Motor Accidents Claims; Paul Varghese Vs. Shanveen [Kerala High Court, 10-06-2016]

Motor Vehicles Act, 1988 – Section 168 – A victim in a motor accident, who sustained injuries resulting disabilities has to be adequately compensated for the incidental expenses, including expenses towards future treatment, so as to enable him to recover from the disabilities caused by the tort feasor. However, while awarding just and reasonable compensation under the head future treatment expenses, considering the peculiar nature of the injuries sustained and the attendant circumstances, the Tribunal shall award interest for the said amount only from the date of award and not from the date of claim petition. Similarly, a victim in a motor accident who sustained serious injuries resulting in permanent disability has to be adequately compensated by awarding just and reasonable compensation under the heads extra nourishment, loss of amenities, loss of marriage prospects (if unmarried), loss of studies, etc. While awarding compensation under these heads, in excess of the conventional amounts, the Tribunal has to state valid reasons in order to show that such award of compensation is after careful examination of the facts and circumstances of the case and that it represents just and reasonable compensation.

# Motor Accidents Claims Tribunal


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

M.A.C.A.Nos.1225 & 2778 of 2014

DATED THIS THE 10th DAY OF JUNE, 2016

AGAINST THE AWARD IN OPMV 138/2011 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 14-02-2014

APPELLANT/PETITIONER IN O.P.(MV)

PAUL VARGHESE

BY ADVS.SRI.N.SUKUMARAN (SR.) SRI.V.K.BALACHANDRAN

RESPONDENT(S)/RESPONDENTS IN O.P.(MV)

SHANVEEN AND OTHERS

R2 BY ADV. SRI.MATHEWS JACOB (SR.) R2 BY ADV. SMT.PREETHY R. NAIR R5 BY ADV. SRI.P.JACOB MATHEW SRI.M.A.GEORGE SRI.A.A.ZIYAD RAHMAN

JUDGMENT

ANIL K.NARENDRAN, J.

These appeals arise out of the award passed by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)No.138 of 2011. M.A.C.A.No.1225 of 2014 is filed by the claimant in that Original Petition, claiming enhancement of the compensation awarded by the Tribunal. On the other hand, M.A.C.A.No.2778 of 2014 is filed by the 2nd respondent insurer of the motor car, contending that the compensation awarded by the Tribunal is highly excessive and as such, it cannot be considered as just and reasonable compensation as contemplated under

# Section 168 of the Motor Vehicles Act, 1988

(hereinafter referred to as ‘the Act’).

2. We heard the arguments of the learned Senior Counsel appearing for the appellant/claimant in M.A.C.A.No.1225 of 2014, and the learned Senior Counsel appearing for the appellant/insurer in M.A.C.A.No.2778 of 2014.

3. The appellant in M.A.C.A.No.1225 of 2014 (hereinafter referred to as the claimant) filed O.P.(MV)No.138 of 2011 on the file of the Motor Accidents Claims Tribunal, Ernakulam claiming compensation for the injuries sustained by him in a motor accident occurred on 18.9.2008, involving a motor car bearing registration No.KL-55/B-7770 owned by the 1st respondent in that Original Petition and insured by the 2nd respondent therein (hereinafter referred to as ‘the insurer’). On 18.9.2008, the claimant who was a second year MBBS student at Vinayaka Missions’ Kirupananda Variyar Medical College, Salem was travelling in motor car bearing registration No.KL-55/B-7770 along with his classmates. At about 10 pm, when the car reached near SNMV College Junction, it dashed on the backside of a lorry bearing registration No.TN-30/S- 8592. The driver of the car, namely, Sahil died on the spot. The claimant and one Jose Abraham sustained serious injuries.

4. According to the claimant, immediately after the accident he was admitted in Kovai Medical Centre and Hospital, Coimbatore. He was subsequently taken to Christian Medical College, Vellore and treated there. On 17.4.2009 he was taken to Kessler Institute of Rehabilitation, Philadelphia, USA, where he continued treatment till May, 2010. Thereafter, from June, 2010 onwards he is continuing treatment at several hospitals in Kerala. Alleging that the accident occurred due to the rash and negligent driving of Sahil, he filed claim petition before the Tribunal, claiming a total compensation of 83,26,400/- from the owner and insurer of the motor car.

5. The 1st respondent herein, the owner of the motor car filed written statement denying negligence on the part of Sahil, the driver of that vehicle. According to the 1st respondent, the accident occurred due to the negligence on the part of the driver of the lorry. The motor car was validly insured with the 2nd respondent/insurer and as such, the insurer is liable to indemnify him. He has also disputed the nature of injuries stated in the claim petition and also the quantum of compensation claimed.

6. The 2nd respondent insurer filed written statement, admitting insurance coverage of the motor car involved in the accident. However, they contended that there is violation of policy conditions, inasmuch as the accident was never reported, nor the vehicular documents produced before them for verification. The accident occurred at a junction while the lorry which was going ahead the motor car abruptly stopped and not due to the rash and negligent driving of Sahil. The car hit on the rear side of the lorry and as such, there is composite negligence on the part of the driver of the lorry. The insurer contended that, the compensation claimed is highly excessive and that, the claim is bad for non-joinder of necessary parties. In view of the plea of non-joinder, the driver, owner and insurer of the lorry were impleaded as addl. respondents 3 to 5 in the claim petition.

