Kerala High Court
N.T.Balakrishnan vs Sahad on 22 March, 2021
CA Nos.2385 & 2604 of 2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943
MACA.No.2385 OF 2015(E)
AGAINST THE AWARD IN OP(MV)NO. 793/2013 DATED 28-04-2015 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR
APPELLANT/PETITIONER:
N.T.BALAKRISHNAN
AGED 43 YEARS
S/O.LATE RAMANKUTTY NAIR,
'BAASURI',THENHIPALAM POST,
TIRURANGADI TALUK,
MALAPPURAM DISTRICT
BY ADV. SRI.R.SREEHARI
RESPONDENT/RESPONDENTS:
1 SAHAD,AGED 22 YEARS
S/O.HAMSAKOYA, ANCHALANGAL HOUSE,
PERUVALLUR POST, PARAMBIL PEEDIKA,
MALAPPURAM DISTRICT, PIN 673638
2 MUHAMMED RAFEEQ
S/O.HASSAYIN, ATHRAPPIL HOUSE,
PARAMBIL PEEDIKA,
MALAPPURAM DISTRICT, PIN 676317
3 RELIANCE GENERAL INSURANCE COMPANY LTD
CITADAL ARCADE, 2ND FLOR,
R C ROAD, KOZHIKODE 673004
BY ADVS. SRI.GEORGE CHERIAN SR.
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 22.03.2021, ALONG WITH MACA.2604/2015, MACA.2604/2015(C), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CA Nos.2385 & 2604 of 2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943
MACA.No.2604 OF 2015
AGAINST THE AWARD IN OP(MV)NO. 793/2013 DATED 28-04-2015 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR
APPELLANT/3RD RESPONDENT:
RELIANCE GENRAL INSURANCE CO LTD
CALICUT, REPRESENTED BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, ERNAKULAM.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
RESPONDENT/RESPONDENTS:
N T BALAKRISHNAN
S/O (L) RAMANKUTTY NAIR,
BAASURI HOUSE, THENHIPALAM P.O.,
THENHIPALAM AMSOM DESOM,
THIRURANGADI TALUK,
MALAPPURAM - 673 121.
BY ADV. SRI.R.SREEHARI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 22.03.2021, ALONG WITH MACA.2385/2015(E), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
CA Nos.2385 & 2604 of 2015
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C.S.DIAS,J
------------------------
MACA Nos.2385 & 2604 of 2015
------------------------
Dated this the 22nd day of March, 2021
COMMON JUDGMENT
The appellant in MACA No.2385 of 2015 was the
petitioner in OP(MV)No.793 of 2015 on the file of the
Motor Accident Claims Tribunal, Tirur. The respondents
in the appeal were respondents in the claim petition. The
appellant in MACA No.2604 of 2015 - insurance
company - was the 3rd respondent in the claim petition.
The respondent in the said appeal was the claimant
before the Tribunal. As these appeals arise out of the
same award, they were consolidated and jointly heard
and are being disposed of by this common judgment. The
parties are, for the sake of convenience, referred to as
per their status in the original petition.
2. The petitioner had filed the claim petition
under Section 166 of the Motor Vehicles Act, 1988, inter
CA Nos.2385 & 2604 of 2015
alia, averring that : on 05.03.2013 while he was riding
his motorcycle bearing registration No. KL 10 R 3006
from Parambil Peedika - Kadapadi, when he reached
Poothumkutti, a goods autorickshaw bearing registration
No. KL 65 8354 (offending vehicle) driven by the 1st
respondent in a rash and negligent manner, hit the
motorcycle driven by the petitioner. As a result of the
accident, the petitioner sustained serious injuries. The
offending vehicles was owned by the 2nd respondent and
insured with the 3rd respondent. The petitioner was
employed as High School Assistant (Mathematics) in
Government Higher Secondary School, Peruvallur and
he was drawing a salary of Rs.28,148/-. The petitioner
was treated at the Medical College Hospital, Kozhikode
and, thereafter, at the Christian Medical College, Vellur.
