Kerala High Court

Deepa Cyrus vs The Divisional Manager on 30 October, 2024

                                                         2024:KER:80596
MACA 1577/2021
                                    1

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                 THE HONOURABLE MR. JUSTICE EASWARAN S.

   WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946

                          MACA NO. 1577 OF 2021

       AGAINST THE ORDER/JUDGMENT DATED 20.11.2020 IN OPMV NO.1 OF
2014   OF    III    ADDITIONAL   MOTOR     ACCIDENTS   CLAIMS   TRIBUNAL,
THIRUVANANTHAPURAM

APPELLANT/APPLICANT:

            DEEPA CYRUS
            AGED 49 YEARS
            W/O.VIJAY WILLS, T.C.11/1230, THRIVENI,
            NANTHENCODE, KOWDIAR P.O., THIRUVANANTHAPURAM -
            695 003.

            BY ADVS.
            R.T.PRADEEP
            M.BINDUDAS
            K.C.HARISH


RESPONDENT/3RD RESPONDENT:

            THE DIVISIONAL MANAGER
            ORIENTAL INSURANCE CO.LTD., ROHINI BUILDING,
            THAKARAPARAMBU ROAD, PAZHAVANGADI,
            THIRUVANANTHAPURAM - 695 023, (ISSUING OFFICE -
            PULIMATH BUILDING, P.B.NO.17, POST OFFICE
            JUNCTION, PUNALUR - 691 305.


            BY ADV A.R.GEORGE, SC


       THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 01.10.2024, THE COURT ON 30.10.2024 DELIVERED THE FOLLOWING:
                                                        2024:KER:80596
MACA 1577/2021
                                     2

                            JUDGMENT

The claimant in OP(MV) No.1/2014 on the files of the Additional

Motor Accidents Claims Tribunal-III, Thiruvananthapuram has come

up in this appeal dissatisfied with the quantum of compensation

awarded by the Tribunal.

2. The facts, in brief, are as follows:

The claimant was travelling in a KSRTC Bus along Punalur-

Chadayamangalam MC Road on 15.7.2013 and at about 9.40 a.m. when

the bus reached near Sreerangam Curve, a private bus dashed against

the KSRTC bus and under the impact, the claimant sustained injuries.

She was taken to the hospital and underwent treatment. The insurance

company on receipt of the summons appeared and denied the material

averments in the petition. Primarily, it was contended that there was no

negligence on the part of the driver of the offending vehicle. On behalf

of the claimant, Exts.A1 to A13 were marked and the claimant was

examined as PW1. The claimant contended that she was working as the

Manager in M/s.Federal Bank Ltd. and was earning a monthly income

of Rs.52,047/-. It was also contended that as per Ext.A7 Standing

Disability Assessment Board Certificate from Government Hospital,

Thiruvananthapuram, the claimant had suffered 80% permanent 2024:KER:80596

disability and her right leg above the knee had to be amputated. Hence,

the claimant contended that the functional disability has to be assessed

at 100%, instead of 80% assessed by the Board. Insofar as the claim for

compensation for permanent disability is concerned, the Tribunal

concluded that the claimant/appellant has not suffered any loss of

earnings due to the accident because she continued to work as the

Manager of the Federal Bank and therefore, fixed a notional income at

Rs.12,000/- and calculated the disability post-retirement. Still further,

the claimant had also claimed an amount of Rs.11,93,000/- towards the

medical expenses. However, the same was rejected on the ground that

she had received compensation from the employer, namely M/s.Federal

Bank Ltd. Though the claimant had sought for compensation towards

the cost of replacement of the prosthesis leg, the same was not granted

in full. Considering the facts and circumstances, the Tribunal awarded

the following compensation:

Sl. Head of claim Amount Amount Basic vital details in No. claimed awarded a nut shell (Rs.) (Rs.) 1 Loss of earning 7,20,000/- 2,65,439/- 52047x153 days 2 Transportation expenses 10,000/- 5,000/- 3 Extra nourishment 10,000/- 7,750/- 250x 31 days 4 Damage to clothing 20,000/- 1,000/- 5 Medical expenses 20,00,000/- 21,000/- Ext.A4 series medical bills 6 Bystander's expenses 25,000/- 7,750/- 250 x 31 days 7 Pain and sufferings 5,00,000/- 4,00,000/-

2024:KER:80596

8 Loss of Amenities and 20,00,000/- 5,00,000/-

enjoyment in life 9 Permanent disability 1,00,000/- 14,97,600/- 9,000x12x9x80/100 10 Future treatment expenses 10,00,000/- 5,00,000/- 11 Disfigurement and loss of -- 2,00,000/-

       expectation of life
       Total                                           34,05,539/- Rs.34,06,000/- with
                                                      (Rounded to 8% interest per
                                                     34,06,000/-) annum          from
                                                                   01.01.14        till
                                                                   realisation

3. Heard Sri.R.T.Pradeep, the learned counsel appearing for

the appellant/claimant and Sri.A.R.George, learned counsel appearing

for the insurance company.

