The New India Assurance Company ... vs Geetha Varma
2023 Latest Caselaw 4394 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
             THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
       WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945
                             MACA NO. 307 OF 2018
   AGAINST THE AWARD IN OPMV 760/2014 OF MOTOR ACCIDENT CLAIMS
                             TRIBUNAL, ERNAKULAM
APPELLANT/3RD RESPONDENT:

             THE NEW INDIA ASSURANCE COMPANY LTD
             ERNAKULAM, REPRESENTED BY ITS DEPUTY MANAGER,
             REGIONAL OFFICE, M.G.ROAD, ERNAKULAM

             BY ADVS.
             SRI.GEORGE CHERIAN (SR.)
             SMT.LATHA SUSAN CHERIAN
             SMT.K.S.SANTHI



RESPONDENT/CLAIMANT:

             GEETHA VARMA, W/O.RAMESH VARMA, EDOOP PALACE 19,
             TRIPUNITHURA, TRIPUNITHURA MUNICIPALITY,
             ERNAKULAM, PIN 682301

             BY ADVS.
             SRI.AKHIL S.VISHNU
             SRI.P.N.SUKUMARAN


        THIS APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2023, ALONG
WITH     CO.45/2023,   THE    COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 MACA No.307/2018 & CO.45/2023
                                   2'




          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
       THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA,
                                 1945
                          CO NO. 45 OF 2023
  AGAINST THE AWARD IN OPMV 760/2014 OF MOTOR ACCIDENT
                    CLAIMS TRIBUNAL, ERNAKULAM
CROSS OBJECTOR/RESPONDENT/CLAIMANT:

           GEETHA VARMA, W/O RAMESH VARMA, EDOOP PALACE
           19, TRIPPUNITHURA, TRIPPUNITHURA MUNICIPALITY,
           ERNAKULAM, PIN - 682301

           BY ADVS.
           AKHIL S.VISHNU
           D.CHANDRASENAN



RESPONDENT/APPELLANT/3RD RESPONDENT:

           NEW INDIA ASSURANCE COMPANY LTD.
           ERNAKULAM REPRESENTED BY ITS DEPUTY MANAGER
           REGIONAL OFFICE, M.G ROAD, ERNAKULAM.

           SRI.GEORGE CHERIAN (SR.)
           SMT.LATHA SUSAN CHERIAN
           SMT.K.S.SANTHI


      THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION
ON 12.04.2023, ALONG WITH MACA.307/2018, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 MACA No.307/2018 & CO.45/2023
                                   3'


                                JUDGMENT

[MACA Nos.307/2018, 45/2023]

Smt.Geetha Varma was a trainer in banking and allied

fields. On 05.10.2013, she was hit by an offending

motorcycle, ridden in a very rash and negligent manner,

while she was waiting for a bus at the Aluva Arogyalayam

stop. She suffered very grievous injuries and had to be

hospitalised and treated as an inpatient for several days,

leading to complete loss of her cognitive faculties and

resultant loss of employment; thus, constraining her to file

OP(MV)No.760/2014 before the Motor Accidents Claims

Tribunal, Ernakulam (the 'Tribunal' for short), seeking

compensation of an amount of Rs.1,05,23,000/-, limited to

Rs.75,00,000/-; but which has been allowed to a sum of

Rs.56,63,200/-.

2. The New India Assurance Company Limited - which

insured the offending motorcycle, however, filed this appeal

impugning the afore Award of the Tribunal, as being

excessive.

3. Smt.K.S.Santhi - learned Standing Counsel for the

appellant - Insurance Company, argued that the notional

income adopted by the learned Tribunal in favour of MACA No.307/2018 & CO.45/2023 4'

Smt.Geetha Varma is too high; while the multiplier adopted

by it, for the purpose of reckoning the compensation under

the head "Disability", is much more than what is legally

authorised. She also assailed the compensation awarded by

the learned Tribunal under the heads "Future Treatment

Expenses" and "Loss of Amenities and Comforts"; and thus

prayed that this appeal be allowed.

