
"Mr Shajahan was brought to our ER with history of RTA. He had a depressed skull fracture in the midline and cervical spinal cord injury with bony instability. His neurological status deteriorated with respiratory compromise hence he was intubated and ventilated. His imaging showed subluxation of the C5 vertebrae with severe cord compression at this level. CT scan of the brain showed multiple small contusions in left frontal region with skull fracture. X ray of the right shoulder showed fracture of proximal humerus. As the skull fracture ran across the midline, it was decided to treat the compound depressed fracture conservatively. He was taken up for emergency surgery on 11- 12-15. He underwent C4-6 laminectomy with posterior instrumentation and fusion with scalp wound exploration under GA on 11-12-15. Orthopedicians advised conservative management for his right humerus fracture in view of his neurological status. Postoperatively he was electively ventilated and he underwent a tracheostomy by ENT surgeons on 16-12-15. He was gradually weaned of the ventilator. Postoperatively he had improvement in the upper limb power to about grade 2-3/5, however the lower limb power remained at 0/5. He had a sensory level at T4. He developed respiratory tract infection for which a Pulmonology consultation was done and managed accordingly. He was decannulated on 28-12-15 in consultation with respiratory doctors and ENT surgeons. He had intractable diarrhoea form which he developed superficial ulcer in the gluteal region which was healing at the time of 2024:KER:73975 MACA.No.3769/2019 &CO 30/21 10 discharge. General surgeons advised conservative management."
6. Ext.A14 discharge summary issued by the PARCHOSPITAL, where the appellant was treated as inpatient from 06.10.2017 to 06.03.2018 reveals that he is quadriplegic and has complete paralysis of lower limbs, loss of sitting balance and sensory disturbances on lower limbs, plus bladder and bowel dysfunction. The advice on discharge was to continue exercises, breathing exercises and to frequently change positions to avoid bed sores. After being discharged on 06.03.2018, the appellant was again admitted in the same hospital on 10.03.2018 and continued as inpatient up to 28.07.2018. His condition on discharge as noted in Ext.A15, is mild improvement in sensation on lower limbs and slight improvement in sitting balance. The above documents show that the appellant is in a vegetative state from the date of his accident.
7. As has been often observed, money is no substitute for a broken physical frame and a shattered future. Money can, at 2024:KER:73975 MACA.No.3769/2019 &CO 30/21 11 best, compensate for the loss of earnings, earning power, cost of treatment, nursing, attendance etc. The vexing question faced by courts and tribunals is as to how best the victim can be compensated. As held by the Apex Court in Benson George v. Reliance General Insurance Co. Ltd. and others [(2023) 3 SCC 439], in its very nature, whenever a tribunal or court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But, all the aforesaid elements have to be viewed with objective standards. The attempt of this Court is also to determine the just and fair compensation payable to the appellant, based on the facts and the medical records.
8. The appellant was only 19 years old at the time of accident and was studying for BBA. Along with his studies the appellant had also taken up a part-time job as a newspaper boy and, according to him, was earning Rs.10,000/- per month from that job. As no evidence was produced to prove the 2024:KER:73975 MACA.No.3769/2019 &CO 30/21 12 appellant's income, the Tribunal fixed the monthly income as Rs.8,000/-. In this context, it will be profitable to refer the Apex Court's decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236]. The facts of that case reveals that, according to the claimant therein, he was earning Rs.4500/- per month when the accident occurred in the year 2004. In the absence of evidence to prove income, the Tribunal fixed the claimant's monthly income as Rs.3000/- and the said finding was upheld by the High Court. While allowing the appeal filed by the claimant, the Apex Court found fault with the Tribunal for fixing the monthly income at Rs.3000/-, considering that the wages of labourers in the year 2004 was between Rs.100/- to Rs.150/- per day or Rs.4500/- per month. This Court in Soman v. Jinesh James and others [ILR 2020 (3) Kerala 1003] has fixed the notional income of a coolie in the year 2010 at Rs.7500/- per month. Taking guidance from the above decisions, I find the appellant's claim of having earned Rs.10,000/- per month, by working as a newspaper boy, to be 2024:KER:73975 MACA.No.3769/2019 &CO 30/21 13 reasonable. In the light of the law laid down in National Insurance Company Limited v. Pranay Sethi and others [(2017) 16 SCC 680], 40% of the monthly income is to be added as future prospects. Thus calculated, the monthly income of the appellant would be Rs.14,000/-. The compensation awarded by the Tribunal towards loss of earning and for permanent and continued disability are hence reworked as under:-
Loss of earning - Rs.10,000x 12= Rs.1,20,000/-
Permanent and continued disability - Rs.14,000x12x18x100% = Rs.30,24,000/-
9. While considering the challenge against grant of only Rs.3,00,000/- towards bystanders expenses, it is to be borne in mind that the appellant is completely bedridden and requires the service of a bystander day and night, throughout his life. On a reasonable assumption, the average amount to be paid for availing the service of a bystander will be at least Rs.6,000/- per month, taking into account the future increase also. In Kajal v. Jagdish Chand and others [(2020) 4 SCC 413], the 2024:KER:73975 MACA.No.3769/2019 &CO 30/21 14 Apex Court has, under similar circumstances, fixed the attendant charges by taking '18' as the multiplier. Following the same method, the bystander (attender) expenses is reworked as under;
Rs.6000x12x18 = Rs.12,96,000/-
10. The next contention is regarding grant of only Rs.1,50,000/- towards loss of amenities and failure to grant compensation for shortened expectation of life. This contention cannot be countenanced, since just compensation is awarded for loss of future earning capacity due to permanent disability. The above view is in tune with the decision of the Apex Court in Rajkumar v. Ajay Kumar and Another [(2011) 1 SCC 343], wherein it is held that, when compensation is awarded by treating the loss of future earning capacity as 100%, the need to award compensation separately under the head of loss of amenities or loss of expectation to life may disappear and as a result, only a token or nominal amount may have to be awarded under those heads, as otherwise there may be a duplication in the award of compensation.
