Kerala High Court
Icici Lombard Gic Ltd vs Manukumar P.M on 28 September, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944
MACA NO. 427 OF 2015
AGAINST THE ORDER/JUDGMENT OPMV 1526/2010 OF ADDITIONAL DISTRICT COURT &
MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA / I ADDL. M.A.C.T.
APPELLANT/PETITIONER:
MANU KUMAR P.M.
S/O.MADHUSOODANAN PILLAI, PUNNAKKATTU HOUSE, CHENEERKARA P.O.,
PATHANAMTHITTA, REP. BY HIS NEXT FRIEND AND GUARDIAN FATHER
MADHUSOODANAN PILLAI.
BY ADV SRI.A.N.SANTHOSH
RESPONDENTS/RESPONDENTS:
1 VARGHESE K.MANI
S/O.K.V.MANI, KUNNEL HOUSE, SN PURAM P.O., PAMPADY, KOTTAYAM-686 502.
2 THE BRANCH MANAGER
ICICI LOMBARD MOTOR INSURANCE CO.LTD., KANNANKERI ESTATE, 3RD FLOOR,
MARINE DRIVE, SHANMUGHAM ROAD, KOCHI-682031.
3 THE DIRECTOR
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O.
THIRUVANANTHAPURAM - 695011
(IS SUO MOTTO IMPLEADED AS ADDITIONAL 3RD RESPONDENT IN APPEAL VIDE
ORDER DATED 25/03/2021 IN MACA 427/2015,
BY ADVS.GOVERNMENT PLEADER SRI.R.AJITH KUMAR -SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
28.09.2022, ALONG WITH MACA.731/2015, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NOs.427 & 731 of 2015 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944
MACA NO. 731 OF 2015
AGAINST THE ORDER/JUDGMENTOPMV 1526/2010 OF ADDITIONAL DISTRICT
COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA / I ADDL.
M.A.C.T.
APPELLANT/2ND RESPONDENT :
M/S. ICICI LOMBARD GIC LTD
KANNANKERI ESTATE,3RD FLOOR,SHANMUGHAM ROAD,MARINE
DRIVE,ERNAKULAM,PIN 670001 REP BY IT'S MANAGER LEGAL
BY ADV SRI.R.AJITH KUMAR (128/84)
RESPONDENT/CLAIMANT:
MANUKUMAR P.M
S/O.MADHUSUDHANAN PILLAI,PUNNAKKATTHU
HOUSE,CHENNERKKARA P.O,PATHANAMTHITTA
BY ADV SRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 28.09.2022, ALONG WITH MACA.427/2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
MACA NOs.427 & 731 of 2015 3
JUDGMENT
These appeals arise out of the award in
O.P(MV)No.1526/2010 on the files of the Motor Accidents
Claims Tribunal, Pathanamthitta and they are heard
together and are disposed of by this common judgment.
2. M.A.C.A. No.427/2015 is filed by the petitioner in
the original petition filed under Section 166 of the Motor
Vehicles Act, 1988, (who is represented by his father as his
next friend), being dissatisfied with the quantum of
compensation awarded by the Tribunal. M.A.C.A
No.731/2015 is preferred by the insurer of the offending
vehicle contending that the amount awarded by the Tribunal
is excessive and exorbitant. The parties in these appeals are
referred to as per their status in the claim petition.
3. According to the petitioner, on 1.9.2010 at 6.30
p.m., while he was travelling as a pillion rider on a
motorcycle bearing Registration No.KL-01/AP-4523, a
maruti car bearing Registration No.KL-05/Y-8595, owned
and driven by the 1st respondent hit on the motorcycle and
MACA NOs.427 & 731 of 2015 4
he sustained serious injuries. The 2nd respondent is the
insurer of the car. The petitioner claimed an amount of
Rs.50,00,000/- as compensation for the injuries sustained in
the accident.
