Kerala High Court

Shajahan vs Binu on 3 October, 2024

Author: V.G.Arun

Bench: V.G.Arun

                                                   2024:KER:73975




           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

              THE HONOURABLE MR.JUSTICE V.G.ARUN

 THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946

                    MACA NO. 3769 OF 2019

        AGAINST THE ORIGINAL AWARD DATED 15.03.2019   IN OPMV

  NO.216 OF 2016 AND MODIFIED AWARD IN IA NO.2241/2019 IN

    OPMV 216/16 DATED 26.6.2019 ON THE FILE OF THE MOTOR

              ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL

APPELLANT/APPLICANT:

          SHAJAHAN,
          AGED 22 YEARS
          S/O.JALEEL, SHIJI VILLA, PERUMKULAM, KEEZHATTINGAL
          VILLAGE, THIRUVANANTHAPURAM.


          BY ADV M.R.SARIN


RESPONDENTS/RESPONDENTS:

    1     BINU,
          S/O.SAVITHRI, NEDIYAVILA, PUTHEN VEEDU,
          VANCHIYOOR, ALAMCODE, TRIVANDRUM, PIN - 695 102.

    2     SHAJI,
          S/O.VISWANATHAN, NEDIYAVILA VEEDU KADAVILA,
          VANCHIYOOR, TRIVANDRUM, PIN - 695 035.
                                               2024:KER:73975

MACA.No.3769/2019 &CO 30/21
                                 2


    3      THE NEW INDIAN ASSURANCE CO.LTD.,
           MOTOR 3RD PARTY CLAIMS HUBS, GOVT PRESS ROAD
           STATUE, THIRUVANANTHAPURAM, PIN- 695 035.


           BY ADVS.
           SHRI.SURESH SUKUMAR
           SRI.LAL K.JOSEPH




      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 19.06.2024,ALONG WITH CO NO.30/2021, THE COURT ON
03.10.2024 DELIVERED THE FOLLOWING:
                                                  2024:KER:73975

MACA.No.3769/2019 &CO 30/21
                                 3

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

               THE HONOURABLE MR.JUSTICE V.G.ARUN

 THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946

                        CO NO. 30 OF 2021

                                IN

                       MACA NO.3769 OF 2019

        AGAINST THE AWARD IN OP(MV) NO.216/2016 OF MACT,

ATTINGAL

CROSS OBJECTOR:

           NEW INDIA ASSURANCE COMPANY LTD.
           MOTOR 3RD PARTY CLAIM HUB, GOVERNMENT PRESS ROAD,
           STATUE, THIRUVANANTHAPURAM REPRESENTED BY ITS
           ASSISTANT MANAGER, REGIONAL OFFICE, M.G ROAD,
           EERNAKULAM PIN 682 011



RESPONDENTS:

    1      SHAJAHAN
           S/O. JALEEL, KEEZHATTINGAL VILLAGE,
           THIRUVANANTHAPURAM 695 102

    2      BINU,
           NEDIYAVILA PUTHEN VEEDU, VANCHIYOOR, ALOAMCODE,
           THIRUVANANTHAPURAM 695 035
                                               2024:KER:73975

MACA.No.3769/2019 &CO 30/21
                              4


    3      SHAJI
           NEDIYAVILA VEEDU, KADAVIL, VANCHIYOOR,
           THIRUVANANTHAPURAM 695 035


           BY ADV M.R.SARIN


      THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 19.6.2024, ALONG WITH MACA.3769/2019, THE COURT ON
3.10.24 DELIVERED THE FOLLOWING:
                                                           2024:KER:73975

MACA.No.3769/2019 &CO 30/21
                                       5




                                  V.G.ARUN, J
                    = = = = = = = = = = = = = = = = =
                          M.A.C.A.No.3769 of 2019
                   =======================
                  Dated this the 3rd day of October, 2024