4. The learned counsel appearing for the appellant

Sri.R.T.Pradeep raised the following submissions:

(i) The disability as assessed by the Medical Board has been

fixed at 80%. However, the Tribunal ought to have taken

100% permanent disability, especially since the appellant

was not able to do her daily requirements without the help

of a bystander.

(ii) The appellant is aged 43 years and she has suffered because

of the injuries. The multiplier to be adopted in such

circumstances ought to have been 14, instead of 13 as

applied by the tribunal.

2024:KER:80596

(iii) The appellant/claimant is entitled to compensation for

replacing the prosthesis leg and also future treatment since

the prosthesis leg requires to be replaced every five years.

(iv) The tribunal has not awarded any future prospects and she

is entitled to 30% future prospects.

5. On the other hand, Sri.A.R.George, the learned counsel

appearing for the insurance company vehemently opposed the plea of

the appellant on various grounds. The learned counsel pointed out that

the appellant had continued her job and there was no loss of earnings.

Moreover, the appellant was also entitled to pension and thus, the

tribunal had correctly calculated the compensation towards the

personal disability. He relied on the judgment of the Hon'ble Supreme

Court in Raj Kumar v. Ajay Kumar [2011 (1) KLT 620 (SC)] to

contend that merely because the Medical Board has assessed the

disability at 80%, it is not absolutely necessary that the Tribunal should

apply the percentage of disability. He further pointed out that the

income taken by the Tribunal at Rs.12,000/- is without any basis.

Though no appeal has been preferred by the Insurance Company, the

learned counsel relied on the provisions of Order 41 Rule 33 of the Code

of Civil Procedure to contend that the amount fixed as notional income 2024:KER:80596

is liable to be reduced. It is further submitted by the learned counsel

that there was no change in the artificial limb. He also relied on the

decision of a Division Bench of this Court in Kumaran and others v.

Roy Mathew and others (2017 (1) KHC 594) and in The United

India Insurance Co Ltd v. Preetha Krishnan [MACA 210 of

2015 decided on 28-6-2024] and submitted that in such cases the

split multiplier has to be necessarily applied and the Tribunal has thus

rightly applied the split multiplier.

6. In reply, the learned counsel for the appellant

Sri.R.T.Pradeep would point out with reference to Ext.A13 that the

medical reimbursement granted by the employer, namely the Federal

Bank Ltd., was subject to condition that the amount so paid is liable to

be repaid on receipt of the compensation from the tribunal.

7. I have considered the rival submissions raised across the

bar.

8. Based on the rival submissions, this Court feels that it is

necessary to give its findings on the following points:

(1) Whether the Tribunal was justified in applying the principle

of split multiplier while calculating the disability

compensation?.

2024:KER:80596

(2) Whether the claimant is entitled to any compensation

towards the cost of replacement of the prosthesis leg.

(3) Whether the functional disability of the appellant is required

to be fixed at 100% from 80%.

(4) Whether the appellant is entitled to future prospects.

(5) Whether the Tribunal was justified in not awarding any

amount towards the medical treatment in view of Ext.A13

letter.

9. In order to sustain her claim for 100% functional disability,

the appellant relies on Ext.A7 certificate of disability issued by the

Standing Disability Assessment Board, General Hospital,

Thiruvananthapuram. A perusal of Ext.A7 would show that the

appellant had to undergo amputation of the right leg above the knee and

80% has been fixed as permanent disability. It is thus clear that the

appellant had suffered permanent disability. Therefore the entitlement

of appellant-claimant to claim compensation for the disability is beyond

doubt. It must be noted that the appellant was working as the Manager

of Federal Bank during the time of the accident. Ext.A5 salary certificate

dated 15.1.2014 shows that the appellant was drawing a salary

Rs.52,047/- After deducting income tax, the salary of the appellant 2024:KER:80596

comes to Rs.50,047/-. The Tribunal, while answering the claim for

compensation, found that there was no loss of income from service.

