✦ High Court of India · 07 Mar 2025

BY AD vs PRATHEESH.P

Case Details High Court of India · 07 Mar 2025
Court
High Court of India
Decided
07 Mar 2025
Bench
EASWARAN S
Length
1,686 words

Cited in this judgment

The brief facts necessary for the disposal of the cross- objection are as follows: On 03.07.2013, while the cross-objector/claimant, claiming to be a fisherman, was travelling on a motorcycle bearing registration No.KL-7/BB-5640 through Kollam- Alappuzha NH 47 in the north-south direction in front of Titanium Sponge Factory at Chavara, the offending KSRTC bus bearing registration No.KL- 15-6459 driven in a rash and negligent manner from south to CO No.76/2023 in MACA No.1456/2021 3 north direction i.e. in the opposite direction, hit against the motor cycle, causing injuries to the claimant. The insurance company appeared and filed a written statement contending that the negligence alleged against the 2nd respondent in the claim petition is not correct. The claim for compensation under various heads were also questioned. On behalf cross-objector/claimant, Exts.A1 to A15 documents were produced before the Tribunal. On behalf of the Insurance Company, Ext.B1, the case records relating to the Crime was produced. The cross-objector/claimant examined the eyewitness who saw the accident as PW1, while the insurance company examined RW1, the Investigating Officer through whom the CD File, Ext.X1 was marked. The Tribunal, on appreciation of the evidence, found that the report filed by the investigating officer runs contrary to the evidence of PW1, the eyewitness, and therefore discarded the Final Report and proceeded with the testimony of PW1 and fastened the liability on the shoulders of the Insurance Company.

3. The cross-objector/claimant contended that he was CO No.76/2023 in MACA No.1456/2021 4 earning an amount of Rs.20,000/- per mensum. The Tribunal, on analyzing the evidence, found that the claim of the cross- objector that he was earning Rs.20,000/- per mensum was not proved. Therefore, the Tribunal proceeded to fix the notional income at Rs.8,000/- and granted the following compensation: Sl.No. Heads Amount claimed Amount awarded 1 2 3 4 5 6 Loss of earnings Transport to hospital Extra nourishment Damages to clothing and articles Medicine Bystander expenses Compensation for pain and suffering compensation for continuing or permanent disability if any compensation for loss of amenities compensation for loss of earning power Compensation for future treatment 2,00,000/- 10,000/- 5,000/- 1,000/- 3,00,000/- 10,000/- 1,00,000/- 6,74,000/- 30,000/- 6,70,000/- 10,000/- 15,000/- 1,500/- 2,45,000/- 60,000/- 1,00,000/- 20,16,000/- 1,00,000/- 2,00,000/- Total 20,00,000/- 27,47,500/-

4. Heard, Smt.Anjana Kannath – learned counsel appearing for the cross-objector and Sri.Lal K.Joseph – learned counsel appearing for the Insurance Company.

5. The learned counsel for the cross-objector submitted CO No.76/2023 in MACA No.1456/2021 5 that though the claim has been restricted by the cross objector to Rs.50,000/-, if this Court is of the view that the cross-objector is entitled for compensation more than what is claimed, then the claimant is prepared to remit the deficit court fee.

6. It is under the above premises, that this Court is proceeding to consider the cross-objection on merits.

7. On a reading of the award passed by the Tribunal, it is seen that the Tribunal as per Ext.A11 has noticed the fact that, during the course of treatment, the claimant had to undergo amputation of right below knee with stump closer. Even though, in the absence of any disability certificate the Tribunal assessed the permanent disability at 100%, since this Court has already dismissed the appeal preferred by the Insurance Company, the inevitable conclusion is that the claimant is entitled to get just and fair compensation in tune with the law governing grant of compensation towards permanent disability. It is in the above backdrop that this Court will discuss the entitlement of the cross- objector for the compensation under the head permanent disability. CO No.76/2023 in MACA No.1456/2021 6

8. Before dwelling into the said issue, this Court need to address the question of the notional income liable to be fixed in respect of the claimant. In the claim statement, the claimant had contended that he was having an income to the tune of Rs.20,000/-. However, it must be noted that no evidence was adduced by the claimant to prove that he was earning an amount of Rs.20,000/-. However, it must be noted that while fixing the notional income at Rs.8,000/- per mensum, the Tribunal failed to consider the principle laid down by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]. Therefore, this Court finds that the claimant is entitled for an amount of Rs.9,000/- as notional income.