He was admitted as an in-patient on 05.03.2013 and
discharged on 09.05.2013, then was admitted on
10.05.2013 and discharged on 20.07.2013 and thereafter
was admitted on 30.08.2013 and discharged on
CA Nos.2385 & 2604 of 2015
11.09.2013. The petitioner has become totally bedridden
and cannot move without the help of the bystander. The
petitioner is suffering from severe mental agony and
depression and has loss of memory. The respondents 1 to
3 are jointly and severally liable to pay compensation to
the petitioner, which he quantified at Rs.93,33,000/-, but
restricted to Rs.90,00,000/-
3. The 1st respondent entered appearance and
filed a written statement admitting that he was the
driver of the offending vehicle. However, he denied that
there was any negligence on his part. According to him,
the accident occurred due to the negligence on the part
of the petitioner.
4. The 2nd respondent remained absent and he was
set ex-party.
5. The 3rd respondent filed a written statement
admitting that the offending vehicle had a valid
insurance policy, but denied its liability on the ground
that the accident occurred due to the negligence on the
CA Nos.2385 & 2604 of 2015
part of the petitioner. It is also contended that the 1 st
respondent did not hold a valid driving license, hence
there was a violation of the policy condition. Also, the
petitioner was not wearing a helmet as per the statutory
requirement under the Motor Vehicles Act, 1988. Hence,
the 3rd respondent prayed that the claim petition be
dismissed.
6. The petitioner examined two witnesses as PWs
1 and 2 and Exts.A1 to A18 were marked through them
in evidence. The respondents marked Exts.B1 and B2 in
evidence. The 3rd party documents were marked as Exts.
X1 and X2. The Doctor of the Medical Board, who
counter signed and marked Ext.C1 permanent disability
certificate, was examined as CW1.
7. The Tribunal, after analysing the pleadings and
materials on record, by the impugned award allowed the
claim petition, in part, by holding that the petitioner was
entitled for a compensation of Rs.30,15,212/- with
interest at the rate of 9% per annum from the date of
CA Nos.2385 & 2604 of 2015
petition till the date of realisation and proportionate
costs. The 3rd respondent was directed to pay the
compensation amount.
8. Dissatisfied with the quantum of compensation
awarded by the Tribunal the petitioner has filed MACA
No.2385 of 2015 and aggrieved by the quantum of
compensation awarded by the Tribunal, the 3 rd
respondent has filed MACA No.2604 of 2015.
9. Heard Sri.R.C.Sreehari, the learned Counsel
appearing for the petitioner and Sri.Geroge Cherian, the
learned Senior Counsel appearing for the 3rd respondent
- Insurance Company.
10. The learned Counsel for the petitioner argued
that the quantum of compensation awarded by the
Tribunal was considerably low. The petitioner had
actually claimed an amount of Rs.90,00,000/- as
compensation, but the Tribunal has only awarded an
amount of Rs.30,15,212/-. According to him, the Tribunal
has not taken into account the permanent disability of
CA Nos.2385 & 2604 of 2015
the petitioner, which was assessed by the Medical Board
as per Ext.C1 at 73%. Similarly, the Tribunal has
awarded compensation under the head 'loss of earnings'
at only Rs.3,36,000/-, which again is on the lower side,
especially taking note of the fact that the petitioner has a
permanent disability of 73%. It was also contended that
the amount awarded by the Tribunal towards future
treatment was on the lower side. The Tribunal has
limited the compensation under the head 'pain and
sufferings' at Rs.1,00,000/- instead of Rs,2,00,000/-
claimed by the petitioner. Therefore, he sought for
enhancement of the quantum of compensation.
11. Sri.George Cherian, the learned Senior
Counsel for the 3rd respondent, per contra, contended
that the quantum of compensation awarded by the
Tribunal is excessive. He took me through the oral
testimonies of PWs 1 and 2 and contended that they have
admitted in unequivocal terms that the petitioner is now
attending his work as a High School Assistant.
CA Nos.2385 & 2604 of 2015
Therefore, the petitioner cannot be said to be having any
permanent disability as fixed by the Tribunal at 50%.