                                  JUDGMENT

On 1.12.2015, the ill fated day, the appellant suffered

grave injuries in a road traffic accident. The appellant was

aged only 19 years at the time of the accident and was a BBA

student. He was also earning some income, by working as a

newspaper boy. The appellant approached the Motor

Accidents Claims Tribunal claiming Rs.1,71,02,000/- as

compensation and limited the claim to Rs.1,00,00,000/- for the

purpose of court fee. The Tribunal initially awarded

Rs.53,01,770/- as compensation. Thereafter, the appellant

moved a review petition, pointing out that the Tribunal had

omitted to take note of the Medical Board's certificate,

assessing the appellant to be having 100% disability. That 2024:KER:73975

review petition was allowed by the Tribunal and the

compensation enhanced to Rs.79,01,200/-. Thereafter, the

Insurance Company filed another review petition, disputing the

medical expenses to the tune of Rs.3,84,350.51, out of the total

sum of Rs.40,00,100/- awarded under that head. The review

petition filed by the insurer was also allowed and Rs.1,57,200/-

deducted from the compensation awarded. Later, the Insurance

company filed another review petition, contending that out of

the compensation awarded towards medical expenses,

Rs.20,15,200/- is not expenditure incurred by the appellant,

since the bill for 8 items were not issued in the appellant's

name and for 2 items, only proforma invoices were produced.

Even though the Tribunal came to the conclusion that the

award is liable to be reviewed, the review petition was

dismissed, as this appeal was filed by that time.

2. Heard, learned counsel for the appellant and the

learned standing counsel for the Insurance Company.

3. The fact that the appellant suffered grave injuries in a

road traffic accident and the offending vehicle had valid policy 2024:KER:73975

are admitted. The dispute is only with respect to the quantum

of compensation awarded. Learned Counsel for the appellant

contended that the Tribunal had grossly erred in fixing the

appellant's monthly income at Rs.8000/-, as against the income

Rs.10,000/- per month claimed by him. Further, the

compensation granted towards bystander expenses, extra

nourishment, transportation to hospital, pain and suffering as

well as loss of amenities in life are on the lower side,

considering the gravity of the injuries and its impact on the

appellant's life. Placing reliance on the Division Bench

decision of this Court in Minor Basid v. K.C.Sanu and

Another [2018 (2) KHC 671], it is contended that the

appellant is liable to be compensated for shortened expectation

of life also.

4. Learned Standing Counsel for the Insurance Company

pointed out that the insurer has filed a cross objection,

aggrieved by the award of an excess amount of Rs.20,20,327/-

towards medical expenses, based on documents which were

not sufficient to substantiate the claim. It is submitted that, 2024:KER:73975

two among those bills are only proforma invoices pertaining to

supportive equipment and no bill or other document was

produced to prove actual purchase of those devices. Moreover,

after finding substance in the challenge made through a review

petition, the Tribunal had refrained from reviewing the award

only due to the pendency of this appeal. It is hence contended

that the cross objection ought to be allowed and the excess

amount, paid towards medical expenses, deducted from the

total compensation.