7. In spite of receipt of notice, addl. respondents 3 and 4 have not chosen to enter appearance before the Tribunal, as such they were set ex parte. The addl. 5th respondent, the insurer of the lorry, filed written statement contending that as per police records, no negligence can be attributed on the driver of the lorry. They have also contended that the compensation claimed is highly excessive.

8. Before the Tribunal, Exts.A1 to A30 were marked on the side of the claimant and the claimant himself was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. The certificate issued by the Medical Board at the Medical College Hospital, Kottayam was marked as Ext.C1.

9. After considering the pleadings and materials on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of Sahil, as he failed to keep safe distance from the lorry going in front of his motor car. Relying on the oral evidence of PW1 and also the records in Crime No.168/08 of Chettipalayam Police Station, Tamil Nadu, the Tribunal concluded that the accident occurred due to the rash and negligent driving of the motor car by Sahil and as such, the claimant is entitled to get compensation from the owner and insurer of that vehicle.

10. The Tribunal awarded 40,25,548/- as compensation under different heads, as against a total claim of 83,26,400/-, and allowed the claimant to realise the said amount together with interest at the rate of 8% per annum from the date of petition till realisation with proportionate cost from the owner and insurer of the motor car, who were held jointly and severally liable to pay the amount of compensation. The compensation awarded by the Tribunal under different heads are as follows;

Heads Amount claimed Amount awarded (In ₹.)
Loss of earnings 0 0
Partial loss of earnings 0 0
Transport to Hospital and back to home 300000 147435
Extra nourishment 200000 100000
Damage to clothes and articles 5000 500
Attendant expenses 45000 45000
Medical expenses 2700000 1161213
Cost of wheel chair 15500 15500
Physiotherapy expenses 45900 45900
Compensation for pain and sufferings 1000000 1000000
Compensation for disfiguration 0 0
Compensation for continuing and permanent/partial disability 1500000 810000 5000x12x75/100×8
Compensation for future treatments 1500000 200000
Compensation for loss of earning power 0 0
Compensation for loss of expectation of life/amenities and enjoyment in life/loss of marriage prospects. 1000000 500000
Compensation for short expectation in life 0 0
Amount stolen at the time accident 15000 0
Total 8326400 4025548

Since the motor car was covered by a valid insurance policy, the insurer of the said vehicle was directed to deposit the award amount before the Tribunal within one month on receiving a copy of the Award.

11. The learned Senior Counsel appearing for the appellant/claimant in M.A.C.A.No.1225 of 2014 would contend that, the compensation awarded by the Tribunal under the head transportation to hospital is on a lower side and that the Tribunal ought to have awarded the entire amount claimed under this head. Similarly, considering the prolonged treatment and hospitalisation and also the physical condition of the claimant, the tribunal ought to have granted the entire amount claimed under the head extra nourishment. The learned Senior Counsel would point out that, while awarding compensation under the head medical expenses the Tribunal has not taken into account the entire amount covered by medical bills. As per Ext.C1 certificate issued by the Medical Board, the claimant has 75% permanent whole body disability and even now he is confined to wheel chair. Since the claimant has to discontinue his MBBS studies, the Tribunal ought to have awarded the entire compensation claimed under the head permanent disability and also that under the head loss of expectation of life/loss of amenities/loss of marriage prospects. The learned Senior Counsel would also point out that, the Tribunal ought to have awarded the entire compensation under the head future treatment, considering the fact that the claimant is even now continuing treatment and that, he has to undergo physiotherapy for the rest of his life. The learned Senior Counsel would also point out that by an order dated 11.2.2015 in I.A.No.510 of 2015 in M.A.C.A.No.1225 of 2014, this Court has permitted the claimant to amend the claim petition by amending the claim under the head expenses for continuing future treatment to ₹60,00,000/-; loss of amenities to ₹25,00,000/- and also a further claim of ₹25,00,000/- under the head compensation for shortening expectation of life.

12. Per contra, the landlord Senior Counsel for the appellant/insurer in M.A.C.A.No.2778 of 2014 would contend that, the compensation awarded by the Tribunal is highly excessive and it cannot be considered as just and reasonable compensation, as contemplated under Section 168 of the Act. The learned Senior Counsel would point out that, there is no medical evidence to prove that the claimant cannot pursue MBBS Course further because of the alleged disability and as such, before arriving at any finding on this aspect, the Tribunal ought to have insisted the claimant to examine one of the doctors who treated him, in order to ascertain as to whether there is any improvement in his condition after expert treatment in various hospitals. The learned Senior Counsel would contend that, the Tribunal has not properly appreciated the contentions raised by the insurer that, the claimant had gone to USA only because his sister is residing there. As such, the exorbitant treatment and travelling expenses awarded by the Tribunal is legally unsustainable. Further the Tribunal fixed the monthly income of the claimant at ₹5,000/- without any legal basis. Similarly ₹10,00,000/- awarded by the Tribunal under the head pain and suffering and ₹5,00,000/- under the head loss of amenities, even after awarding 8,10,000/- towards disability compensation, is highly excessive, so also ₹2,00,000/- awarded under the head future treatment expenses, that also with interest from the date of claim petition.