9. A perusal of the award passed by the Tribunal shows that under various non conventional heads like pain and suffering, attendant charges etc, the Tribunal has erred egregiously in not granting adequate compensation.

10. Future attendant charges – on a reading of the award, it appears that the Tribunal had granted bystander CO No.76/2023 in MACA No.1456/2021 7 expenses at Rs.200/- per day for ten months. The aforesaid grant is only for the period which the claimant underwent treatment in the hospital. However, the Tribunal did not grant any future attendant charges by applying the multiplier system as expounded by the Hon’ble Supreme Court in Kajal v. Jagdish Chand & Ors. [(2020) 4 SCC 413] [MANU/SC/0126/2020]. On applying the aforesaid principle, this Court finds that the claimant is entitled for attendant charges as follows: 9,000x12x15 = Rs.16,20,000/-.

11. Permanent disability - Once the notional income is fixed, then it is imperative for this Court to proceed to consider the quantum of compensation under the head permanent disability in accordance with the various principles laid down by the Hon’ble Supreme Court. In Kajal (supra), the Supreme Court considered the parameters for grant of compensation in respect of the claimant who is suffering from 100% permanent disability. Since this Court has fixed the income of the claimant at Rs.9,000/-, the compensation towards permanent disability is reworked as follows: Rs.12,600/-(40% future prospects added) CO No.76/2023 in MACA No.1456/2021 8 x12x15=Rs.22,68,000/-.

12. Pain and sufferings - In the light of the principles laid down by the Hon’ble Supreme Court in Kajal (supra), this Court finds that the claimant is entitled for a compensation of Rs.3,00,000/- towards pain and sufferings. Since the Tribunal has already awarded Rs.1,00,000/-, the claimant is entitled to get a further amount of Rs.2,00,000/- as compensation towards pain and suffering.

13. Loss of earning – It has come out in evidence that the claimant was undergoing hospitalization for ten months. The Tribunal did not thought fit to grant any amount towards loss of earning. While it is true that the Tribunal has granted compensation towards permanent disability by taking into consideration the functional disability at 100%, nothing prevents the Tribunal or this Court from granting the compensation under the heads loss of earning for the period for which the claimant was undergoing treatment. Hence, the claimant is entitled to get compensation for the loss of earning for ten months which is calculated as follows: Rs.9,000/- x 10 = Rs.90,000/- CO No.76/2023 in MACA No.1456/2021 9

14. Loss of amenities – Considering the nature of disability and also injuries suffered by the claimant, this Court finds that the claimant is entitled for a compensation of Rs.2,00,000/- under the head loss of amenities. Since the Tribunal has already granted Rs.1,00,000/-, the claimant will be entitled to get an enhancement of Rs.1,00,000/- under the head loss of amenities. Thus in view of the above, the cross objector/claimant is entitled for enhanced compensation as follows: Heads Amount awarded by the Tribunal Total compensation awarded in appeal Enhanced amount of compensation Notional income of the claimant is fixed at Rs.9,000/-. Adding 40% future prospects, the income would come to Rs.12,600/- 16,20,000/- [9000x12x15] 22,68,000/- [12600x12x15] 16,20,000/- 2,52,000/- [2268000- 2016000] Future attendant charges Nil Compensation for continuing or permanent disability Compensation for pain and suffering 20,16,000/- 1,00,000/- 3,00,000/- Loss of earning Nil Compensation for loss of amenities 1,00,000/- 90,000/- [9000x10] 2,00,000/- 2,00,000/- [300000-100000] 90,000/- 1,00,000/- [200000-100000] Total enhanced amount of compensation 22,62,000/- Accordingly, the cross-objector/claimant is awarded an CO No.76/2023 in MACA No.1456/2021 10 additional compensation of Rs.22,62,000/- (Rupees twenty two lakhs sixty two thousand only) over and above the compensation awarded by the Tribunal with interest @8% per annum from the date of petition till realization together with proportionate costs. Since the claimant had restricted the amount to Rs.50,000/-, the claimant is liable to pay additional court fees on the enhanced amount. The Insurance Company is directed to deposit the aforesaid amount within a period of two months from the date of receipt of a copy of this judgment. The Tribunal shall deduct the deficit court fees from the deposit before releasing the same. While, calculating interest, it is ordered that the claimant will not be entitled for interest for a period of 45 days, which represents the period of delay in filing the cross-objection. The appeal is ordered accordingly. Sd/- ACR EASWARAN S. JUDGE