4. In refutation, Sri.D.Chandrasenan - learned counsel

appearing for Smt.Geetha Varma, argued that his client was

an accomplished Kathakali artist, in addition to being a

trainer for various institutions, including banks. He pointed

out that, consequent to the horrific accident, she has been

reduced to a vegetative state and forced to be under assisted

living, being without any control of her cognitive faculties;

thus altering her life for ever, from being a vibrant young

lady to one who is now fully bedridden. He asserted that,

therefore, the Insurance Company ought not to have filed

this appeal at all, particularly because his client surely is

entitled to even a much higher figure than now granted.

5. Sri.D.Chandrasenan, thereafter, pointed out that, for

the afore reasons, his client has filed C.O.No.45 of 2023,

seeking enhancement of compensation in her favour, MACA No.307/2018 & CO.45/2023 5'

particularly because she is entitled to larger sums under the

heads "Pain and Sufferings", "Loss of Amenities and

Comforts", "Extra Nourishment" and "Attendant Expenses".

He thus prayed that C.O.No.45 of 2023 be allowed and the

appeal be dismissed.

6. I have evaluated the afore rival submissions on the

touchstone of various materials and evidence on record -

copies of which have been handed over across the Bar by the

learned counsel for the parties, with the express consent

that they can be acted upon by this Court without dispute.

7. As evident from the afore narrative, the primary

contest between the parties is with respect to the notional

income of Smt.Geetha Varma; and the adequacy or otherwise

of the compensation awarded by the Tribunal under the

heads of "Pain and Sufferings", "Loss of Amenities and

Comforts", "Future Treatment Expenses", "Extra

Nourishment" and "Attendant Expenses".

8. On the question of the income of Smt.Geetha Varma,

the learned Tribunal has fixed it to be Rs.35,000/- per

month, after assessing the evidence available on record.

The discussion of the learned Tribunal in this regard is

available in paragraph 9 of the Award which is as follows: MACA No.307/2018 & CO.45/2023 6'

"Ext.A17 salary savings account status would reveal the deposit of Rs.31,025/- towards salary for the month of January 2009, Rs.30,930/- towards the salary for the month of February 2009, Rs.52,386/- towards the salary for the month of March 2009 and Rs.30,790/- each towards the salary for the months of April and May 2009. Apart from that the same exhibit would reveal the salary credit for the month of April 2012 was Rs.48,407/- and May 2012 was Rs.41,036/-. So from the available records now it is established that the salary of the victim at the time of the accident was in between Rs.41,000/- and Rs.48,000/-. Admittedly no evidence has let in to prove the different heads of salary. So it is not possible to deduct any sum from the salary details herein above noted in Ext.A17 towards incentives and perks. In fact the employment of the claimant in IDBI Federal Life Insurance has seen not objected on the part of R3. It is true that Ext.A21 worksheet for gratuity and final settlement would indicate that she was having the basic pay to the tune of Rs.25,972/- in the year 2014. The final settlement details attached with Ext.A21 would indicate that on 31.03.2014 ie. on the date of separation from her occupation she was having the basic pay to the tune of Rs.19,988/-. But the worksheet for gratuity attached with Ext.A21 would denote that she was having the basic pay to the tune of Rs.25,972/- on the date of retirement. In spite of such discrepancies claimant has seen not taken any steps to prove her salary on the date of the accident. As per Ext.A24 claimant is succeeded to prove her separation from the occupation on account of the poor health developed due to the accident. Admittedly Ext.X1 indicates cognitive impairment secondary to head injury to the extent of 50%. If that be so, though there is no oral evidence on the part of the claimant regrading the separation from her job on account of the injuries sustained in the accident, the disability noted by the Medical Board under the relevant head is sufficient to prove the same. So in my opinion from the available evidence claimant is succeeded to prove the fact that she was forced to quit her job because of the injuries sustained to brain. Admittedly the retirement age of the victim is 60 years. If that be so, she could have continue in service for 9 more years. Considering the available evidence her monthly salary can be fixed to the tune of Rs.35,000/- for want of sufficient evidence to prove the exact salary."

