Kerala High Court
The Oriental Insurance Co. Ltd vs Naseera T.K on 4 April, 2025
MACA 3296/2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947
MACA NO. 3296 OF 2015
OPMV NO.444 OF 2014 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, KOZHIKODE
APPELLANT/2ND RESPONDENT
THE ORIENTAL INSURANCE CO. LTD.
KOZHIKODE, REPRESENTED BY ITS REGIONAL
MANAGER,REGIONAL OFFICE, ERNAKULAM NORTH,
KOCHI-18.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.LATHA SUSAN CHERIAN- SC
SMT.K.S.SANTHI
RESPONDENT/CLAIMANT
NASEERA T.K.
W/O. MUHAMMED, UCHAKAVIL HOUSE, P.O.PANNIKODE,
MUKKAM VIA, KOZHIKODE-673 602.
BY ADVS.
SRI.K.M.JAMALUDHEEN
SRI.SHRIKUMAR G. (Sr.)
SMT.LATHA PRABHAKARAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 10.3.2025, THE COURT ON 4.4.2025
DELIVERED THE FOLLOWING:
MACA 3296/2015
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JUDGMENT
Dated : 4th April, 2025
The 2nd respondent in OP(MV).444/2014 on the file of the Principal Motor
Accidents Claims Tribunal, Kozhikode, is the appellant. The above OP was filed by
the original Petitioner under Sections 140 and 166 of the Motor Vehicles Act
claiming compensation for the injuries sustained in a motor vehicle accident that
occurred on 17.10.2013. (For the purpose of convenience, the parties are referred to
as per their rank before the Tribunal).
2. According to the petitioner on 17.10.2013 at about 7.25 p.m while the
minor injured along with the petitioner aged 22, were travelling in a motorcycle, a
bus bearing registration No.KL-10-Z-7375 owned and negligently driven by the 1 st
respondent hit on the motor cycle and as a result of which they fell down and
sustained serious injuries. In the accident, the petitioner sustained serious spine
injury and the Tribunal found that the functional disability suffered by the petitioner
amounts to 100%, which is not under challenge.
3. According to the petitioner, the petitioner was a tailor and a fashion
designer earning Rs.12,000/- per month. On the basis of the evidence on record, the
Tribunal fixed the notional income of the petitioner at 12,000/-, which is also not
seriously disputed by the learned Senior counsel appearing for the appellant.
4. The main arguments advanced by the learned Senior counsel are to the
effect that after taking the functional disability of the petitioner as 100% and
assessing the loss of disability accordingly, the Tribunal has awarded a sum of
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Rs.7,20,000/- on the head 'loss of earning from the date of accident till the appeal
period', a sum of Rs.20,79,000/- on the head 'expenses for physiotherapy for life
time' (350 x 15 days x 12 months x 33 years), and another Rs.27,72,000/- on the head
'expenses for care by home nurses for life' (7000 x 12 x 33). Further, the Tribunal
has awarded a sum of Rs.5,00,000/- each on the heads 'inability to perform marital
duties, inability to perform motherly duties to the child and inability to take care of
the family as a house wife'. Accordingly, a total sum of Rs.1,16,14,850/- was
awarded by the Tribunal which according to the learned Senior counsel is too much
on the higher side.
5. Relying upon the decision of the Hon'ble Supreme Court in Lalan D
@ Lal and Another v. Oriental Insurance Company Ltd., 2020 (9) SCC 805, he
would argue that in the above case, to a 34 year old victim of road traffic accident
suffering from 100% disability, the Apex Court has awarded only Rs.7,00,000/- as
lump-sum compensation for medical attendance charges and future medical
treatment and only Rs.3,00,000/- was awarded on the head pain and suffering and
only a token amount of Rs.10,000/- was awarded on the head loss of amenities of
life.
6. Relying upon the decision of the Hon'ble Supreme Court in Sidram v.
United India Insurance Company Limited and Ors., 2023 (3) SCC 439, he would
argue that in the case of a 19 year old victim of road traffic accident suffering from
100% disability, only Rs.50,000/- was awarded for loss of amenities of life and
Rs.3,00,000/- was awarded towards loss of marriage prospects, Rs.1,00,000/- was
awarded towards pain and suffering, that in Atul Thiwari v. Regional Manager,
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Oriental Insurance Company Ltd., 2025 ICO 22, in the case of a victim suffering
from 60% permanent disability involved in an accident in the year 2009, the total
compensation awarded by the Apex Court was Rs.48,00,000/- and that in Jithendran
v. The New India Assurance Company Limited (2022) 15 SCC 620, to the victim
of a road traffic accident involved in the year 2001 and suffering form 100%
functional disability, the total compensation awarded was only Rs.27,67,800/-. He
would further argue that, though in the decision in Benson George v. Reliance
General Insurance Co.Ltd and Another, (2022) 13 SCC 142, the Apex Court has
awarded Rs.10,00,000/- each on the heads pain and suffering and loss of amenities,
the said judgment was passed by the Apex Court invoking its power under Article
142 of the Constitution of India and as such it cannot be taken as a precedent by this
Court.