5. The challenging question to be answered is regarding

the inadequacy or otherwise of the compensation awarded to a

young boy, whose hopes and aspirations about life got

shattered by the accident. Adding to the appellant's woes, his

mother died within two days of the accident, presumably from

the shock of seeing the broken body of her son and the

apprehension that he may succumb to the injuries. Ext.A7

discharge summary issued from the KIMS Hospital, wherein

the appellant was under treatment from 11.12.2015 to

01.01.2016, reveals the gravity of the injuries sustained by 2024:KER:73975

him. The contextually relevant portion of Ext.A7 reads as

under:-

"Mr Shajahan was brought to our ER with history of RTA. He had a depressed skull fracture in the midline and cervical spinal cord injury with bony instability. His neurological status deteriorated with respiratory compromise hence he was intubated and ventilated. His imaging showed subluxation of the C5 vertebrae with severe cord compression at this level. CT scan of the brain showed multiple small contusions in left frontal region with skull fracture. X ray of the right shoulder showed fracture of proximal humerus. As the skull fracture ran across the midline, it was decided to treat the compound depressed fracture conservatively. He was taken up for emergency surgery on 11- 12-15. He underwent C4-6 laminectomy with posterior instrumentation and fusion with scalp wound exploration under GA on 11-12-15. Orthopedicians advised conservative management for his right humerus fracture in view of his neurological status. Postoperatively he was electively ventilated and he underwent a tracheostomy by ENT surgeons on 16-12-15. He was gradually weaned of the ventilator. Postoperatively he had improvement in the upper limb power to about grade 2-3/5, however the lower limb power remained at 0/5. He had a sensory level at T4. He developed respiratory tract infection for which a Pulmonology consultation was done and managed accordingly. He was decannulated on 28-12-15 in consultation with respiratory doctors and ENT surgeons. He had intractable diarrhoea form which he developed superficial ulcer in the gluteal region which was healing at the time of 2024:KER:73975

discharge. General surgeons advised conservative management."

6. Ext.A14 discharge summary issued by the

PARCHOSPITAL, where the appellant was treated as inpatient

from 06.10.2017 to 06.03.2018 reveals that he is quadriplegic

and has complete paralysis of lower limbs, loss of sitting

balance and sensory disturbances on lower limbs, plus bladder

and bowel dysfunction. The advice on discharge was to

continue exercises, breathing exercises and to frequently

change positions to avoid bed sores. After being discharged on

06.03.2018, the appellant was again admitted in the same

hospital on 10.03.2018 and continued as inpatient up to

28.07.2018. His condition on discharge as noted in Ext.A15, is

mild improvement in sensation on lower limbs and slight

improvement in sitting balance. The above documents show

that the appellant is in a vegetative state from the date of his

accident.

7. As has been often observed, money is no substitute for

a broken physical frame and a shattered future. Money can, at 2024:KER:73975

best, compensate for the loss of earnings, earning power, cost

of treatment, nursing, attendance etc. The vexing question

faced by courts and tribunals is as to how best the victim can

be compensated. As held by the Apex Court in Benson

George v. Reliance General Insurance Co. Ltd. and others

[(2023) 3 SCC 439], in its very nature, whenever a tribunal or

court is required to fix the amount of compensation in cases of

accident, it involves some guesswork, some hypothetical

consideration, some amount of sympathy linked with the

nature of the disability caused. But, all the aforesaid elements

have to be viewed with objective standards. The attempt of

this Court is also to determine the just and fair compensation

payable to the appellant, based on the facts and the medical

records.

8. The appellant was only 19 years old at the time of

accident and was studying for BBA. Along with his studies the

appellant had also taken up a part-time job as a newspaper boy

and, according to him, was earning Rs.10,000/- per month

from that job. As no evidence was produced to prove the 2024:KER:73975

appellant's income, the Tribunal fixed the monthly income as

Rs.8,000/-. In this context, it will be profitable to refer the Apex

Court's decision in Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC

236]. The facts of that case reveals that, according to the

claimant therein, he was earning Rs.4500/- per month when

the accident occurred in the year 2004. In the absence of

evidence to prove income, the Tribunal fixed the claimant's

monthly income as Rs.3000/- and the said finding was upheld

by the High Court. While allowing the appeal filed by the

claimant, the Apex Court found fault with the Tribunal for

fixing the monthly income at Rs.3000/-, considering that the

wages of labourers in the year 2004 was between Rs.100/- to

Rs.150/- per day or Rs.4500/- per month. This Court in Soman

v. Jinesh James and others [ILR 2020 (3) Kerala 1003] has

fixed the notional income of a coolie in the year 2010 at

Rs.7500/- per month. Taking guidance from the above

decisions, I find the appellant's claim of having earned

Rs.10,000/- per month, by working as a newspaper boy, to be 2024:KER:73975

reasonable. In the light of the law laid down in National

Insurance Company Limited v. Pranay Sethi and others

[(2017) 16 SCC 680], 40% of the monthly income is to be

added as future prospects. Thus calculated, the monthly

income of the appellant would be Rs.14,000/-. The

compensation awarded by the Tribunal towards loss of earning

and for permanent and continued disability are hence

reworked as under:-

Loss of earning - Rs.10,000x 12= Rs.1,20,000/-

Permanent and continued disability - Rs.14,000x12x18x100% = Rs.30,24,000/-

9. While considering the challenge against grant of only

Rs.3,00,000/- towards bystanders expenses, it is to be borne in

mind that the appellant is completely bedridden and requires

the service of a bystander day and night, throughout his life.