9. I must say that I find favour with the afore

conclusions of the learned Tribunal because, as it has

correctly found from Ext.A17 - Bank Statement, it could MACA No.307/2018 & CO.45/2023 7'

establish that Smt.Geetha Varma was drawing a salary

between Rs.41,000/- and Rs.48,000/- at the time of the

accident. No contra evidence has been impelled by the

Insurance Company, and this is pertinent because Ext.A17

records her salary without any incentives or perks being

mentioned therein. It is also uncontested that, at the time of

the accident, Smt.Geetha Varma was working in the "IDBI

Federal Life Insurance Ltd." as a trainer; and Ext.A21 - Work

Sheet, which relates to her gratuity and final settlement,

indubitably shows that her basic pay was Rs.25,972/- in the

year 2014. Ext.A24 - Job Termination Certificate would then

show that she lost her employment on account of the

accident, which is not surprising when Ext.X1 - Disability

Certificate records her cognitive impairment to be 50%.

10. I, therefore, cannot find the conclusion of the

learned Tribunal, that the average income of Smt.Geetha

Varma at the time when the accident occurred was

Rs.35,000/-, to be in any error and hence find no reason to

interfere with it in any manner whatsoever. This is more so

because, even though a higher figure could have certainly

been adopted by the learned Tribunal, it confined itself to

Rs.35,000/-, because the average of the income proven MACA No.307/2018 & CO.45/2023 8'

through the various documents, as mentioned above, would

be in the vicinity of the said figure. Though the appellant -

Insurance Company asserts that some amount of tax may

have been deducted from the said figure, in the absence of

any evidence to prove the same, I find no reason to accede

to it and hence confirm the findings of the learned Tribunal,

that the notional income of Smt.Geetha Varma is reckonable

at the figure of Rs.35,000/- per month, at the time of the

accident.

11. Next is the question as to what is the actual

disability suffered by Smt.Geetha Varma. Ext.X1 - Disability

Certificate unequivocally records her whole body disability,

consequent to the head injury sustained by her, to be 50%.

The further medical evidence, particularly Ext.A2 - Wound

Certificate, establishes that, apart from abrasions and other

minor injuries, Smt.Geetha Varma had suffered "right

temporal pole extradural hematoma, right parietal

extradural haemorrhage, left temporo parietal subarachnoid

and contusion haemorrhage, subarachnoid bleed, brain

contusion, right eye per orbital edema, contusions over right

parietal region, dyslipidema, hyponatremia" (sic). The CT

scan, which is available on record, confirms the above, MACA No.307/2018 & CO.45/2023 9'

including right temporal extra dural haematoma, right

parietal extra dural haematoma and sub archnoid bleed and

brain contusion. The hospitals which treated her have

recorded in the discharge summaries, including Ext.A3, that

she has suffered severe head injury and also had to endure

other conditions, including hyponatremia, which, of course,

the learned Tribunal has, prima facie, found to be not

directly attributable to the accident. However, Ext.A4 -

Discharge Summary records right eye periorbital edema and

contusions over the right parietal region of Smt.Geetha

Varma; and that she had to undergo decompressive

craniectomy, with extra dural haemorrhage evacuation and

placement of bone flap in her abdomen, under General

Anaesthesia. She had to be ventilated electively under

relaxants and sedation, and the learned Tribunal has then

held that it is, perhaps consequent to all this, that

hyponatremia was also induced. The evidence further shows

that she was discharged on 18.10.2013; but had to undergo

physiotherapy and supportive care at home, further to

endure ayurvedic treatment, for pain on her left ankle and

heel, numbness of left shoulder and weakness of her left leg,

along with reduced perception of taste. It is after assessing MACA No.307/2018 & CO.45/2023 10'

all these that Ext.X1 - Disability Certificate recorded the

permanent disability of Smt.Geetha Varma to be 50%, but it

specifically certifies that she has suffered very grievous head

injury.

12. When the afore is noticed, one must then assess

the aftermath of the injuries on Smt.Geetha Varma, whose

avocation requires focused intellectual capacity, as also

sharpness in thinking and assessment. The head injury has

left her with extremely impaired cognitive faculties and it is

without doubt - as is also undisputed - that she lost her job

as a trainer, consequently. The learned Tribunal has,

therefore, fixed her functional disability to be 75%, even

though Ext.X1 certified her whole body disability to be only

50%. I am of the firm view that the learned Tribunal has

acted without error at all in doing so because, Smt.Geetha

Varma would be unable to obtain any employment or

placement or to engage in any avocation similar to what she

was enjoying at the time of the accident for the rest of her

life. That said, though not specifically on record, the

submission of her learned counsel, Sri.D.Chandrasenan, that

she was an accomplished dancer, would really underpin the

horrific aftermath of the accident.