However, it was ordered that a different conclusion has to be arrived,

since the injury will affect her day-to-day affairs and also will affect in

availing any other avocation after retirement and hence required to be

compensated. In support of its findings, the Tribunal relied on the

judgment of the Hon'ble Supreme Court in Dinesh Singh v. Bajaj

Allianze General Insurance Company Ltd. [2014 ACJ 1412] and

calculated the compensation as follows:

12,000x12x13x80/100 = Rs.14,97,600/-

10. The learned counsel appearing for the appellant,

Sri.R.T.Pradeep, took exception to the findings of the Tribunal. The

learned counsel further pointed out that as per the evidence given by the

claimant, she is now using a wooden leg and because of the artificial limb

she is facing serious difficulties to squat and sit normally. She had

deposed in her cross-examination categorically that due to the injuries,

she is unable to do her avocations normally. With specific reference to

the affidavit in view of the chief examination, the learned counsel for the

appellant pointed out that because of the accident, the appellant is not

able to do any household work and also unable to attend to her father 2024:KER:80596

and mother. She is spending nearly Rs.20,000/- per month for a

bystander. However, these aspects have not been seriously controverted

by the insurance company even while she was cross-examined, nor by

producing any independent evidence. Therefore, the learned counsel

pointed out that the Tribunal ought not to have fixed the disability

compensation as done in the present case.

11. Having discussed the evidence of PW1, this Court must

notice that there is a categorical statement regarding the inability to do

the day-to-day work and in the absence of any contra evidence to

discredit the evidence or statement of PW1 either in the cross-

examination or through an independent evidence, this Court has no

hesitation to hold that the appellant had suffered serious injury and that

affected her normal functioning. In such circumstances, the question

before this Court would be as to how the Tribunal should have awarded

the compensation for the permanent disability. A perusal of the award

impugned in the appeal would show that the Tribunal had applied the

split multiplier. The question of application of split multiplier has been

deprecated by the Hon'ble Supreme Court in R.Valli and Others Vs

Tamil Nadu Road Transport Corporation Ltd. (2022 (5) SCC 2024:KER:80596

107) followed by this Court in Kamala v. Bajaj Alliance General

Insurance Company Ltd. [2024 KLT Online 2118].

12. The reading of the award impugned shows that the tribunal

not only applied the split multiplier but also fixed notional income when

the appellant-claimant had proved beyond doubt that she was earning a

salary of Rs.52,047/- while working as the Manager in the Federal Bank.

The question therefore, would be whether the Tribunal should have

taken the amount of Rs.52047/- less (-) Rs.2000/- payable towards

income tax or it should have fixed a notional income. The question is

however no longer res integra in the light of the judgment of the

Supreme Court in Dinesh Singh (supra). The Apex Court in

unequivocal terms held that in a case of permanent disability, the

claimant is entitled to be compensated for the injury suffered by

him/her irrespective as to whether he/she was employed. Para 10 of the

judgment reads as under:

"10-We have considered the material placed before us, particularly the evidence of the Doctor, who stated that the appellant suffered 60% disability of the total body, and in his cross - examination denied the suggestion that the appellant does not require any further treatment. The fact that the appellant has resigned as Quality Engineer from Hospet Steels Ltd and took up desk job in Industrial Development Bank of India 2024:KER:80596

because of his permanent disability, suffered by him in the accident is not in dispute. Obviously, because of the permanent disability suffered by the appellant, who is an Engineer by profession, cannot take up such profession, which requires moving from one place to other place. Therefore, the reasoning of the High Court that the appellant has not suffered any financial loss because of permanent disability having regard to the fact that subsequently he took up employment in Industrial Development Bank of India as Grade - B Officer, cannot be sustained. Once the permanent disability is fixed, taking into consideration, its impact on the employment / profession of the claimant, the compensation has to be awarded. Since the disability suffered by the appellant, which is fixed at 60% and which is permanent in nature, impacted his employment and future prospects, we are of the considered opinion that the Tribunal has rightly determined the compensation Rs. 12,840/- x 12 x 17 = Rs. 26,19,360/-towards loss of future earnings, and taking into consideration the 60%permanent disability suffered by the appellant, awarded him the actual compensation under the head 'loss of future earnings' at Rs. 15,71,616/- by rounding off the same to Rs. 15,72,000/-."

13. In Robin Babu v. Kunjappan & Others [2015(4) KHC

91] a Division Bench of this Court applied the above principles and

granted compensation for the claimant despite him being employed in

the Excise Department of State of Kerala.