The brief facts necessary for the disposal of the cross- objection are as follows: On 03.07.2013, while the cross-objector/claimant, claiming to be a fisherman, was travelling on a motorcycle bearing registration No.KL-7/BB-5640 through Kollam- Alappuzha NH 47 in the north-south direction in front of Titanium Sponge Factory at Chavara, the offending KSRTC bus bearing registration No.KL- 15-6459 driven in a rash and negligent manner from south to CO No.76/2023 in MACA No.1456/2021 3 north direction i.e. in the opposite direction, hit against the motor cycle, causing injuries to the claimant. The insurance company appeared and filed a written statement contending that the negligence alleged against the 2nd respondent in the claim petition is not correct. The claim for compensation under various heads were also questioned. On behalf cross-objector/claimant, Exts.A1 to A15 documents were produced before the Tribunal. On behalf of the Insurance Company, Ext.B1, the case records relating to the Crime was produced. The cross-objector/claimant examined the eyewitness who saw the accident as PW1, while the insurance company examined RW1, the Investigating Officer through whom the CD File, Ext.X1 was marked. The Tribunal, on appreciation of the evidence, found that the report filed by the investigating officer runs contrary to the evidence of PW1, the eyewitness, and therefore discarded the Final Report and proceeded with the testimony of PW1 and fastened the liability on the shoulders of the Insurance Company.

3. The cross-objector/claimant contended that he was CO No.76/2023 in MACA No.1456/2021 4 earning an amount of Rs.20,000/- per mensum. The Tribunal, on analyzing the evidence, found that the claim of the cross- objector that he was earning Rs.20,000/- per mensum was not proved. Therefore, the Tribunal proceeded to fix the notional income at Rs.8,000/- and granted the following compensation: Sl.No. Heads Amount claimed Amount awarded 1 2 3 4 5 6 Loss of earnings Transport to hospital Extra nourishment Damages to clothing and articles Medicine Bystander expenses Compensation for pain and suffering compensation for continuing or permanent disability if any compensation for loss of amenities compensation for loss of earning power Compensation for future treatment 2,00,000/- 10,000/- 5,000/- 1,000/- 3,00,000/- 10,000/- 1,00,000/- 6,74,000/- 30,000/- 6,70,000/- 10,000/- 15,000/- 1,500/- 2,45,000/- 60,000/- 1,00,000/- 20,16,000/- 1,00,000/- 2,00,000/- Total 20,00,000/- 27,47,500/-

4. Heard, Smt.Anjana Kannath – learned counsel appearing for the cross-objector and Sri.Lal K.Joseph – learned counsel appearing for the Insurance Company.

5. The learned counsel for the cross-objector submitted CO No.76/2023 in MACA No.1456/2021 5 that though the claim has been restricted by the cross objector to Rs.50,000/-, if this Court is of the view that the cross-objector is entitled for compensation more than what is claimed, then the claimant is prepared to remit the deficit court fee.

6. It is under the above premises, that this Court is proceeding to consider the cross-objection on merits.

7. On a reading of the award passed by the Tribunal, it is seen that the Tribunal as per Ext.A11 has noticed the fact that, during the course of treatment, the claimant had to undergo amputation of right below knee with stump closer. Even though, in the absence of any disability certificate the Tribunal assessed the permanent disability at 100%, since this Court has already dismissed the appeal preferred by the Insurance Company, the inevitable conclusion is that the claimant is entitled to get just and fair compensation in tune with the law governing grant of compensation towards permanent disability. It is in the above backdrop that this Court will discuss the entitlement of the cross- objector for the compensation under the head permanent disability. CO No.76/2023 in MACA No.1456/2021 6

8. Before dwelling into the said issue, this Court need to address the question of the notional income liable to be fixed in respect of the claimant. In the claim statement, the claimant had contended that he was having an income to the tune of Rs.20,000/-. However, it must be noted that no evidence was adduced by the claimant to prove that he was earning an amount of Rs.20,000/-. However, it must be noted that while fixing the notional income at Rs.8,000/- per mensum, the Tribunal failed to consider the principle laid down by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]. Therefore, this Court finds that the claimant is entitled for an amount of Rs.9,000/- as notional income.