4. The 1st respondent filed a written statement
contending that the accident happened due to the
negligence of the rider of the motorcycle. The 2 nd
respondent Insurance Company also filed a written
statement admitting the policy but disowning the liability to
indemnify the 1st respondent as the 1st respondent was not
having driving licence and badge on the date of accident. It
was also contended that the accident happened due to the
negligence of the rider of the motorcycle and that the
amount of compensation claimed is excessive.
5. The Tribunal found that the accident happened
due to the negligence of the 1st respondent and that there is
no violation of policy conditions and the 2 nd respondent is
liable to indemnify the insured. The Tribunal awarded an
amount of Rs.37,25,375/- as compensation for the personal
injuries sustained by the petitioner and directed the 2 nd
respondent to satisfy the award with 9% interest per annum
from the date of petition till realisation and proportionate
cost of Rs.2,24,795/-. The split up of the compensation
awarded under various heads is as follows:-
Sl.No. Head of claim Amount Claimed Amount awarded by the
Tribunal
1. Loss of earnings. 8,00,000 3,20,000
2. Transport to hospital 25000 25000
3. Extra nourishment 50,000 5000
4. Damage to clothing 1,000 2500
5. Medical expenses 5,00,000 4,30,875
6. By stander's expenses 1,00,000 50000
7. Pain and sufferings 400000 100000
8. Compensation for loss of earning 22,79,000 25,92000
capacity.
9. Loss of amenities & enjoyment of 4,00,000 1,00,000
life & Matrimonial prospects.
10 Future medical expenses 100000 50000
11 Loss of life expectancy 200000 50000
12 Future bystanders expenses 25000 -
13. Future transport expenses 20000 -
14. Future loss of earning 300000 -
Total 50,00000 37,25,375
6. Since the dispute raised in these appeals is as
to the exorbitance and inadequacy of quantum of
compensation, this Court has to consider whether the
compensation fixed by the Tribunal is just, fair and
reasonable.
7. According to the petitioner, he is the only child of
his parents. He took bachelor's degree in science in first
class as proved by Ext. P24 Degree certificate issued by the
University of Kerala. According to him, at the time of
accident, he was a bachelor aged 25 years and was working
as Lecturer in a school in Saudi Arabia drawing an amount
of Rs.40,000/- per month.
8. The Tribunal has narrated the injuries sustained
by the petitioner in paragraph 8 of the award and the
relevant portion is extracted hereunder:-
"8. He sustained grave injuries in the accident and was
treated in Century Hospital, Mulakuzha as proved by Ext.A5,
A7 to A16 medical records issued from that hospital. He
sustained fracture right femur and right tibia. CT scan
showed brain-left frontal and left temporal contusion with left
frontotempoparietal subdural haematoma, severe left
frontotempoparietal brain oedema with shift of midline to the
right which speaks of contusion present in the right frontal
and right temporal region..."
9. On the basis of Ext. A 18 disability certificate
issued by the Medical College Hospital, Kottayam, the
Tribunal fixed the disability of the petitioner as 92% and the
occupational disability as 100%. The Presiding Officer, who
had the opportunity to see the petitioner, has stated in
paragraph 9 of the award as follows:-
"9. ... The injured was personally observed by me when he
was carried in a chair and brought to court by his by-
standers. He could not speak in the court as he was
speech impaired and could not move his right lower and
upper limbs. He appeared to be not able to attend his
primary needs by himself. On personal observation of the
injured, I am of the opinion that the functional disability
of 92% assessed by the Board is reasonable. In the nature
of occupation as teacher or holder of other kinds of job
also, I hold that his occupational disability is 100%."
10. With regard to the income of the petitioner,
though the petitioner claimed that he was working as a
Lecturer in a school in Saudi Arabia, in the absence of
cogent proof except the testimony of PW1 mother, a few
circumstantial evidence borne out by Ext. A25 passport and
Exts. A26 and A27 statements of bank account, the Tribunal
took the notional monthly income of the petitioner as
Rs.8,000/-.