7. On the other hand, the learned counsel for the petitioner would argue
that the decision in Benson George (supra) is not one passed by the Apex Court by
invoking the power under Article 142 of the Constitution of India, but under Article
141 and as such, it is binding on this Court.
On a perusal of the above decision, it can be seen that after evaluating the
facts in the case, the Apex Court in paragraph 7 held that :
7. Considering the prolonged hospitalization and medical treatment and that the
claimant underwent multiple surgeries, we are of the opinion that the High Court
has erred in awarding Rs.2,00,000/ only under the head pain and suffering. The
pain, suffering and trauma suffered by the claimant cannot be compensated in
terms of the money. However, still it will be a solace to award suitable
compensation under different heads including the pain, shock and suffering, loss of
amenities and happiness of life.
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7.1 In the facts and circumstances of the case due to the prolonged hospitalization
and the multiple brain injuries/injuries sustained by the claimant and that he is still
in coma and is bedridden, we are of the opinion that if the amount of compensation
under the head of pain, shock and suffering is enhanced to Rs.10,00,000/- (Rupees
Ten Lakhs), it can be said to be a reasonable amount under the head pain, shock
and suffering.
7.2 Similarly, the amount of Rs.1,00,000/- awarded by the High Court under the
head loss of amenities and happiness can also be said to be on lower side. As
observed hereinabove no amount can compensate the loss of amenities and
happiness more particularly a person who is in coma since number of years and is
bedridden for the entire life."
8. From the above judgment of the Hon'ble Apex Court it can be seen
that valid reasons were given by the Apex Court for enhancing the compensation
awarded by the High Court on the heads 'pain and suffering' and 'loss of amenities'
and it is not an order passed by invoking the power under Article 142, but it is an
order passed under Article 141 of the Constitution of India.
9. In the decision in Sidram (supra) by relying upon the decision in Raj
Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343), the Apex Court reiterated
a general principles relating to compensation in injury cases, in paragraph 40 as
follows :-
"In the case of Raj Kumar (supra) this Court has explained in the following terms
the general principles relating to compensation in injury cases and assessment of
future loss of earnings due to permanent disability:
General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988("the Act", for short) makes
it clear that the award must be just, which means that compensation should, to the
extent possible, fully and adequately restore the claimant to the position prior to the
accident. The object of awarding damages is to make good the loss suffered as a
result of wrong done as far as money can do so, in a fair, reasonable and equitable
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manner. The court or the Tribunal shall have to assess the damages objectively and
exclude from consideration any speculation or fancy, though some conjecture with
reference to the nature of disability and its consequences, is inevitable. A person is
not only to be compensated for the physical injury, but also for the loss which he
suffered as a result of such injury. This means that he is to be compensated for his
inability to lead a full life, his inability to enjoy those normal amenities which he
would have enjoyed but for the injuries, and his inability to earn as much as he
used to earn or could have earned. [See C.K. Subramania Iyer v. T. Kunhikuttan
Nair[(1969) 3 SCC 64 : AIR 1970 SC 376] , R.D. Hattangadi v. Pest Control
(India) (P) Ltd.[(1995) 1 SCC 551 : 1995 SCC (Cri) 250] and Baker v. Willoughby
[1970 AC 467 : (1970) 2 WLR 50 : (1969) 3 All ER 1528 (HL)] .]
6. The heads under which compensation is awarded in personal injury cases are the
following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation,
nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he
not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
10. In the instant case, since the petitioner was aged 22 on the date of the
accident, only 40% of the income could be added towards future prospects and the
multiplier to be applied is 18. Accordingly, the loss of disability will come to
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Rs.36,28,800/-. Therefore, the Tribunal was not justified in adding 50% of the
income towards future prospects.
11. Since the functional disability of the petitioner was taken as 100% and
the loss of disability was assessed as such, the Tribunal was not justified in awarding
a further sum of Rs.7,20,000/- from the date of accident till the appeal period.
Therefore, Rs.7,20,000/- awarded on the head 'loss of earning from the date of
accident till the appeal period' will be deducted.
12. Since the petitioner was aged 22 on the date of the accident as per the
decision in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 the
multiplier applicable is only 18 and as such, the Tribunal was not justified in
applying the multiplier 33. Therefore, the compensation awarded on the head
'expenses for care by home nurse for life' at the rate of Rs.7,000/- for 33 years will be
limited to 18 years, ie, Rs.15,12,000/-(7000x12x18). As I have already noted above,
in the accident, the petitioner, a 22 year old woman and a mother of 1 1/2 year old
child suffered very serious injuries and she suffered 100% functional disability. Ever
since the accident she is in the bed unable to move from there without the assistance
of a bystander.
13. In the impugned award, the Tribunal specifically noted that even now
the petitioner is unable to move from the bed and is confined to bed and requires the
service of another even to discharge her daily primary needs. In the accident, she
sustained A Grade spine injury and it was on the basis of such condition, her
functional disability was fixed by the Tribunal at 100%.
