Kerala High Court
The Oriental Insurance Co.Ltd vs Arjun Krishna on 10 August, 2022
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
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
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
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.
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
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:
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
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."
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
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
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.
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
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
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
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
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
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.
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/-
(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
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/