11. Taking the monthly income as Rs.8000/-, and
adding 50% towards future prospects, occupational
MACA NOs.427 & 731 of 2015 8
disability as 100% and multiplier as 18, the Tribunal
awarded an amount of Rs. 25,92,000/- (12000x12x18x100%)
towards compensation for loss of earning capacity.
12. Sri. Ajitkumar Varma, the learned counsel for the
insurance company would contend that the Tribunal erred
in taking the notional monthly income of the petitioner as
Rs.8000/-, as, in the absence of documentary proof of
employment as Lecturer in school in Saudi Arabia as
claimed by him, only a notional income with reference to
Indian standards ought to have been taken. The learned
counsel would also contend that the Tribunal went wrong in
adding 50% of the income towards future prospects. Sri. Ajit
also contends that Ext. A18 certificate has been issued in
violation of relevant guidelines and based on the same, the
occupational disability of the petitioner cannot be assessed
as 100%. Sri. Ajit also disputes the multiplier adopted by
the Tribunal.
13. On the contrary, Sri. A.N.Santhosh, the learned
counsel for the petitioner would contend that based on Exts.
MACA NOs.427 & 731 of 2015 9
A25 to A27 documents, the Tribunal ought to have taken the
monthly income of the petitioner as Rs.40,000/-. Sri.
Santhosh would contend that the petitioner is continuing in
a vegetative condition and his loss of earning is 100%. The
learned counsel would also contend that since the petitioner
was aged 25 years as on the date of accident, the Tribunal
has rightly taken the multiplier as 18.
14. Having noticed certain discrepancy in Ext. A18
disability certificate issued by the Medical College Hospital,
Kottayam, this Court, by common order dated 05.10.2021,
directed the Superintendent, Medical College Hospital,
Thiruvananthapuram to constitute a Medical Board to
reassess the disability of the petitioner. Accordingly, the
Medical Board constituted has examined the petitioner and
issued disability certificate No.G2/345/2022/GMCHT dated
03/03/2022 and the Superintendent, Medical College
Hospital, Thiruvananthapuram has forwarded the same to
the Registrar of this Court. The said certificate is marked as
Ext.X1. The relevant portion of the disability certificate
reads as under:
"We the members of the Medical Board Medical
College Hospital TVM have examined
Sri. Manukumar Aged 36 years, residing at
Punnakkattu House, Chennerkkara P. O.,
Pathanamthitta on 03/03/2022 and found his as a
person with disability by reason of Physical
and Psychiatric impairment due to
1. Major Neurocognitive disorder due to traumatic
brain injury. Post traumotic seizure disorder.
2. Weakness in Right upper and Lower limb
The disability is Permanent nature and degree
of disability having been found as 82% (Eighty two
percent)."
15. Since the Medical Board constituted as per the
orders of this Court has certified the permanent disability of
the petitioner as 82%, this Court has to consider the effect
and impact of such permanent disability on his earning
capacity. The Hon'ble Supreme Court, in Raj Kumar v.
Ajay Kumar and another [2010 KHC 5021: 2011 (1)
KLT 620:(2011) 1 SCC 343], considered in detail the
correlation between the permanent disability suffered in an
accident and the loss of earning capacity resulting
therefrom. The Court held as under:-
MACA NOs.427 & 731 of 2015 11
"8. Where the claimant suffers a permanent disability
as a result of injuries, the assessment of compensation
under the head of loss of future earnings, would
depend upon the effect and impact of such permanent
disability on his earning capacity. The Tribunal should
not mechanically apply the percentage of permanent
disability as the percentage of economic loss or loss of
earning capacity. In most of the cases, the percentage
of economic loss, that is, percentage of loss of earning
capacity, arising from a permanent disability will be
different from the percentage of permanent disability.
