Thomas Mathew @ Kunju S/o Late Mathai vs Renju,S/O.Babu

T.R. Ravi, J.

This appeal was originally filed by the claimant before the Tribunal, seeking enhanced compensation. Pending the appeal, the claimant died and his legal legal representatives have been impleaded as additional 2nd and 3rd appellants.

On 06.01.2009, the claimant was travelling as a pillion behind the 1st respondent. The 1st respondent lost control over the motorcycle and hit against an electric post, resulting in serious injuries to the claimant. The claimant was taken to the Medical College Hospital, Kottayam and thereafter he was referred to the Indo-American Hospital, Vaikom for expert management. As a result of the accident, the claimant suffered left frontal contusion, compound depressed fracture of left frontal bone, left temporal bone fracture, fracture of roof and lateral wall of left orbit, fracture of medial and lateral wall of left maxillary sinus, increased left frontal hemorrhagic contusion with brain swelling, loss of vision of left eye and continuing epilepsy. He was treated as inpatient for 30 days. He was again hospitalised on two different occasions. The Medical Board in Exhibit X1 disability Certificate assessed his disability as 84%. The claimant was present before the Tribunal on 3.6.2012. He was brought with the help of two persons as he could not move freely without the help of bystanders. The Tribunal noticed that the claimant cannot speak in the usual manner. The claimant was aged 24 years at the time of the accident and he was a manual labourer. After noticing the nature of the injury and the condition of the claimant, the Tribunal however fixed the disability at 60%, which is challenged in this appeal. The claimant had claimed that he was earning Rs.6,000/- as monthly income. However, the Tribunal adopted a monthly income of Rs.4,500/-, which needs to be enhanced going by the yardstick in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd., reported in [AIR 2011 SC 2951]. The claimant was completely paralysed and he was being represented through his mother as next friend. He died on 3.6.2014. The counsel for the appellant submitted that the Tribunal went wrong in awarding Rs.25,000/- alone towards compensation for future bystanders expenses. It is further submitted that the disability should have been treated as 100% and the compensation towards permanent disability has to be reworked, applying the income of Rs.6,000/- per month. Though, I find considerable force in the above submission, taking into account the fact that the claimant died pending the proceedings, I am of the opinion that it would be just to adopt the disability of 84% assessed by the Medical Board. It is also submitted that the appellants are entitled to have the income increased by future prospects. Since it was found that the driver of the 2 wheeler did not have a driving license, the Tribunal had directed the Insurance Company to pay the compensation and recover the same from the 1st respondent.

The counsel for the Insurance Company submitted that the death happened 5 years after the accident, and there was nothing to show that the death was owing to the accident. It is further submitted that the compensation for permanent disability should be restricted to 5 years and the multiplier of 18 should not have been adopted. The counsel further argued that the compensation for loss of amenities that has been awarded by the Tribunal is on the higher side.

Having heard the counsel on either side, I am of the opinion that the amount awarded by the Tribunal has to be enhanced. The monthly income of the deceased ought to have been taken as Rs.6,000/- and not Rs.4,500/-. An increase of 25% of the income ought to have been made towards future prospects. Since compensation is being awarded treating the case as an injury case, the multiplier to be taken has to be 18 and cannot be restricted, merely for the reason that the claimant died. Having regard to the serious injuries suffered by the claimant, I am of the opinion that the amount awarded by the Tribunal towards amenities is reasonable. Regarding the future bystanders expenses, going by the dictum in Kajal v. Jagdish Chand reported in [2020 (1) KLT 743], the compensation has to be calculated by following the multiplier method. However, since the claimant died pending the appeal, I am of the opinion that the compensation under that head should be restricted to the period between the date of the accident and the date of his death, which is 65 months. Thus, the amount awarded towards loss of earnings should be Rs.72,000/- (6000x12). After deducting the sum of Rs.54,000/- awarded by the Tribunal, the appellants are entitled to an additional sum of Rs.18,000/- under that head. Adopting an amount of Rs.4,500/- as monthly expense for a bystander, an amount of Rs.2,92,500/-(4500x65) will be payable under that head future bystanders expenses for 65 months. After deducting the sum of Rs.25,000/- awarded under the head, the appellants will be entitled to an additional sum of Rs.2,67,500/- under that head. The compensation for permanent disability applying the income of Rs.6,000/- increased by 25% towards future prospects and applying the multiplier of 18 and disability of 100%, would be Rs.13,60,800/- (6000x125%x12x18x84%). After deducting the amount of Rs.5,83,200/- awarded by the Tribunal, the appellants will be entitled to an additional sum of Rs.7,77,600/- under that head.

In the result, the appeal is allowed and the appellants are awarded an enhanced compensation of ₹Rs.10,63,100/-(Rupees Ten Lakhs Sixty Three Thousand One Hundred only) with interest at the rate of 9% per annum from the date of filing of the claim petition (30.12.2009) till the date of realisation, with proportionate costs. The appeal was filed with a delay of 46 days. By order dated 24.03.2021, this Court condoned the delay in filing the appeal on condition that the appellants will not be entitled to interest on the enhanced compensation which may be awarded by this Court for the period of 46 days. The interest payable on the enhanced compensation shall be hence excluding the period of 46 days. The 2nd respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellants are liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellants shall be in accordance with law.