Kerala High Court
Shini @ Shini Babu vs R.Viruthan And Another on 14 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
MACA NO. 2516 OF 2010
AGAINST THE AWARD DATED 09.09.2009 IN OPMV 592/2004 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM
APPELLANT/APPLICANT:
SHINI @ SHINI BABU
AGED 30, T.C.11/1159(2),, VARDHA LAKSHMI VILAKOM
THOPPIL VEEDU,, CHARACHIRA, NANTHANCODE,
KOWDIAR,, THIRUVANANTHAPURAM.
BY ADV R.T.PRADEEP
RESPONDENTS/RESPONDENTS:
1 R.VIRUTHAN
2/136, CHOLAMANDAL ARTIST,, INJAMBAKKAM, CHENNAI
600041.
2 UNITED INDIA INSURANCE COMPANY LTD.
REPRESENTED BY ITS MANAGER,, S.N.S.COMPLEX,
S.B.ROAD,, ADAYAR, CHENNAI-20.
BY ADV SMT.DEEPA GEORGE for R2
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 24.05.2022, THE COURT ON 14.06.2022 DELIVERED
THE FOLLOWING:
M.A.C.A.No.2516/2010
2
M.R.ANITHA, J
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M.A.C.A.No.2516 of 2010
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Dated this the 14th day of June, 2022
JUDGMENT
The appeal has been filed against the award passed in
O.P.M.V No.592/2004 on the file of Motor Accidents Claims
Tribunal, Thiruvananthapuram (in short 'Tribunal'). The claim
petition has been filed under Section 166 of Motor Vehicles Act,
1988 (in short 'the Act') for the injury sustained by the
appellant/claimant in a motor accident occurred on 18.02.2004 at
about 12.20 p.m near Kowdiar due to hit by motorcycle bearing
Reg.No.TMD-4296. It is alleged that the accident happened due
to the rash and negligent riding of the motorcycle by the 1 st
respondent who is the registered owner of the vehicle. 2 nd
respondent is the insurer. The appellant claimed a total
compensation of Rs.2,50,000/-.
M.A.C.A.No.2516/2010
2. Before the Tribunal 1st respondent remained ex parte.
2nd respondent filed written statement admitting policy coverage
with respect to the offending vehicle. But the compensation
claimed is contended to be excessive and exorbitant.
3. This claim petition was tried along with O.P (M.V)
No.589/2004 and a common award was passed. Exts.A1 to A11
were marked from the side of the claimants in both cases. There
was no oral evidence from either side.
4. The Tribunal, on evaluating the pleadings as well as
documents found that the 1 st respondent/rider of the motorcycle
is responsible for the accident. 2nd respondent is directed to
indemnify the insured/the first respondent. A total compensation
of Rs.1,07,420/- was awarded.
5. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the appellant approached this Court in
appeal on various grounds stated in the memorandum of appeal.
6. Adv.Deepa George appears for the second respondent.
Notice as against the first respondent is dispensed with. Lower
M.A.C.A.No.2516/2010
court records were called for and both sides were heard.
7. According to the learned counsel for the appellant, the
appellant was an Engineering student pursuing her 4 th semester
at the time of accident. Notional income taken by the Tribunal at
Rs.2,000/- per month for computing the disability, is very low.
It is also contended that the amount awarded towards bystander
expenses as well as extra nourishment are low and hence he
seeks for enhancement of compensation on the above heads.
8. Learned counsel placed reliance on the decisions in
Arvind Kumar Mishra v. New India Assurance Co. Ltd.
[(2010) 10 SCC 254], Ashvinbhai Jayantilal Modi v.
Ramkaran Ramchandra Sharma : (2015) 2 SCC 180,
Basanti Devi and Ors. V. Divisional Manager, The New
India Assurance Company Ltd. And Ors : 2022 ACJ 823 :
MANU/SC/1333/2021 to support his contentions.
