Kerala High Court
The National Insurance Co. Ltd vs John Sunny on 21 May, 2025
MACA 2585/2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 21ST DAY OF MAY 2025 / 31ST VAISAKHA, 1947
MACA NO. 2585 OF 2018
OPMV NO.798 OF 2013 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,
ERNAKULAM
APPELLANT/3RD RESPONDENT
THE NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, NEAR
PADMA THEATER, M. G ROAD, KOCHI-35, REPRESENTED BY
ITS MANAGER.
BY ADVS.
SRI.CHERIAN GEORGE (Sr.)
K.S. SANTHI
LATHA SUSAN CHERIAN-SC
RESPONDENT/CLAIMANT
JOHN SUNNY
S/O. P.C. ANTONY, PUTHENPURAKKAL HOUSE,
PERUMALPPADY, ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK,
ERNAKULAM, REPRESENTED BY JIJI JOHN, W/O. JOHN
SUNNY, PUTHENPURAKKAL HOUSE, PERUMALPPADY,
ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK, ERNAKULAM-
682503.
BY ADVS.
SRI.R.SURENDRAN
KUM.S.MAYUKHA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 7.4.2025, THE COURT ON 21.05.2025 DELIVERED THE
FOLLOWING:
MACA 2585/2018
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JUDGMENT
Dated : 21st May, 2025
This is an appeal filed by the 3 rd respondent in OP(MV).798/2013 on the
file of the Motor Accidents Claims Tribunal, Ernakulam. (For the purpose of
convenience, the parties are hereafter referred to as per their rank before
the Tribunal).
2. The petitioner filed the above O.P. under Section 166 of the Motor
Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor
vehicle accident that occurred on 1.8.2007.
3. According to the petitioner, on 1.8.2007 at about 5.30 p.m., while
the petitioner was riding a motorcycle through Vypeen - Pallipuram State
Highway, a WagonR car bearing registration No.KL7-BD-1080 driven by the
1st respondent in a rash and negligent manner hit against his motor cycle and as
a result of which he fell down and sustained serious injuries.
4. The 2nd respondent is the owner and 3rd respondent is the insure of
the car. During the pendency of the claim petition, the 1 st respondent died and
additional 4th respondent was impleaded as his legal representative.
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5. The insurance company filed a written statement, admitting the
accident as well as policy, but disputing the negligence on the part of the driver
of the offending vehicle.
6. The evidence in the case consists of the oral testimonies of PW1 and
PW2 and documentary evidence Exts.A1 to A14, X1 and X2 and B1.
7. After evaluating the evidence on record, the Tribunal found
negligence on the part of the driver of the offending vehicle, awarded a total
compensation of Rs.71,66,080/- and directed the insurer to pay the same.
8. Aggrieved by the quantum of compensation awarded by the
Tribunal, Respondent No. 3 preferred this appeal.
9. Now the point that arises for consideration is the following:
Whether the quantum of compensation awarded by the Tribunal is just
and reasonable?
10. Heard Sri.Cherian George, the learned Senior Counsel appearing
for the appellant, and Smt.Latha Susan Cherian, the learned Standing Counsel
for the Insurance Company and Sri.R.Surendran, the learned counsel for the
respondent.
11. The Point: In this case the accident as well as valid insurance
policy of the offending vehicle are admitted. The petitioner sustained serious
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injuries in the accident. The injuries are lacerated wound on the right side of the
lower jaw and contused abrasion on the face and extreme head. CT scan of
brain would reveal multiple petechial contusions to the frontal occipital region,
intra ventricular haemorrage, sub arachnoid haemorrhage and corpus collosum
contusion.
12. Because of the injuries sustained in the accident, the petitioner
could not move his both lower limbs. In the award the Tribunal noticed that the
petitioner has no control over urination and motion. As per Ext.X2 disability
certificate issued by the Medical Board his permanent physical disability was
assessed as 75%. However, considering the pathetic condition of the petitioner,
the Tribunal has fixed his functional disability at 90% and assessed the
compensation.
13. The learned Senior counsel who is appearing for the appellant
would argue that the compensation awarded by the Tribunal is on the higher
side. The Tribunal has awarded a sum of Rs.13,44,000/- on the head loss of
earning, Rs.12,70,080/- towards the head disability and Rs.17,28,000/- towards
the head nursing expense, in addition to Rs.5,00,000/- each towards dis-
figuration, future treatment expense and loss of amenities. According to the
learned Senior counsel, the compensation awarded by the Tribunal on the above
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heads are on the higher side. On the other hand, the learned counsel for the
petitioner would argue that the compensation awarded by the Tribunal does not
call for any reduction.
14. According to the learned counsel for the petitioner, the petitioner
was a Mason by profession and he was aged 32 at the time of the accident. As
noticed by the Tribunal because of the injuries sustained in the accident, the
petitioner has been completely bedridden and both his lower limbs could not be
moved. The Tribunal also noticed that he had no control over urination and
excretion. In the above circumstances, though the functional disability of the
petitioner was fixed at 90% by the Tribunal, in fact it is to be taken as 100%.
Therefore, the functional disability of the petitioner is fixed at 100%.
15. As per the claim petition, the petitioner used to get a daily income
of Rs.400/-. The Tribunal has fixed his monthly income at 7000/-. In order to
prove the income of the petitioner, his wife was examined as PW2 and she gave
evidence to the effect that her husband was a Mason by profession and used to
get an income of Rs.400/- per day. As per the decision in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC
236] the notional income of a Coolie during the year 2007 will come to
Rs.6000/-. In the above circumstances, in the light of evidence of PW2, and
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considering the fact that the petitioner was a Mason by profession, his notional
income is fixed at Rs.8000/-.