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14. In the decision in Kajal (supra) in a similar instance in the case of a
12 year old girl suffering from 100% disability and in paraplegia condition, the Apex
Court has awarded an expense of two bystanders at the rate of Rs.5,000/- each per
month for a period of 18 years. In the instant case also the victim is a lady and she
requires the assistance of another person for anything and everything including her
primary needs. In the above circumstances in this case the petitioner is entitled to get
the expense of two bystanders. It is true that the petitioner has not produced any
documents or additional evidence to prove the expense met with her towards
bystander expense. In the above circumstances, I hold that towards bystander
expense, the petitioner is entitled to get Rs.10,000/- per month, as in Kajal (supra)
for a period of 18 years which will come to Rs.10,000 x 12 x 18 = 21,60,000/-.
15. Towards the head 'expense for physiotherapy for life time' the Tribunal
has awarded a sum of Rs.20,79,000/- calculating the amount at the rate of Rs.350/- in
alternate days for a period of 33 years. As argued by the learned counsel for the 3 rd
respondent, the compensation awarded on the above head is too much on the higher
side and I hold that Rs.350/- each twice in a week for a period of 18 years will be a
reasonable compensation on the head 'expenses for physiotherapy for life time',
which will come to Rs.6,04,800/- (350 x 8 x 12 x 18).
16. The learned counsel for the petitioner would argue that the
compensation awarded by the Tribunal on the heads pain and suffering and loss of
amenities namely Rs.2,00,000/- and Rs.1,00,000/- respectively is too meagre when
compared to the sufferings of the petitioner.
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17. As argued by the learned Senior counsel, in the decision in Raj
Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343 ), the Hon'ble Apex
Court has awarded Rs.1,00,000/- towards pain and suffering and Rs.50,000/- alone
was awarded on the head 'loss of amenities'. In the decision in Kajal v. Jagdish
Chand and Others, 2020 KHC 6114, to a 12 year old girl suffering from 100%
disability a sum of Rs.15,00,000/- was awarded by the Apex Court towards pain and
suffering and loss of amenities. In the decision in Benson George (supra) a sum of
Rs.10,00,000/- each was awarded towards pain and suffering and loss of amenities to
a victim in coma stage. While considering the quantum of compensation to be
awarded on the heads pain and suffering and loss of amenities, the facts of each case
are to be considered separately and distinctly.
18. In the instant case, considering the fact that the petitioner was only 22
years at the time of the accident and she was a mother of 1 1/2 year old child and
because of the injury sustained in the accident, she lost her entire life and has to
remain in the bed during the rest of her life, I hold that towards pain and suffering
and loss of amenities a total sum of Rs.15,00,000/- will be a reasonable
compensation.
19. The Tribunal has awarded Rs.5,00,000/- each on the head 'inability to
perform marital duties', 'inability to perform motherly duties to the child' and
'inability to take care of the family as a house wife'. Considering the fact that because
of the injuries sustained in the accident, the petitioner lost her capacity to enjoy
marital life, Rs.5,00,000/- awarded on the above head 'inability to perform marital
duties' is sustained while the compensation awarded on the heads 'inability to
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perform motherly duties' and 'inability to take care of the family as a house wife' are
liable to be deducted.
20. No change is required, in the amounts awarded on other heads, as the
compensation awarded on those heads appears to be just and reasonable.
21. Therefore, the petitioner is entitled to get a total compensation of
Rs.1,02,61,450/-, as modified and recalculated above and given in the table below,
for easy reference:
Heads Amount awarded by the Amount given in Appeal
Tribunal
Transport to hospital 15000 15000
Loss of earnings from the date of 720000 nil
accident till the appeal period
Hospitalization for 80 days as per 64000 64000
Ext.A4 to 9 and X1 to X2
Medical expense as per A21 and 22 1,76,850 1,76,850
Future treatment 1,00,000 1,00,000
Pain and sufferings & 200000 15,00,000 (for both pain and
loss of amenities 100000 sufferings & loss of amenities)
Loss of income due to functional 38,88,000 36,28,800
disability assessed at 100%
Expenses for physiotherapy for life 20,79,000 6,04,800
time
Expenses for care by home nurse for 27,72,000 15,12,000
life
Inability to perform marital duties 500000 5,00,000
Inability to perform motherly duties to 500000 Nil
the child
Inability to take care of the family as a 500000 Nil
house wife
Bystander expense Nil
21,60,000
Total 11614850 rounded to 11614850 1,02,61,450
Amount reduced 13,53,400
22. In the result, this Appeal is allowed in part, and Respondent No.2 is
directed to deposit a total sum of Rs.1,02,61,450/- (Rupees one crore two lakh sixty
one thousand four hundred and fifty only), less the amount already deposited, if any,
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along with interest rate as ordered by the Tribunal from the date of the petition till
deposit/realisation, within a period of two months from today.
On depositing the aforesaid amount, the Tribunal shall disburse the entire
amount to the petitioner, excluding court fee payable, if any, without delay, as per
rules.
Sd/- C.Pratheep Kumar, Judge
Mrcs/17.3.