According to him, the assessment made by the Tribunal
is erroneous because the petitioner is not having any
disability and is earning his monthly salary as prior to
the accident. He further argued that the petitioner has
admittedly received an amount of Rs.3,28,104/- as per
the Medi-Claim Insurance policy, therefore, the amount
of Rs.4,75,212/- awarded by the Tribunal under the said
head is unsustainable in law. The petitioner has received
reimbursement, as per the medi-claim policy, of
Rs.3,28,104/-, which has to be deducted. It was also
contended that the loss of earnings fixed by the Tribunal
at Rs.28,000/- for the period of 12 months is on the
higher side, especially since the Tribunal has not
deducted any amount towards income tax as well as the
personal living expenses of the petitioner. Moreover, the
Tribunal has given compensation under two heads
namely towards the 'bystander expenses' and 'loss of
CA Nos.2385 & 2604 of 2015
earnings' of the petitioner's wife (PW1) at Rs.96,000/-.
He prayed that the quantum of compensation awarded
by the Tribunal has to be reduced as contended above.
12. A Constitution Bench of the Hon'ble Supreme
Court in National Insurance Company Ltd. v. Pranay
Sethi [(2017) 16 SCC 680], has 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 standards. The
conception of 'just compensation' has to be viewed
through the prism of fairness, reasonableness and non-
violation of the principle of equitability.
13. There is no dispute with regard to the accident
that occurred and the injury sustained by the petitioner.
Ext.A4 final report filed by the police after investigation
proves that the accident occurred solely due to the
negligence on the part of the 1st respondent. Exts.A5 to
A7 discharge summaries establish that the petitioner
CA Nos.2385 & 2604 of 2015
was treated as an in-patient for a period of 198 days in
three different hospitals. Ext.C1 disability certificate
proves that the petitioner has a permanent disability of
73%. Like wise, Ext.A8 salary certificate substantiates
that the petitioner was drawing a monthly salary of
Rs.28,000/-. Similarly, Ext.A16 salary certificate pertains
to the salary that was being drawn by the petitioner's
wife (PW1). It was after the evaluation of all these
documents that the Tribunal fixed the quantum of
compensation.
14. The principal area of dispute in these appeals is
the compensation awarded by the Tribunal under the
head loss due to disability with future prospects.
Multiplier
15. As seen from the oral testimony of PWs 1 and 2,
the petitioner is still continuing to go for work.
Therefore, eventhough the petitioner has 73% of
disability, he does not have any loss in his income. In
such circumstances, the loss due to disability with
CA Nos.2385 & 2604 of 2015
future prospects can only he calculated after the
superannuation of the petitioner at '56' years of age.
Admittedly, the petitioner, as on the date of accident, was
only 43 years. Therefore, the loss due to permanent
disability of the petitioner can be calculated after the
petitioner attains the 56 years. Then the relevant
multiplier would be '9'.
Future prospects
16. Going by the law laid down by the Hon'ble
Supreme Court in Pappu Deo Yadav v. Naresh Kumar
and Others (AIR 2020 SC 4424) and a host of decisions
on the point, the petitioner is entitled for future
prospects, after his retirement. Thus, the petitioner is
entitled for compensation under the head 'loss due to
disability with future prospects' after superannuation. As
already held, then the relevant multiplier would be '9'.
However, after the retirement of the petitioner, he would
only earn 50% of the salary than what he is presently
drawing. Hence, I re-fix the petitioner's income after the
CA Nos.2385 & 2604 of 2015
retirement age, at Rs.12,500/- instead of 28,500/- that is
after the statutory deductions including income tax.
Accordingly, I re-assess and re-fix the compensation
under the head 'loss due to disability with future
prospects' at Rs.11,33,325/- instead of Rs.60,80,000/-
awarded by the Tribunal.
Loss of earnings
17. The Tribunal has awarded an amount of
Rs.3,36,000/- under the head 'loss of earnings'. The
Tribunal loss sight of the decision of the Hon'ble
Supreme Court in National Insurance Company v.
Indira Srivastava [2008(1) KLT 62 (SC)] and
Kalpanaraj and Others v. Tamil Nadu State
Transport Corporation [2015) 2 SCC 764 (DB)]
wherein, it has been held that the statutory deductions
particularly, income tax has to be taken into account
while arriving at the income of the victim/deceased. In
the said circumstances, taking into consideration the fact
that the petitioner was drawing a salary of Rs.28,500/-
CA Nos.2385 & 2604 of 2015
minus 10% towards statutory deductions, I hold the
petitioner's net income can be fixed at Rs.25,000/- per
month. More over, 1/3rd of the amount would also have to
be deducted towards living expenses of the petitioner.