16. On the date of accident, the petitioner was aged 32 years.
Therefore, 40% of the monthly income is to be added towards future prospects,
as held in the decision in National Insurance Co. Ltd v. Pranay Sethi
[(2017) 16 SCC 680] and the multiplier to be applied is 16 as held in Sarla
Verma v. Delhi Transport Corporation, [(2009) 6 SCC 121]. In the
above circumstances, the loss of disability will come to Rs.21,50,400/-.
17. Since the functional disability of the petitioner is taken as 100%,
no separate compensation can be awarded on the head loss of earnings.
Therefore, the compensation awarded by the Tribunal on the head 'loss of
earnings' will be deducted.
18. Since the petitioner is completely bedridden as both his lower
limbs are motionless and he has no control over urination and excretion, he
needs the assistance of a bystander, around the clock, for the rest of his life. In
the decision in Kajal v. Jagdish Chand and Others, 2020 KHC 6114, in the
case of a 12 year old girl almost in similar condition, the Apex Court has
awarded the expense of two bystanders at the rate of Rs.5000/- each per month.
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19. In the instant case also, since the petitioner requires the assistance
of a bystander for the rest of his life for anything and everything, he also is
entitled to get the expense of two bystanders, at least at the rate fixed by the
Apex Court in the decision in Kajal (supra). Therefore, towards bystander
expense the petitioner is entitled to get a sum of Rs.19,20,000/- (5000 x 2 x 12
x 16).
20. The Tribunal has awarded Rs.2,00,000/- towards pain and
sufferings and Rs.5,00,000/- towards loss of amenities. According to the leaned
Senior counsel, since the functional disability of the petitioner was taken as
100%, the compensation awarded on the head loss of amenities is on the higher
side. However, in the decision in Kajal (supra) the Apex Court has awarded a
total sum of Rs.15,00,000/- towards pain and suffering and loss of amenities
taken together. In the decision in Benson George v. Reliance General
Insurance Co.Ltd and Another, (2022) 13 SCC 142, to an eight year old child
suffering from 100% disability, the Apex Court has awarded a sum of
Rs.10,00,000/- each towards pain and suffering and loss of amenities.
Considering the fact that in the instant case the petitioner is aged 32, I hold that
the compensation at the rate of Rs.5,00,000/- each for pain and suffering and
loss of amenities will be a reasonable compensation.
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21. It is true that the Tribunal has awarded a sum of Rs.5,00,000/-
towards future treatment expense. Considering the fact that the petitioner has
sustained 100% functional disability and he requires considerable amount
towards physiotherapy, cost of diapers, gloves and cleaning materials etc., it
cannot be said that the compensation awarded on the head future treatment
expense is on the higher side. Therefore, I find no grounds to reduce the
compensation awarded towards future treatment expense.
22. The Tribunal has awarded a sum of Rs.5,00,000/- towards
compensation for dis-figuration. Since his functional disability is taken as
100%, the compensation awarded on the above head is on the higher side and
hence, it is reduced to Rs.2,00,000/-.
23. The Tribunal has awarded a sum of Rs.5,00,000/- towards
transport to hospital and back to home. According to the learned Senior
counsel, the compensation awarded by the Tribunal on the above head is on the
higher side. According to the learned counsel for the petitioner, since the
petitioner is completely bedridden, he could be taken to hospital only in
ambulance and as such the compensation awarded on the head transport to
hospital does not call for any interference. On a perusal of the Award, it appears
that the Tribunal has awarded Rs.5,00,000/- towards cost of transportation on
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the ground that he may have to be taken to different hospitals during the rest of
his life. Even then, the compensation awarded on the head transportation
expenses is also on the higher side and hence it is reduced to Rs.2,00,000/-.
24. The compensation awarded by the Tribunal on other heads appears
reasonable and hence no change is required on those heads.
25. Therefore, the petitioner is entitled to get a total compensation of
Rs.65,94,400/- as modified and recalculated above and given in the table below,
for easy reference:
Sl.
No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal (in Rs.)
1 Loss of earnings 1344000 Nil
2 Transport to hospital and back to 500000 200000
home
3 Extra nourishment 100000 100000
4 Damage to clothes and articles 2000 2000
6 Treatment expenses 522000 522000
7 Compensation for pain and 200000 500000
sufferings
8 Compensation for loss of amenities 500000 500000
and comforts
9 Compensation for 1270080
2150400
disability/compensation for loss of
earning power
10 Nursing expense/bystander expense 1728000 1920000
11 Compensation for disfiguration 500000 200000
13 Future treatment expenses 500000 500000
Total 7166080 6594400
Amount reduced - 571680
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25. In the result, this Appeal is allowed in part and the compensation
payable to the petitioner is reduced to Rs.65,94,400/-. Respondent No.3 is
directed to deposit a total sum of Rs.65,94,400 (Rupees sixty five lakh ninety
four thousand four hundred only), less the amount already deposited, if any,
along with interest @ 8% per annum, from the date of the petition till
deposit/realisation, within a period of two months from today.
26. On depositing the aforesaid amount, the Tribunal shall
disburse 25% of the entire amount, excluding court fee payable, if any, to
the petitioner, forthwith.
27. The Tribunal is permitted to decide, after considering the
welfare, well being and the best interest of the petitioner, whether the
balance amount is to be disbursed in full, forthwith or in installments or to
be deposited in a Nationalised bank in fixed deposit in the name of the
petitioner and to permit withdrawal of interest alone for the time being.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/10.4.2025