On a reasonable assumption, the average amount to be paid for

availing the service of a bystander will be at least Rs.6,000/-

per month, taking into account the future increase also. In

Kajal v. Jagdish Chand and others [(2020) 4 SCC 413], the 2024:KER:73975

Apex Court has, under similar circumstances, fixed the

attendant charges by taking '18' as the multiplier. Following

the same method, the bystander (attender) expenses is

reworked as under;

Rs.6000x12x18 = Rs.12,96,000/-

10. The next contention is regarding grant of only

Rs.1,50,000/- towards loss of amenities and failure to grant

compensation for shortened expectation of life. This

contention cannot be countenanced, since just compensation is

awarded for loss of future earning capacity due to permanent

disability. The above view is in tune with the decision of the

Apex Court in Rajkumar v. Ajay Kumar and Another [(2011)

1 SCC 343], wherein it is held that, when compensation is

awarded by treating the loss of future earning capacity as

100%, the need to award compensation separately under the

head of loss of amenities or loss of expectation to life may

disappear and as a result, only a token or nominal amount may

have to be awarded under those heads, as otherwise there may

be a duplication in the award of compensation.

2024:KER:73975

11. The other contention to be dealt with is regarding the

quantum of compensation granted for pain and suffering. The

numerous surgeries undergone by the appellant, including

laminectomy with scalp wound exploration and tracheostomy,

are indicative of the excruciating pain and prolonged suffering

which the appellant would have undergone. In fact, the

survival of the appellant, in spite of the extensive injuries

suffered by him, is nothing short of a miracle. He is even now

confined to bed and dependent on others for even his basic

needs. Therefore, the appellant's suffering is unending. Added

to this is the shock and trauma of having lost his mother in the

aftermath of the accident. Taking all the above factors into

consideration, the appellant is found entitled for Rs.10,00,000/-

as compensation towards pain and suffering. In arriving at

that figure, this Court was guided by the decision of the Apex

Court in Benson George (supra).

12. As just compensation has been awarded under all

other heads, the amounts are maintained as such.

2024:KER:73975

13. Based on the above discussion, the enhanced

compensation is computed as under-


Sl. Head of claim Amount     Total amount Enhanced
No.               awarded by after        compensation
                  the        enhancement
                  Tribunal   in appeal

                    Rs.           Rs.            Rs.
1   Loss         of 96,000/-      1,20,000/-     24,000/-
    earnings
2   Permanent     24,19,200/- 30,24,000/-        6,04,800/-
    and continued
    disability
3   Bystander       3,00,000/-    12,96,000/-    9,96,000/-
    Expenses
4   Pain      and 2,00,000/-      10,00,000/-    8,00,000/-
    suffering

    Total                                        Rs.24,24,800/-

14. Now, to the contention of the Insurance Company

that, out of the Rs.40,01,000/- granted towards medical

expenses, Rs.20,20,327/- was not actually expended for the

appellant's treatment. This argument is mainly based on two

proforma invoices of Rs.6,70,000/- and Rs,13,45,200/-

submitted along with the bills. Here, it is to be noted that the

award was once reviewed at the instance of the appellant and 2024:KER:73975

again, based on a review petition filed by the Insurance

Company. Even in that review petition, the Insurance

Company did not raise the contention regarding

unacceptability of the proforma invoices. The proforma

invoices, Sl.Nos.145 and 146 in Ext.A21 series, are with