9. A perusal of the award passed by the Tribunal shows that under various non conventional heads like pain and suffering, attendant charges etc, the Tribunal has erred egregiously in not granting adequate compensation.

10. Future attendant charges – on a reading of the award, it appears that the Tribunal had granted bystander CO No.76/2023 in MACA No.1456/2021 7 expenses at Rs.200/- per day for ten months. The aforesaid grant is only for the period which the claimant underwent treatment in the hospital. However, the Tribunal did not grant any future attendant charges by applying the multiplier system as expounded by the Hon’ble Supreme Court in Kajal v. Jagdish Chand & Ors. [(2020) 4 SCC 413] [MANU/SC/0126/2020]. On applying the aforesaid principle, this Court finds that the claimant is entitled for attendant charges as follows: 9,000x12x15 = Rs.16,20,000/-.

11. Permanent disability - Once the notional income is fixed, then it is imperative for this Court to proceed to consider the quantum of compensation under the head permanent disability in accordance with the various principles laid down by the Hon’ble Supreme Court. In Kajal (supra), the Supreme Court considered the parameters for grant of compensation in respect of the claimant who is suffering from 100% permanent disability. Since this Court has fixed the income of the claimant at Rs.9,000/-, the compensation towards permanent disability is reworked as follows: Rs.12,600/-(40% future prospects added) CO No.76/2023 in MACA No.1456/2021 8 x12x15=Rs.22,68,000/-.

12. Pain and sufferings - In the light of the principles laid down by the Hon’ble Supreme Court in Kajal (supra), this Court finds that the claimant is entitled for a compensation of Rs.3,00,000/- towards pain and sufferings. Since the Tribunal has already awarded Rs.1,00,000/-, the claimant is entitled to get a further amount of Rs.2,00,000/- as compensation towards pain and suffering.

13. Loss of earning – It has come out in evidence that the claimant was undergoing hospitalization for ten months. The Tribunal did not thought fit to grant any amount towards loss of earning. While it is true that the Tribunal has granted compensation towards permanent disability by taking into consideration the functional disability at 100%, nothing prevents the Tribunal or this Court from granting the compensation under the heads loss of earning for the period for which the claimant was undergoing treatment. Hence, the claimant is entitled to get compensation for the loss of earning for ten months which is calculated as follows: Rs.9,000/- x 10 = Rs.90,000/- CO No.76/2023 in MACA No.1456/2021 9

14. Loss of amenities – Considering the nature of disability and also injuries suffered by the claimant, this Court finds that the claimant is entitled for a compensation of Rs.2,00,000/- under the head loss of amenities. Since the Tribunal has already granted Rs.1,00,000/-, the claimant will be entitled to get an enhancement of Rs.1,00,000/- under the head loss of amenities. Thus in view of the above, the cross objector/claimant is entitled for enhanced compensation as follows: Heads Amount awarded by the Tribunal Total compensation awarded in appeal Enhanced amount of compensation Notional income of the claimant is fixed at Rs.9,000/-. Adding 40% future prospects, the income would come to Rs.12,600/- 16,20,000/- [9000x12x15] 22,68,000/- [12600x12x15] 16,20,000/- 2,52,000/- [2268000- 2016000] Future attendant charges Nil Compensation for continuing or permanent disability Compensation for pain and suffering 20,16,000/- 1,00,000/- 3,00,000/- Loss of earning Nil Compensation for loss of amenities 1,00,000/- 90,000/- [9000x10] 2,00,000/- 2,00,000/- [300000-100000] 90,000/- 1,00,000/- [200000-100000] Total enhanced amount of compensation 22,62,000/- Accordingly, the cross-objector/claimant is awarded an CO No.76/2023 in MACA No.1456/2021 10 additional compensation of Rs.22,62,000/- (Rupees twenty two lakhs sixty two thousand only) over and above the compensation awarded by the Tribunal with interest @8% per annum from the date of petition till realization together with proportionate costs. Since the claimant had restricted the amount to Rs.50,000/-, the claimant is liable to pay additional court fees on the enhanced amount. The Insurance Company is directed to deposit the aforesaid amount within a period of two months from the date of receipt of a copy of this judgment. The Tribunal shall deduct the deficit court fees from the deposit before releasing the same. While, calculating interest, it is ordered that the claimant will not be entitled for interest for a period of 45 days, which represents the period of delay in filing the cross-objection. The appeal is ordered accordingly. Sd/- ACR EASWARAN S. JUDGE

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