Sherin.R vs Raveendra Varma
2023 Latest Caselaw 3340 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
                         MACA NO. 1971 OF 2018
 AGAINST THE AWARD DATED 10.12.2009 IN OP(MV) NO.1221/2005 OF THE
            MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA
APPELLANT:

             SHERIN.R, AGED 40 YEARS,S/O.RAJU,
             RESIDING AT CHARUVILA PUTHEN VEEDU,
             MATHUR.P.O,CHENEERKKARA VILLAGE,
             KOZHENCHERRY TALUK,PATHANAMTHITTA DISTRICT.

             BY ADVS.
             SRI.R.RAJASEKHARAN PILLAI
             SRI.KURIAKOSE MATHEW
             SMT.SABINA JAYAN
             SRI.SHAJI M PHILIP


RESPONDENTS:

    1        RAVEENDRA VARMA, RESIDING AT AMBA NILAYAM,
             MANJINIKKARA,OMALLOOR,PATHANAMTHITTA.

    2        KURUVILA K.THOMAS, MANAGING DIRECTOR,
             KALIYANICKA RUBBERS PVT.LTD,MUNDAKAYAM.

    3        AJAYAKUMAR, RESIDING AT KIZHAKKEMURIYIL HOUSE,
             KAIPUZHA,KULANADA.

    4        THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD,
             PATHANAMTHITTA.
             BY ADVS.
             SRI.C.R.REGHUNATHAN
             SRI.T.K.KOSHY
             SRI.LAL GEORGE
             SRI.SABU I.KOSHY
             SRI.B.HARRYLAL
             SRI SEBASTIAN VARGHESE
     THIS    MOTOR   ACCIDENT   CLAIMS     APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA 1971/18
                                       2

                           JUDGMENT

In a horrific accident which occurred on 12.12.2004, the

motor cycle in which the appellant was travelling, was collided

with the offending vehicle, driven in a rash and negligent manner.

The appellant sustained serious injuries, including to his vertebrae,

spinal code and brain; and the aftermath of the same, has left

him in a vegetative state, being fully bed-ridden and paralyzed.

He, represented through his father, thus filed OP(MV)

No.1221/2005 before the Motor Accidents Claims Tribunal,

Pathanamthitta (hereinafter referred to as 'the Tribunal' for short),

seeking compensation of an amount of Rs.19,51,000/-, limited to

Rs.15,00,000/-; but which has been allowed only to an extent of

Rs.12,03,415/-. He assails the quantum of the compensation as

being exiguous and woefully inadequate.

2. Sri.R.Rajasekharan Pillai - learned counsel for the

appellant, argued that, when the learned Tribunal itself has found

that his client was 'lying like a dead body', without any capacity

to move on his own, or to take care of even his basic needs, the MACA 1971/18

compensation awarded to him is much lower than what is eligible

to him. He argued that the learned Tribunal has, unfortunately,

not adhered to the ratio of various judgments of the Honourable

Supreme Court in this regard, including Ramchandrappa v.

Manager, Royal Sundaram Alliance Insurance Company Ltd.

[(2011) 13 SCC 236]; Rajani v. Oriental Insurance Company Ltd.

[2022 (5) KLT Online 1012]; Kajal V. Jagdish Chand and Others

[MANU/SC/0126/20] (Civil Appeal No.735/2020 arising out of

Special Leave Petition (C) No.15504/2019) and Jithendran v. New

India Assurance Company Ltd. and Another [2021 KHC 6653). He

thus prayed that this Appeal be allowed, granting just and fair

compensation to his client.

3. In response, Sri.Sebastian Varghese - learned Standing

Counsel for the Insurance Company, argued that, even though the

condition of the appellant is not contested - which fact is

discernible from Ext.A15-Disability Certificate issued by the

General Hospital, Pathanamthitta, to the effect that he is 100%

permanently disabled - the compensation awarded is adequate;

and thus prayed that this Appeal be dismissed. MACA 1971/18

4. I have considered the afore rival contentions on the

touchstone of the evidence on record, which I have analyzed very

carefully.