Some Tribunals wrongly assume that in all cases, a
particular extent (percentage) of permanent disability
would result in a corresponding loss of earning
capacity, and consequently, if the evidence produced
show 45% as the permanent disability, will hold that
there is 45% loss of future earning capacity. In most of
the cases, equating the extent (percentage) of loss of
earning capacity to the extent (percentage) of
permanent disability will result in award of either too
low or too high a compensation. What requires to be
assessed by the Tribunal is the effect of the
permanently disability on the earning capacity of the
injured; and after assessing the loss of earning
capacity in terms of a percentage of the income, it has
to be quantified in terns of money, to arrive at the
future loss of earnings (by applying the standard
multiplier method used to determine loss of
dependency). We may however note that in some
cases, on appreciation of evidence and assessment, the
Tribunal may find that percentage of loss of earning
capacity as a result of the permanent disability, is
approximately the same as the percentage of
permanent disability in which case, of course, the
Tribunal will adopt the said percentage for
determination of compensation....."
"9. Therefore, the Tribunal has to first decide whether
there is any permanent disability and if so the extent
of such permanent disability. This means that the
tribunal should consider and decide with reference to
the evidence: (i) whether the disablement is
permanent or temporary; (ii) if the disablement is
permanent, whether it is permanent total disablement
or permanent partial disablement, (iii) if the
disablement percentage is expressed with reference to
any specific limb, then the effect of such disablement
of the limb on the functioning of the entire body, that
is the permanent disability suffered by the person. If
the Tribunal concludes that there is no permanent
disability then there is no question of proceeding
further and determining the loss of future earning
capacity. But if the Tribunal concludes that there is
permanent disability then it will proceed to ascertain
its extent. After the Tribunal ascertains the actual
extent of permanent disability of the claimant based on
the medical evidence, it has to determine whether
MACA NOs.427 & 731 of 2015 13
such permanent disability has affected or will affect
his earning capacity.
10. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what
activities the claimant could carry on in spite of the
permanent disability and what he could not do as a
result of the permanent ability (this is also relevant for
awarding compensation under the head of loss of
amenities of life). The second step is to ascertain his
avocation, profession and nature of work before the
accident, as also his age. The third step is to find out
whether (i) the claimant is totally disabled from
earning any kind of livelihood, or (ii) whether in spite
of the permanent disability, the claimant could still
effectively carry on the activities and functions, which
he was earlier carrying on, or (iii) whether he was
prevented or restricted from discharging his previous
activities and functions, but could carry on some other
or lesser scale of activities and functions so that he
continues to earn or can continue to earn his
livelihood.."
The said yardstick in determining the extent of permanent
disability for assessment of loss of earning capacity has
been reaffirmed by the Hon'ble Supreme Court in Pappu
MACA NOs.427 & 731 of 2015 14
Deo Yadav v. Naresh Kumar and others [AIR 2020 SC
4424] and reiterated in Jithendran v. New India
Assurance Co. Ltd. and another [2021 KHC 6653: 2021
(4) KLJ 646: AIR 2021 SC 5382].
16. The Medical Board constituted pursuant to order
dated 05.10.2021 has assessed the permanent disability of
the petitioner as 82%. The said disability certificate is
issued eleven and a half years after the accident. Even after
more than 11 years of the accident, his condition is not
much improved and he may be in the same position for his
remaining life. He is totally disabled from earning any kind
of livelihood. The earning life for the petitioner is over and I
fix his loss of earning capacity as 100%.
17. As regards the income of the petitioner, he
claims that he was working as a Lecturer in a school in
Saudi Arabia. The petitioner, who is speech-impaired and
lying in a vegetative stage, could not adduce any evidence
as to his income. As found by the Tribunal, except the
testimony of PW1 mother, a few circumstantial evidence
MACA NOs.427 & 731 of 2015 15
borne out by Ext. A25 passport and Exts. A26 and A27
statements of bank account, there is no cogent proof as to
his income abroad. Therefore, only a notional income can be
arrived at for the purpose of assessing compensation. This
Court has to do some guess work with regard to the income
he could have earned if he was working in India at the
relevant time. PW1 has deposed that the petitioner was
working as a teacher in Saudi Arabia. However, the
petitioner is not having any qualification like T.T.C or B.Ed
for obtaining the job of teacher in India. He was a bright
student as borne out from his school and university records.