2024:KER:80596

14. Pertiently, without noticing the above binding principles, this

Court had proceeded to hold in several appeals that in the absence of

any loss of earning for claimants who were gainfully employed and

continued their work despite the disability caused due to the accident

are entitled to compensation for disability only after their retirement.

15. In Akhilesh Chandran v. Sabu Varghese & Others [2024

KLT Online 2499] this Court was called upon to reconcile the conflict

of precedents . Applying the principles in Dinesh Singh (Supra) and

Robin Babu (Supra) this Court resolved the conflict and held that the

decision of the Three Judge Bench of the Supreme Court will prevail

over all other decisions and thus applied the aforesaid principles and

granted the compensation.

16. Facts and law presented before this Court in this appeal is

similar to one in Dinesh Singh (supra) and Robin Babu (supra). It

is true that Hon'ble Apex Court had fixed the notional income despite

the fact that the appellant was working as the Manager of a Bank which

was the subsequent vocation pursued by him after the accident.

Applying the principles in Dinesh Singh (supra), a Division Bench of

this Court had in Robin Babu (supra) had taken the income of the

claimant while he was working as an Excise Inspector and calculated the 2024:KER:80596

same for the purpose of computing the compensation towards the

personal disability. In Akhilesh Chandran (supra), this Court was

called upon to decide whether the claimant therein working as a

Manager in an Urban Co-operative Bank, who had suffered 14%

disability, was entitled to have his entire income calculated for the

purpose of computation of compensation towards continuing &

permanent disability. Considering the nature and the percentage of

disability, this Court applied the principle in Dinesh Singh (supra) and

fixed the notional income at Rs.15,000/- in Akhilesh Chandran

(supra).

17. Should this Court apply the same principle as in Akhilesh

Chandran (supra), or a different approach is required? But it must be

remembered that the appellant had to undergo amputation of her right

leg above the knee. It must also be remembered that in Rajesh and

others Vs Rajbir Singh and others [2013(3) KHC 212], the Three

Judge Bench of the Hon'ble Supreme Court considered the salutary

principles behind the grant of compensation under Section 166 of the

Motor Vehicles Act, 1988. Para 7 of the Judgment reads as under:

"The expression 'just compensation' has been explained in Sarla Verma's case (supra), holding that the compensation awarded by a Tribunal 2024:KER:80596

does not become just compensation merely because the Tribunal considered it to be just. 'Just Compensation' is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. After surveying almost all the previous decisions, the Court almost standardised the norms for the assessment of damages in Motor Accident Claims."

Therefore, it is clear that the appellant is entitled for a just and fair

compensation. What would be the "just and fair compensation" will

have to be judged in the light of the evidence tendered by the appellant

through oral and documentary evidence which remain unimpeached. In

the light of the overwhelming evidence on record at the side of the

appellant and in the absence of any evidence on the side of the insurance

company, this Court is inclined to hold that the appellant's injury, being

serious enough, has to be adequately compensated. What should be

then the income of the appellant. At any rate, the order of the tribunal

fixing it at Rs.9000/- is beyond one's comprehension.

18. In Karthik Subramanian Vs B.Sarath Babu and

Another [2021 KHC 3213], the Hon'ble Supreme Court considered

a similar issue. The appellant therein was earning Rs.37,500/- at some 2024:KER:80596

point of time and taking 50% of the above amount the Apex Court fixed

the income at Rs.18,750/- for the purpose of calculating disability

compensation.

19. In this case, there is clear cut evidence showing the salary

earned by the appellant-claimant. The salary drawn by the claimant

after deducting income tax comes to Rs.50,047.50. In the peculiar facts,

this Court feels that since the appellant did not lose her job, it would be

wholly impermissible to take the entire salary for calculating the

disability compensation. In the considered view of this Court, it would

be reasonable to take 50% out of the total income of the appellant-

claimant for the purpose of calculating disability compensation and

apply the multiplier as 14 and 30% future prospects has to be added and

in which case, the income would be Rs.32,500/-(25,000+7500). The

details of the compensation the appellant is entitled to are given in the

table discussed below.