MACA No.307/2018 & CO.45/2023 11'

13. Viewed from the afore perspective, I have no doubt

that Smt.Geetha Varma is entitled to compensation to the

maximum extent as is warranted in law; but, the question

arises whether the learned Tribunal could have granted

compensation both for 'disability' and for 'loss of earnings'

under two different heads, adopting two different multipliers

and different yardsticks of income. In this regard, I am

certainly in favour of the Insurance Company and I am of the

opinion, guided by the various precedents that cover this

area, that the learned Tribunal could have only reckoned the

notional income of Smt.Geetha Varma, adding the eligible

future prospects as per National Insurance Company Ltd.

v. Pranay Sethi [2017 (4) KLT 662 (SC)]; and then to have

adopted the multiplier, as is authorised by Sarla Verma v.

Delhi Transport Corporation [2010 (2) KLT 802 (SC)].

14. Coming to the compensation awarded by the

Tribunal under the head 'pain and suffering' and 'loss of

amenities', I notice that it has only granted Rs.75,000/- and

Rs.1,00,000/- respectively under these heads. For the very

same reasons that I have said above, these sums are

extremely exiguous and I have no doubt that they have to be

substantially increased, which I propose to be Rs.1,50,000/- MACA No.307/2018 & CO.45/2023 12'

and Rs.2,00,000/- respectively.

15. Coming to the question of compensation under the

heads 'extra nourishment' and 'attendant charges', I notice

that the learned Tribunal has granted Rs.35,000/- and

Rs.9,200/- respectively, taking note of the fact that

Smt.Geetha Varma had suffered not more than 40 days of

inpatient treatment. I do not propose to enhance the

compensation under the head 'extra nourishment', but for

'attendant charges', certainly, an amount of Rs.500/- per day

would be the least that she would have expended.

16. Needless to say, the compensation awarded by the

Tribunal under the additional heads of 'disability' and 'short

expectation in life' would both require to be deleted.

In the afore circumstances, I order this appeal and

Cross Objection in part, in the following manner:

(a) The compensation under the head 'loss of earnings'

- which, in fact, is for "disability" - is enhanced to

Rs.51,18,750/-, from Rs.37,80,000/- awarded by the

Tribunal, reckoning the notional income of the Cross

Objector to be Rs.35,000/- per month, with 25% future MACA No.307/2018 & CO.45/2023 13'

prospects added and the multiplier of '30' adopted, as

conceded by the parties, which is in tune with Sarla Verma

(supra).

(b) The compensation under the head 'pain and

suffering' is enhanced to Rs.1,50,000/-, from Rs.75,000/-

awarded by the Tribunal.

(c) The compensation under the head 'loss of

amenities' is enhanced to Rs.2,00,000/-, from Rs.1,00,000/-

awarded by the Tribunal.

(d) The compensation under the head 'hospital

attendant charges' is enhanced to Rs.20,000/- from

Rs.9,200/-, reckoning Rs.500/- per day as expenses for the

same in the year 2013 - when the accident occurred - for a

total of 40 days of hospitalisation.

(e) The sum now awarded by the Tribunal under the

head 'compensation for disability' of Rs.12,60,000/- is

deleted.

(f) The compensation awarded by the Tribunal under

the head 'short expectation in life' of Rs.25,000/- is deleted.

(g) In all other respects, the Award of the Tribunal will MACA No.307/2018 & CO.45/2023 14'

stand intact.

Needless to say, the Cross Objector will be at full

liberty to recover the compensation, as modified by this

Court from the Insurance Company, along with interest at

the rate of 8% as awarded by the Tribunal, from the date of

claim until it is recovered. He will also be entitled to

proportionate costs on the enhanced amount as ordered by

the Tribunal.

In view of the afore, the amount as fixed above shall be

deposited by the Insurance Company before the learned

Tribunal, within a period of two months from the date of

receipt of a copy of this judgment.

Sd/- DEVAN RAMACHANDRAN JUDGE anm/stu