He was graduated with first class and has possessed
qualification in the computer field. Taking into account his
educational qualifications and his potential to earn had he
been not disabled, I fix the notional monthly income of the
petitioner as Rs.13,000/- for the purpose of computing the
compensation.
18. In Pappu Deo Yadav (supra), the Apex Court has
held that, in cases of serious injuries resulting in permanent
disablement incurred as a result of a motor accident, the
MACA NOs.427 & 731 of 2015 16
claimant can seek, apart from compensation for future loss
of income, amounts for future prospects too. However, since
there is no proof that the petitioner was permanently
employed, only 40% can be added towards future prospects.
19.The petitioner was aged 25 years at the time of
accident. So the multiplier to be adopted is 18. I have found
that the loss of earning capacity of the petitioner is 100%
and his notional monthly income is Rs.13,000/-. Adding 40%
towards future prospects, the monthly income of the
petitioner will come to Rs.18,200/- (Rs.13,000+Rs.5,200).
Therefore, the compensation for loss of earning capacity is
reassessed as Rs.39,31,200/- (Rs.18200×12×18×100%).
Since the petitioner has already been awarded an amount of
Rs.25,92,000/- towards compensation for loss of earning
capacity, he will be entitled for an enhanced amount of
Rs.13,39,200/- under the said head.
20. Towards loss of earnings, the Tribunal has
awarded an amount of Rs.3,20,000/- observing that the
petitioner had suffered loss of earnings for 40 months, ie,
MACA NOs.427 & 731 of 2015 17
from the date of accident till the date of trial. This Court, in
Ulahannan v. Rajeesh and others [2020 KHC 222:
2020 (3) KLT 173: ILR 2020 (2) Ker. 295], has held that
once dependency compensation (Sic.disability
compensation) is granted taking 100% loss of earning
capacity and applying the multiplier with reference to the
age of the claimant as on the date of accident, the claimant
is not entitled for any compensation under the head loss of
earnings. When the petitioner is awarded disability
compensation taking 100% loss of earning capacity and
applying the multiplier of 18 with reference to the age of
the appellant as on the date of accident, the petitioner is not
entitled for any compensation under the head loss of
earnings. Therefore, the amount of Rs.3,20,000/-awarded
towards loss of earnings has to be deducted from the total
compensation.
21.Towards pain and sufferings, the petitioner has
been awarded an amount of Rs.1,00,000/-. Taking note of
the injuries suffered by the petitioner, I find that he is
entitled for an amount of Rs.2,00,000/- under the said head.
MACA NOs.427 & 731 of 2015 18
Therefore, the petitioner is granted an additional amount of
Rs.1,00,000/-.
22. For loss of amenities and enjoyment of life and
matrimonial prospects, the Tribunal has awarded an amount
of Rs.1,00,000/-. The petitioner was a bachelor aged 25
years at the time of the accident. I find that an amount of
Rs.3,00,000/- would be just and reasonable compensation
under the head 'loss of amenities and enjoyment of life and
matrimonial prospects'. After deducting the amount of
1,00,000/- already awarded, he is entitled for an enhanced
amount of Rs.2,00,000/- under the said head.
23. For future medical expenses, only an amount of
Rs.50,000/- has been awarded. Sri. Ajit, the learned counsel
for the insurance company submits that there is nothing on
record to show that the petitioner has incurred future
medical expenses. Taking note of the nature of the injuries
sustained, major neurocognitive disorder due to traumatic
brain injury and the post traumotic seizure disorder, I find
that an amount of Rs.1,00,000/- can be awarded under the
MACA NOs.427 & 731 of 2015 19
head 'future medical expenses'. Since the petitioner has
already been awarded an amount of Rs.50,000/-, he is
entitled to an additional amount of Rs.50,000/- under the
said head.