9. Learned counsel for the respondent contended that
appellant claimed Rs.3,000/- as the monthly income. Hence there
is no requirement to enhance the income. She would also
M.A.C.A.No.2516/2010
contend that a just and reasonable compensation has already
been awarded by the Tribunal and hence no interference is called
for at the instance of this court.
10. The main issue is with regard to the assessment of the
income of the appellant who was a student doing 4 th semester
B.Tech Computer Science and Engineering course at the time of
accident. Ext.A9 is the certificate issued by the Principal, Muslim
Association College of Engineering, Venjaramoodu,
Thiruvananthapuram. The Tribunal taken the income notionally as
Rs.2,000/- per month for computing the disability. According to
the learned counsel for the appellant, the monthly income taken
by the Tribunal is far below the actual income to be taken as far
as an engineering student is concerned. Learned counsel in this
context relies on Arvind Kumar Mishra referred above. That
was a case of sustaining permanent disablement of 70% out of a
motor accident to the claimant therein who was a final year
mechanical engineering student in Birla Institute of Technology,
Mesra (B.I.T.) at the time of accident occurred on 23.06.1993.
M.A.C.A.No.2516/2010
He was examined himself and tendered some of the doctors who
treated him in evidence. The Tribunal awarded a lump sum
compensation of Rs.1,00,000/- to the claimant towards
inconvenience, hardship, discomfort disappointment and mental
stress throughout the life. A total compensation of Rs.2,50,000/-
was awarded by the Tribunal against which the claimant
approached the High Court of Jharkhand, Ranchi and High Court
increased the amount of compensation from Rs.2,50,000/- to
Rs.3,50,000/-. Dissatisfied with the quantum of compensation
the claimant approached the Apex Court. Paragraph 10 of the
said judgment is relevant in this context to be extracted which
reads thus:
"In some cases for personal injury, the claim
could be in respect of lifetime's earnings lost
because, though he will live, he cannot earn his
living. In others, the claim may be made for
partial loss of earnings. Each case has to be
considered in the light of its own facts and at
the end, one must ask whether the sum
awarded is a fair and reasonable sum. The
M.A.C.A.No.2516/2010
conventional basis of assessing compensation in
personal injury cases - and that is now
recognised mode as to the proper measure of
compensation - is taking an appropriate
multiplier of an appropriate multiplicand."
11. The claimant in that case was a final year Engineering
(Mechanical) student in a reputed college and he was a
remarkably brilliant student having passed all his semester
examinations in distinction. Due to the injuries out of the
accident, he remained in coma for about two months and his
studies got interrupted as he was moved to different hospitals for
surgeries and other treatments. For many months his condition
remained serious and his right hand was amputated and vision
seriously affected. The multiple injuries ultimately led to 70%
permanent disablement and he has rendered incapacitated and a
career ahead of him in his chosen line of Mechanical Engineering
got dashed for ever and he requires a domestic help throughout
his life. He has been deprived of pecuniary benefits which he
could have reasonably acquired had he not suffered permanent
disablement to the extent of 70% in the accident. So, presuming
M.A.C.A.No.2516/2010
that after completing the Bachelor of Engineering (Mechanical)
from a prestigious institute like BIT, it can be assumed that he
would have got a good job and during his evidence he deposed
that he was selected in campus interview by Tata as well as
Reliance Industries and offered pay package of Rs.3,50,000/- per
annum. For want of evidence that was not accepted and it was
found that even otherwise, it would have been difficult for him to
get some decent job in private sector and had he decided to join
Government service and got selected, he would have been put in
the pay scale for Assistant Engineer and would have at least
earned Rs.60,000/- per annum. Wherever he joined he would
have a fair chance of promotion and remote chance of some high
position. Taking all those factors into account, Apex Court found
it fair and reasonable to assess his future earnings at Rs.60,000/-
per annum. Taking the salary and allowances payable to an
Assistant Engineer in public employment as the basis and out of
his future earnings 30% was discounted and estimated the
multiplicand as Rs.42,000/- per annum and a multiplier of 18 was
M.A.C.A.No.2516/2010
applied and the amount was fixed at Rs.7,56,000/- towards
disability.
