Low Compensation

Source: The Hitavada      Date: 14 Aug 2017 11:14:43


The respondent-Insurance Company admitted the valid insurance coverage over the offending jeep, as on the date of accident and has not proved any violation of policy terms and conditions by the driver and the owner. Hence, the Insurance Company was held liable to pay the compensation amount.

IN THE judgement of the case – Afnees (Unconscious) through his mother v. Oriental Insurance Co. Ltd. Vadakara and others, delivered on May 3, 2017, Justice Pinaki Chandra Ghose and Justice Rohinton Fali Nariman at the Supreme Court have held that the Kerala High Court division bench was not justified in reducing the accident compensation amount from Rs 10,88,800 to Rs 5,76,000 and awarding Rs one lakh for future treatment.
The unconscious Afnees through his mother approached the Supreme Court, aggrieved by the order passed by a division bench of Kerala HC at Ernakulam allowing the appeal of the Insurance Company and reducing the amount of compensation awarded by the Motor Accident Claims Tribunal, Vadakara, from Rs. 10,88,800 to Rs. 5,76,000 by applying a multiplier of 16 as the claimant was aged 19, at the relevant time and further partly allowing the appellant’s appeal and awarding Rs. one lakh for treatment in future.
In the petition filed by the appellant under Section 166 of the Motor Vehicles Act, 1988, her mother prayed on her behalf for compensation to the tune of Rs. 22,00,000. His claim was founded on the assertions that:
(i) The appellant had suffered grievous injuries in an accident which occurred on December 28, 2006, when his motor cycle was hit by a jeep driven in a rash and negligent manner and in a high speed.
(ii) He was initially treated at MCH, Calicut, and from there he was shifted to Indo American Hospital Brain and Spine Centre, Vaikom. He remained in the hospital from December 28, 2006, to February 11, 2007, and February 28, 2007, to March 15, 2007. Due to the accident, he was totally bed-ridden and is in a coma (vegetative) Stage and the Medical Board Assessed his disability at 100 pc. His treatment still continues with no improvement and may be in same position for remainder of his life.
(iii) At the time of accident his age was about 19 years and he was doing part-time job as a sales man drawing a monthly salary of Rs. 3,000 per month.
(iv) That on account of the accident, he is fully dependent for all activities of daily life.
(v) He is from a poor family and his parents being labourers, cannot afford the treatment expenses. After considering the pleadings and evidence, the Tribunal held that the accident was caused due to rash and negligent driving. The respondent-Insurance Company admitted the valid insurance coverage over the offending jeep, as on the date of accident and has not proved any violation of policy terms and conditions by the driver and the owner. Hence, the Insurance Company was held liable to pay the compensation amount. In appeals by the appellant and the Insurance Company, the HC division bench allowed the Insurance Company’s appeal and held that the multiplier of 16 should have been adopted instead of 18, as the claimant was aged 19 at the material time and reduced the compensation amount to Rs. 5,76,000. The HC further partly allowed the appeal of the appellant and awarded Rs. one lakh towards future treatment, when at that time the appellant was and is in coma. The personal sufferings of the survivors and disabled persons are manifold. Sometimes, those can be measured in terms of money but most of the times, it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term ‘compensation’ used in Section 166 of the Motor Vehicles Act, 1988, would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a specific injury or disability caused by an accident.
In the Court’s view, considering the age of the petitioner and the fact that he is fairly educated, it can be reasonably assumed that he would have earned at least Rs. 3,000 per month taking into account the disability of the petitioner to be cent per cent, the Tribunal rightly awarded the multiplier of 18 and came to a figure of Rs. 6,48,000 and the HC is wrong in allowing the appeal of the Insurance Company assessing the disability compensation at Rs. 5,76,000 by adopting the multiplier of 16.
Though the appellant had claimed an amount of Rs. 22,00,000, under different head as compensation, the Tribunal granted a meagre sum of Rs. 10,88,000 and the HC further reduced the compensation amount. The Court has been of the view that the compensation of Rs. one lakh awarded by the HC for future treatment was wholly inadequate as the HC without considering the fact that the appellant because of the accident has to remain in the bed in his remaining life and he needs a person for his care and caution every time.
In view of this the Supreme Court set aside the order passed by the HC insofar as it related to the disability compensation and upheld the order passed by the Tribunal insofar as the disability compensation is concerned. Regarding the future treatment, the Supreme Court modified the order passed by the HC.
In the apex court’s considered view, the loss sustained by the appellant cannot be compensated in terms of money, since the accident vanished the colourful dreams of a young man at his teenage. The pain and suffering, which had to be faced by each and every member of the family also cannot be measured. Therefore, the Court expressed the view that the cost of living as also the cost of expenses likely to be incurred for the treatment periodically has increased substantially.
Therefore, it would be proper to award a sum of Rs. 5 lakh to the appellant for future treatment. If this amount is kept in fixed deposit, the interest accruing on it will take care of the cost of the treatment, that is fees of the doctor and other ancillary expenses.
The compensation awarded by the Tribunal for the loss of amenities and extra nourishment and special diet was also meagre. It can only be a matter of imagination as to how the appellant will have to live for the rest of life in bed. The appellant may be expected to live for at least 50 years. During this period, he will not be able to live like normal human being and will not be able to enjoy life. Therefore, it would be just and reasonable to award him a sum of Rs. 5,00,000 for the loss of amenities and enjoyment of life.
In the result, the apex court has allowed the appeals. The Court has set aside the impugned judgement and award passed by the MAC Tribunal. The Court declared that the appellant is entitled to total compensation of Rs. 20,13,800 with 7 pc per annum interest from the date of filing the claim petition till the date of realisation. The payment was directed to be made within one month.