2024:KER:73975 MACA.No.3769/2019 &CO 30/21 15
11. The other contention to be dealt with is regarding the quantum of compensation granted for pain and suffering. The numerous surgeries undergone by the appellant, including laminectomy with scalp wound exploration and tracheostomy, are indicative of the excruciating pain and prolonged suffering which the appellant would have undergone. In fact, the survival of the appellant, in spite of the extensive injuries suffered by him, is nothing short of a miracle. He is even now confined to bed and dependent on others for even his basic needs. Therefore, the appellant's suffering is unending. Added to this is the shock and trauma of having lost his mother in the aftermath of the accident. Taking all the above factors into consideration, the appellant is found entitled for Rs.10,00,000/- as compensation towards pain and suffering. In arriving at that figure, this Court was guided by the decision of the Apex Court in Benson George (supra).
12. As just compensation has been awarded under all other heads, the amounts are maintained as such.
2024:KER:73975 MACA.No.3769/2019 &CO 30/21 16
13. Based on the above discussion, the enhanced compensation is computed as under-
Sl. Head of claim Amount Total amount Enhanced
No. awarded by after compensation
the enhancement
Tribunal in appeal
Rs. Rs. Rs.
1 Loss of 96,000/- 1,20,000/- 24,000/-
earnings
2 Permanent 24,19,200/- 30,24,000/- 6,04,800/-
and continued
disability
3 Bystander 3,00,000/- 12,96,000/- 9,96,000/-
Expenses
4 Pain and 2,00,000/- 10,00,000/- 8,00,000/-
suffering
Total Rs.24,24,800/-
14. Now, to the contention of the Insurance Company that, out of the Rs.40,01,000/- granted towards medical expenses, Rs.20,20,327/- was not actually expended for the appellant's treatment. This argument is mainly based on two proforma invoices of Rs.6,70,000/- and Rs,13,45,200/- submitted along with the bills. Here, it is to be noted that the award was once reviewed at the instance of the appellant and 2024:KER:73975 MACA.No.3769/2019 &CO 30/21 17 again, based on a review petition filed by the Insurance Company. Even in that review petition, the Insurance Company did not raise the contention regarding unacceptability of the proforma invoices. The proforma invoices, Sl.Nos.145 and 146 in Ext.A21 series, are with respect to equipment named 'NEO intelect interface' and 'ARTROMOT-SP3 Ankle Joint CPM'. They are advanced rehabilitation equipment recommended by the expert at the PARCHOSPITAL, as evident from Ext.A17 letter. Therefore, the mere absence of bills cannot lead to the presumption that the equipment were not purchased. Even otherwise, repeated review petitions cannot be entertained, as such procedure will affect the finality of judgments and awards. The insurer cannot also be permitted to challenge the award by raising a factual contention for the first time through its cross objection. which was not urged before the Tribunal.
In the result, the appeal filed by the claimant is allowed and the cross objection filed by the insurance company is dismissed. The appellant/claimant is found entitled to 2024:KER:73975 MACA.No.3769/2019 &CO 30/21 18 additional compensation of Rs.24,24,800/- (Rupees twenty four lakhs twenty four thousand and eight hundred only), with interest at the rate of 9% per annum from the date of petition till realisation. The 3rd respondent shall pay the additional compensation together with interest, within three months of receipt of a certified copy of this judgment, after deducting the liability, if any of the appellant, towards balance court fee and legal benefit fund.
sd/-
V.G.ARUN, JUDGE sj