12. Learned counsel would contend that the appellant in
this case was also a 4 th semester B.Tech student in an
Engineering College and applying that principles in an accident
occurred on 23.06.1993, according to him, by giving 500
enhancement per year to the said amount, the monthly income
of the appellant ought to have been taken as Rs.10,500/- per
month.
13. Learned counsel also brought to my attention
Ashvinbhai Jayantilal Modi referred above wherein in an
accident occurred on 12.07.2002 with respect to a medical
student, the monthly income has been taken as Rs.25,000/- per
month, I.e Rs.3,00,000/- per annum. It was taken into account
that the deceased was an intelligent and outstanding student of
medicine who could have pursued his MD after his graduation and
reached greater heights. Medical practice is one of the most
sought after and rewarding profession and tremendous increase
M.A.C.A.No.2516/2010
in demand for medical professionals, their salaries are also on the
rise and accordingly, Rs.25,000/- have been taken into account.
14. Basanti Devi is a case in which the deceased aged 25
years was a Bachelor of Engineering in Computer Technology
.The accident was in the year 2011. Tribunal assessed the income
for the purpose of awarding future loss of income at the rate of
Rs.20,000/- per month and added 40% towards future prospects
and thereafter deducted 50% towards his personal expenses and
applying multiplier of 18, an amount of Rs.30,24,000/- was
awarded towards future loss of income. In appeal by the
insurance company, the High Court reduced the amount of
compensation from Rs.30,24,000/- to Rs.15,82,000/-. Against
which both sides approached the Apex Court and having regard
to the facts and circumstances, the Apex Court was pleased to
approve the monthly income of Rs.20,000/- taken by the
Tribunal.
15. Learned counsel for the 2nd respondent, on the other
hand, relied on Meena Pawaia and Others v. Ashraf Ali and
M.A.C.A.No.2516/2010
Others : 2021 (6) KHC 596). It was a case of accident
occurred in the year 2012 and the deceased was a third year
student in Civil Engineering, aged 22 years. In that case,Apex
court taken the monthly income of the deceased as Rs.10000/.
But 40% was added to it and Rs.14000/- per month was taken
towards future economic loss and multiplier of 18 was adopted.
16. In National Insurance Company Limited v.
Fathimath Zuhara : 2016 ACJ 2742 :2016(3) KLT 459 :
2016 KHC 691 and ILR 2016(3) Kerala 431, Division Bench
of this Court approved Rs.12,000/- as monthly income notionally
taken by the Tribunal with respect to an Engineering student who
lost life in an accident in 2005.
17. So, bearing in mind the above principles, the facts
and circumstances of the present case has to be considered. At
the time of accident, the appellant was 18 years old engineering
student. The fact that she was doing 4th semester B.Tech
Computer Science and Engineering at the time of accident is
discernible from Ext.A9 and that fact is not seen disputed.
M.A.C.A.No.2516/2010
Hence I find it just and reasonable to take the monthly income of
the appellant as Rs.10,500/- per month.
18. In Raj Kumar v. Ajay Kumar and Another :
2011(1) SCC 343 : 2010 KHC 5021 : 2011(1) KLT 620
general principles relating to compensation in injury cases has
been dealt with in detail and it has been held therein that the
provision of the Motor Vehicles Act, 1988 makes it clear that the
award must be just, which means that compensation should, to
the extent possible, fully and adequately restore the claimant to
the position prior to the accident.
19. The claimant in this case sustained fracture of both
bones right leg and she was treated conservatively. She had
undergone inpatient treatment for 26 days.Ext.A8 disability
certificate and percentage of disability assessed at 13%by the
Doctor has been accepted by the Tribunal considering the nature
of injuries sustained by her. That is not further challenged by the
respondent. Hence 13% permanent disability taken by the
Tribunal is only to be approved.