24. The Tribunal has awarded only an amount of
Rs.5,000/- against a claim of Rs.50,000/- under the head
extra nourishment. Taking into account the nature of
injuries sustained by the petitioner, I am inclined to grant
compensation as claimed by him. Accordingly, he is entitled
for an amount of Rs.50,000/- under the said head.
25.Towards loss of life expectancy, the petitioner has
been awarded an amount of Rs.50,000/-. Since the
petitioner has already been awarded compensation under
the head loss of earning capacity, he is not entitled for
compensation under the head loss of life expectancy.
Therefore, Rs.50,000/- has to be deducted from the total
compensation.
26.Towards 'future bystanders expenses', no amount
has been awarded by the Tribunal. The Presiding Officer of
MACA NOs.427 & 731 of 2015 20
the Tribunal, after personally observing the petitioner, has
observed that the petitioner was brought to the court in a
chair by bystanders and that he was not able to attend his
primary needs by himself. The petitioner is having 82%
permanent whole body disability and he would require the
assistance of bystanders throughout his life. Therefore, he
is entitled for future bystander's expenses. The Hon'ble
Supreme Court in Kajal v. Jagdish Chand [2020 (1) KLT
743 (SC)] has held that the multiplier system should be
followed for determining the attendant charges. Taking the
daily wage of an attender as Rs.300/- and the multiplier as
18, I find that the petitioner is entitled for an amount of
Rs.19,44,000/- (Rs.300×30 days×12×18) under the head
future bystanders expenses.
27. I find that the compensation awarded under the
other heads is just and reasonable.
28. The interest awarded on the amount of
compensation is scaled down to 7.5% from 9%.
29. Accordingly, the petitioner will be entitled for an
enhanced compensation of Rs.33,08,200/-
(45000+13,39,200+1,00,000+2,00,000+50,000+19,44,000-
3,20,000-50,000) with 7.5% interest per annum from the
date of the petition till realisation and costs, which I fix as
Rs.50,000/-. The amount awarded towards future
bystanders expenses and future medical treatment expenses
will not carry interest.
30. The split up of the compensation as modified and
re-calculated by this Court is as follows:-
Sl.No. Head of claim Amount Amount Difference in the
awarded by awarded by this amount awarded
the Tribunal Court
1. Loss of earnings. 3,20,000 0 -3,20,000
2. Transport to hospital 25000 25000
3. Extra nourishment 5,000 50,000 45000
4. Damage to clothing 2500 2500
5. Medical expenses 4,30,875 4,30,875
6. By stander's expenses 50,000 50,000
7. Pain and sufferings 100000 2,00,000 1,00000
8. Compensation for loss of 25,92,000 39,31,200 13,39,200
earning capacity.
9. Loss of amenities & 100,000 3,00000 2,00000
enjoyment of life &
Matrimonial prospects.
10 Future medical expenses 50000 1,00,000 50000
11 Loss of life expectancy 50000 0 -50000
12 Future bystanders expenses - 19,44,000 19,44,000
13. Future transport expenses -
14. Future loss of earning -
Total 37,25,375 70,33,575 33,08,200
31. The appellant insurance company shall satisfy the
MACA NOs.427 & 731 of 2015 22
award. The balance amount in terms of this judgment after
deducting the amount already paid pursuant to the order
dated 13.3.2015 of this Court in MACA No.731/2015 shall
be deposited by the appellant insurance company before the
Tribunal within a period of three months from the date of
receipt of a copy of this judgment. The amount awarded
towards future bystanders expenses and future medical
treatment expenses shall be deposited by the Tribunal in
fixed deposit in a nationalised bank, for a period of 3 years
and the interest payable on such deposit shall be released to
the petitioner on quarterly basis. The petitioner can move
the Tribunal for release of amounts for any special medical
expenses, which the Tribunal may consider appropriately.
M.A.C.A. No.427/2015 is allowed to the above extent
and M.A.C.A No.731/2015 is dismissed.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
Al/-..