5. As the afore narrative would render it luculent, the

factum of the appellant having been reduced to a vegetative state

and forced to live an assisted life is without contest. The learned

Tribunal has adopted the notional income of the appellant to be

Rs.2,500/-, finding that there is no cogent evidence to prove his

income otherwise; but, while doing so, it omitted to note the

postulations in Ramachandrappa (supra), which mandates that

even in the case of a person whose income is unascertainable, or

who was working as a 'Coolie', in the year 2004 - when the

accident occurred - the minimum to be reckoned as the notional

income is Rs.4,500/-. Further, in Rajani (supra), the Honourable

Supreme Court has gone on to say that, in the case of a person

who is engaged in technical avocation, a more robust view ought

to be taken.

6. In the case at hand, Exts.A18 to A20 certificates would

clearly establish that the appellant was working as a Plumber MACA 1971/18

prior to the accident and his condition, thereafter, is graphically

discernible from Ext.A21 photograph, which indubitably establishes

that he is totally in a vegetative state.

7. Therefore, the notional income to be adopted by the

Tribunal, ought to have been guided by the afore two judgments;

and I, therefore, propose to take it as Rs.5,500/-, which is a mere

Rs.1,000/- more than what has been authorised by

Ramachandrappa (supra), in the case of a 'Coolie'. No doubt, 40%

future prospects also will have to be added to this, as per

National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT

662]; and the multiplier to be adopted is '17' as per Sarla Verma

and Others v. Delhi Transport Corporation & Another [2010 (2)

KLT 802], because the appellant was only 26 years at the time of

the accident.

8. The medical evidence, though not having to be stated

specifically - in view of 100% disability certified by the Medical

Board, shows that the appellant is unable to move of his own;

that he has loss of sensation, without any control over his bladder

and bowel functions and that he requires a full time attendant for MACA 1971/18

all purposes. In Kajal (supra) and Jithendran (supra), in

comparable situation, the Honourable Supreme Court has declared

that Rs.5,000/- per month must be made available to such a

person towards charges for an attendant. In fact, in Kajal (supra),

two such attendants were authorised; but taking note of the

factual circumstances involved in this case and since there is no

specific plea for such purpose, I deem it appropriate to award

Rs.5,000/- under such head.

9. In addition, when the evidence shows that the

appellant is even unable to control his ladder and bowel

functions, he will certainly require the support of medical articles

like diapers, gloves, catheters and such other, to maintain him in

a comfortable position, as far as possible. I, therefore, award an

amount of Rs.1,500/- additionally under this head for rest of his

life, adopting the multiplier of '17', being guided by Abhimanyu

Partap Singh v. Namita Sekhon and Another (Civil Appeal

No.4648/2022 arising out of SLP(C)No.18886/2019).

10. For the very same reasons said above, there can be

little doubt that 'Pain and Suffering' and 'Loss of Amenities' MACA 1971/18

suffered by the appellant can never be compensated in pecuniary

terms. I, therefore, propose to enhance the compensation under

the heads 'Pain and Suffering' and 'Loss of Amenities' to

Rs.1,00,000/- and Rs.3,00,000/- respectively, from Rs.50,000/-

each awarded by the Tribunal.

In the afore circumstances, this Appeal is partly allowed

with the following directions:

a) The compensation awarded by the Tribunal under the

head 'Disability' is enhanced to Rs.15,70,800/-, from

Rs.5,40,000/-; reckoning the notional income of the appellant to

be Rs.5,500/-, with 40% future prospects added to it and adopting

the multiplier of 17, as per Sarla Varma (supra).

b) In addition, an amount of Rs.10,20,000/- is awarded

towards 'Attender Charges', reckoning Rs.5,000/- per month and

adopting the multiplier of 17.

c) A further amount of Rs.3,06,000/- is awarded towards

the expenses for medical articles, reckoning Rs.1,500/- per month

and adopting the multiplier of 17 again.

d) The compensation under the head 'Pain and Suffering' MACA 1971/18

is enhanced to Rs.1,00,000/-, from Rs.50,000/- now granted by

the Tribunal.

e) The compensation under the head 'Loss of Amenities' is

enhanced to Rs.3,00,000/-, from Rs.50,000/- now granted by the

Tribunal.

d) In all other heads, the findings of the Tribunal will

remain unaltered.

Consequently, the appellant will be at liberty to recover the

full compensation, as enhanced by this Court, from the Insurance

Company, along with interest at the rate of 7.5% 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.

Needless to say, while calculating interest on the amount

enhanced by this Court, a period of 3040 days - being the delay

in filing this Appeal - shall stand excluded.

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 MACA 1971/18

of this judgment.

Sd/-

RR                      DEVAN RAMACHANDRAN
                              JUDGE