Therefore, I re-fix and re-assess the salary of the
petitioner, after the aforesaid statutory deductions and
personal expenses, at Rs.20,000/- per month.
Accordingly, the petitioner is entitled for loss of earnings
for a period of 12 months at the rate of Rs.20,000/-,
which comes to Rs.2,40,000/-
Medical Expenses.
18. The Tribunal awarded the petitioner
Rs.4,47,212/- towards medical expenses based on
Ext.A11 series medical bills and Ext.A12 series receipts
produced before the Tribunal. Admittedly, the petitioner
had received a reimbursement of Rs.3,28,104/- under the
medi-claim policy. The petitioner cannot obtain double
benefit. Hence, the amount of Rs.3,28,104/- received
under the medi-claim policy has to be deducted from the
CA Nos.2385 & 2604 of 2015
total medical expenses incurred by the petitioner.
Therefore, I re-fix the medical expenses of the petitioner
at Rs.1,47,108/-.
Loss of salary of petitioner's wife
19. The tribunal awarded an amount of Rs.96,000/-
towards loss of salary of the petitioner's wife. It is proved
by Annexure A16 salary certificate that the petitioner's
wife was drawing a monthly salary of Rs.32,708/- as she
was employed as an Higher Grade Assistant in LIC of
India. It is proved that the petitioner's wife (PW1) was
looking after him for a period of 88 days, while the
petitioner was treated as an in-patient . In such
circumstances, the Tribunal fixed an amount at
Rs.96,000/- towards loss of salary. I find the fixation of
compensation under the said head to be reasonable and
just.
Bystander expenses
20. Now coming to the bystander expenses. It is
proved that the petitioner was treated as an in-patient
CA Nos.2385 & 2604 of 2015
for a period of 198 days. After deducting 88 days
wherein he was looked after by his wife - PW1, the
petitioner continued to be hospitalised for 110 days.
Therefore, I re-fix bystander expenses, considering that
the accident was in the 2013, at Rs.500/- per day.
Accordingly, I fix the bystander expenses at Rs.55,000/-.
Other heads of claim
21. With respect to the other heads of claim
namely transport, clothing, extra nourishment, pain and
sufferings, loss of amenities and future treatment, I find
that the Tribunal has awarded reasonable and just
compensation.
22. On an overall re-appreciation of the pleadings,
materials on record and the law laid down by the Hon'ble
Supreme Court in the afore-cited decisions, I am of the
firm opinion that the impugned award has to be modified
and the petitioner is entitled for compensation as
modified and recalculated above and given in the table
below for easy reference.
CA Nos.2385 & 2604 of 2015
Sl. Heads of claim Amount awarded by the Amounts modified
No Tribunal (in rupees) and recalculated
by this Court
1 Loss of earnings 3,36,000/- 2,40,000/-
2 Transport 25,000,/- 25,000/-
3 Clothing 3,000/- 3,000/-
4 Bystander expenses 50,000/- 55,000/-
5 Extra nourishment 50,000/- 50,000/-
6 Medical expenses 4,75,212/- 1,47,108/-
7 Pain and sufferings 1,00,000/- 1,00,000/-
8 Loss of amenities 1,00,000/- 1,00,000/-
9 Future treatment 1,00,000/- 1,00,000/-
10 Loss due to disability 16,80,000/- 11,33,235/-
11 Loss of earning power 96,000/-
30,15,202/- 19,53,345/-
In the result, the appeals are disposed of, by
modifying the impugned award passed by the Tribunal
and re-fixing the compensation at Rs.19,53,345/- i.e, by
reducing the compensation awarded by the Tribunal by
Rs.10,61,867/-. The third respondent/insurance company
shall pay the re-fixed compensation of Rs.19,53,345/-
with interest at the rate of 9% per annum from the date
of petition till the date of payment with proportionate
costs within a period of two months from the date of
receipt of a certified copy of this judgment. The Tribunal
CA Nos.2385 & 2604 of 2015
shall disburse the compensation to the petitioner with
proportionate interest and costs in accordance with law.
Sd/-
C.S.DIAS,JUDGE
dlk 24.03.2021