M.A.C.A.No.2516/2010
20. The suitable multiplier as per Sarla Verma v. Delhi
Transport Corporation (2010 (2) KLT 802) approved by
National Insurance Company Limited v. Pranay Sethi and
Ors (2017(4) KLT 66) would be 18. Compensation towards
permanent disability would be Rs.10,500 x 12 x 13 x 18/100 =
Rs.2,94,840/-. Deducting Rs.49,920/-, the amount already
awarded by the Tribunal under that head, balance amount would
be Rs.2,44,920/- [Rs.2,94,840 - Rs.49,920]. Towards extra
nourishment, an amount of Rs.1,500/- has been awarded by the
Tribunal. Being a student and taking into account the fact that
she had undergone 26 days in-patient treatment, an amount of
Rs.2,600/- is awarded towards extra nourishment. Deducting the
amount already awarded, balance amount would be Rs.1,100/-.
Tribunal awarded Rs.2,500/- towards bystander expenses. Since
the accident was in the year 2004, Rs.150/- per day can be
awarded under that head. Hence towards bystander expenses,
the claimant is entitled to get Rs.3,900/-. Deducting the amount
already awarded by the Tribunal, the balance amount would be
M.A.C.A.No.2516/2010
Rs.1,400/-.
21. The learned counsel further seeks for compensation
towards loss of marriage prospects. He would rely on
Dineshkumar.J @ Dinesh J. v. National Insurance Co.Ltd
and Others : 2017 KHC 6871 : 2018(1) SCC 750 : 2018
ACJ 535. But in that case left leg of the claimant was amputated
and 60% whole body disability was proved by examining the
Doctor. Tribunal awarded Rs.50000/ towards permanent
disability. But in this case neither the claimant nor the doctor was
examined to prove disfiguration. There is no claim and no
amount was awarded under that head. Records also would reveal
that fracture was treated conservatively. So I don't find any
reason to award any compensation under the head of loss of
marriage prospects.
22. Compensation awarded by the Tribunal under other
heads also seem to be just and reasonable and no interference is
called for. So, enhanced compensation would be Rs.2,44,920 +
Rs.1,100 + Rs.1,400= Rs.2,47,420/- rounded off to
M.A.C.A.No.2516/2010
Rs.2,47,450/-. Though the compensation awarded would be in
excess of the claim, it is permissible since it is the duty of the
Tribunal and courts to award just equitable, fair and reasonable
compensation with reference to settled principles (see Oriental
Insurance Co. Ltd. v. Mohammed Nazir and Another : AIR
2009 S.C (Supp) 1619; Rajesh and others v. Rajbir Singh
and Others : (2013) 3 SCC Cri. 817 : (2013) 9 SCC 54 :
2013 (3) KHC 212)
23. In the result appeal allowed. The claimant is allowed
to realise enhanced compensation of Rs.2,47,450/- (Rupees
two lakhs forty seven thousand four hundred and fifty only) with
interest at 6% from the date of petition till realisation excluding
262 days, the delay caused in filing this appeal. The 2nd
respondent, Insurance Company, shall satisfy additional
compensation granted in this appeal together with interest within
a period of two months from the date of receipt of certified copy
of this judgment deducting the liability of the claimant towards
balance court fee.
M.A.C.A.No.2516/2010
24. The disbursement of additional compensation to the
appellants/claimants shall be made taking note of the law on the
point and in terms of the directives issued by this Court in
Circular No.3 of 2019 dated 6.9.2019 and clarified further in
Official Memorandum No.D1-62475/2016 dated 7.11.2019. The
appellant/claimant shall provide the Bank account details
(attested copy of relevant page of bank pass book, Bank Account
number and IFSC code of the branch) before the Tribunal with a
copy to the learned Standing Counsel for the insurer, within one
month from the date of receipt of certified copy of this judgment.
(sd/-) M.R.ANITHA, JUDGE
jar
True Copy
P.S. To Judge