20. Coming to the second question as to whether the appellant

is entitled to compensation towards the change of the prosthesis, this

Court is of the considered view that nothing has been brought on record

to discredit the evidence of the appellant that she had to fit in with a

wooden leg consequent to the amputation. In Vivek G v. National 2024:KER:80596

Insurance Company Ltd. [2023 KHC 2941], the Hon'ble Apex

Court had occasion to consider the question as to whether compensation

could be awarded for the change of prosthesis. It is to be noted that the

Hon'ble Apex Court upheld the findings of the Tribunal granting

compensation of Rs.20,00,000/- being the cost required for

replacement of the prosthesis at Rs.5,00,000/- each in every five years,

and thus, awarded the compensation for four times. It is to be noted

that the claimant before the Apex Court was aged only 16 years. But, the

fact remains that the cost for change of prosthesis was upheld by the

Apex Court. Considering the fact that the appellant herein was aged 43

years at the time of the accident, this Court deems it appropriate to grant

the compensation for the change of prosthesis at least for two occasions

since the tribunal had already awarded an amount of Rs.5,00,000/-

towards future treatment expenses the appellant is entitled to a further

amount of Rs.10,00,000/-.

21. The next question to be considered is whether the appellant

is entitled to have the functional disability reckoned at 100%. In Rekha

Jain Vs National Insurance Company Ltd. [(2013)8 SCC 389]

the Apex Court laid down the guidelines for determining the functional

disability qua the permanent disability assessed by the medical board.

2024:KER:80596

22. In determining the functional disability, the avocation of the

claimant has to be given predominant importance qua the nature of

disability suffered by her. It has come out in evidence that although the

appellant had undergone amputation of the right leg above the knee, it

had affected her job since she had to do the field job actively which is

impaired due to the amputation of the right leg and further

inconvenience caused to her by the usage of the artificial limb . But the

fact remains that the claimant continued with her job. Thus the evidence

presented before this Court, do not persuade this Court to grant 100%

functional disability.

23. The next point raised is regarding the entitlement for future

prospects. It must be remembered that there is no rule that in injury

cases, the Tribunal shall not award future prospects. It has come out in

evidence that the appellant had suffered serious injuries. Considering

the fact that the age of the appellant is 43 years at the time of the

accident, it is to be noted that the awarding of future prospects is not for

the loss of earnings, but as compensation towards loss of earning future

income due to the disability. In her evidence, the appellant had

specifically stated that due to the disability, her future promotions are 2024:KER:80596

affected. Therefore, this Court is no hesitation to hold that the appellant

is certainly entitled for future prospects also.

24. Insofar as the claim for medical treatment is concerned,

Ext.A13 was taken into consideration for denying her claim. No doubt,

in Ext.A13 letter dated 18.1.2014, the Bank had sanctioned an amount

of Rs.11,45,003/- towards reimbursement of medical expenses.

However, the same was on a condition that as and when the appellant

received the claim pursuant to the award by the Motor Accidents Claims

Tribunal, the amount has to be reimbursed. Therefore, this Court is of

the definite view that the Tribunal could not have disallowed her claim

for the medical expenses. However, the claim for medical expenses can

be granted only on a proper verification by the Insurance Company with

the employer of the appellant, namely Federal Bank, as to whether the

appellant had reimbursed the bank the medical expenses received by

her. If not, the insurance company can directly forward the amount of

Rs.11,45,003/- to the Federal Bank towards the payment made by the

bank and the balance alone needs to be released to her. However, on

enquiry if it is found that the appellant has reimbursed the amount, then

the insurance company should release the payment directly to the

appellant.

2024:KER:80596

25. As an upshot of the findings as above, this Court finds that

the appellant is entitled to succeed. The appellant is entitled to

enhanced compensation as given below:

Sl. Particulars                          Compensation      Additional
No.                                     awarded by the amount granted
                                         Tribunal (Rs.)  by this Court
                                                                  (Rs.)
1.    Medical Expenses                       21,000/-       11,93,000/-
2.    Future           treatment           5,00,000/-      10,00,000/-
      expenses                                              (5,00,000x2)


3.    Permanent disability               14,97,600/-   28,70,400/-
                                   (12,000x12x13x80 [(25,000+7500)
                                                /100) x12x14x80/100
                                                         43,68,000 -
                                                          14,97,600]
                 Total amount enhanced by this Court         50,63,400

Thus, a total amount of Rs. 50,63,400/- (Rupees Fifty Thousand Sixty

Three Thousand and Four Hundred Only) is awarded as enhanced

compensation. The said amount shall carry interest at 8% per annum

from the date of the application till the realisation. The appellant would

also be entitled to proportionate costs in the case. The Insurance

Company shall deposit the enhanced compensation together with

interest and proportionate costs within a period of one month from the 2024:KER:80596

date of receipt of a copy of this judgment. The claimants shall furnish

the details of the bank account to the insurance company for transfer of

the amount.

Accordingly, the appeal is allowed.

Sd/-