13. We have considered the rival submissions made at the Bar.

14. Before the Tribunal, the claimant himself was examined as PW1, who deposed that, at the time of accident he was a second year MBBS student at Vinayaka Missions’ Krupananda Variyar Medical College, Salem and that he has passed the first year MBBS examination. The said facts are borne out from Ext.A25 certificate, Ext.A26 fee receipt and Ext.A27 mark list of the first year MBBS course. PW1 deposed that, at the time of accident he along with his classmates were returning to the College after vacation. He has also deposed that he secured 71% marks for plus two and obtained admission for MBBS course by paying capitation fees. He deposed further that, it may not be possible for him to pursue his studies in view of the disability certified by the Medical Board in Ext.C1 certificate.

15. Immediately after the accident, the claimant was admitted in Kovai Medical Centre Hospital, Coimbatore. As per Ext.A6 wound certificate, he sustained fracture of frontal bone, communited fracture of C5 vertebra, compression of spinal cord and had undergone inpatient treatment in that hospital from 18.9.2008 till 16.12.2008. Ext.A7 summary bill is for a total sum of ₹4,90,142/- towards treatment expenses. Ext.A8 discharge summary shows the final diagnosis as C5 fracture with cord transection and fracture of frontal bone. Ext.A8 shows further that the claimant had undergone bone grafting and for spinal cord injury he underwent cervical C5 corpectomy, fusion and stabilisation and also surgical tracheostomy. On discharge from that hospital, he was advised to continue rehabilitation programme at Christian Medical College, Vellore, as desired by his relatives. Ext.A8 discharge summary also shows that his bladder was catheterised.

16. Ext.A10 discharge summary shows that the claimant had undergone rehabilitation of traumatic C4 incomplete tetraplegia at Christian Medical College, Vellore from 17.10.2008 till 5.4.2009. Ext.A10 also shows that, after occupational therapy, he was able to independently do computer typing without any aid and operate the mouse as well. His caretaker has been trained to do digital stimulation/evacuation of stool. In Ext.A10 discharge summary the claimant was advised to continue home programme and to attend review after 6 months. Ext.A9 inpatient bill is for a total sum of ₹4,69,089.09 towards treatment expenses. PW1 has deposed that, since he is unable to walk and feels weakness of four limbs, a wheel chair was purchased for 15,500/-, as evidenced by Ext.A11 invoice.

17. Before the Tribunal, the claimant contended that, after completing initial phase and management at the Department of Physical Medicine and Rehabilitation at the Christian Medical College, Vellore he was advised to seek expertise and help from advanced rehabilitation centers in USA. In support of the aforesaid contention, the claimant would rely on Ext.A12 letter issued by Dr.George Tharian of Christian Medical College, Vellore, addressed to the Visa Officer, Office of the Consular Affairs, Consulate General of United States of America, Chennai. In Ext.A12 it has been stated that, such visit at advanced centers would enable the claimant to pursue his medical studies on his return to India after completion of rehabilitation. It has been made clear in Ext.A12 that, the said letter has been issued to support the request made by the claimant for visa to USA.

18. PW1 deposed that, based on the recommendation made in Ext.A12 letter, he had gone to USA along with his mother for treatment, where he had to spent considerable amount towards treatment and other incidental expenses. Ext.A13 is stated to be the electronic ticket for their onward journey to USA and Ext.A15 is the air ticket for their return journey. Ext.A14 is a letter issued by Computer Credit Inc., a debt collection agency at Winston-Salem, licensed by the Department of Consumer Affairs, New York City, demanding from the claimant $1,615.00 payable to Good Samaritan Hospital and Medical Centre at New York. Ext.A16 is another letter issued from Kessler Foundation Research Centre, West Orange, New Jersey, which shows that the claimant participated in a spinal cord injury research at that research center from 10.8.2009 to 20.5.2010. Ext.A17 is a quotation from Hudson Home Health Care, Newington, for wheel chair with improved facilities, costing $3,830.57. Ext.A18 is the photocopy of a letter issued from Kessler Institute for Rehabilitation, addressed to the brother-in-law of the claimant, in which it has been stated that the estimated cost of the treatment comes to $20,000.

19. The claimant deposed that, even after his return from USA, he is undergoing continuous treatment with Dr.James P.S., Former Professor and Head of the Department of Orthopaedics, Medical College Hospital, Kottayam. In order to substantiate the said fact the claimant relied on Ext.A19 prescription, as per which he was under his treatment from 11.6.2010 to 17.4.2013. Ext.A20 series are the receipts for ₹45,500/- paid to Mr.Robin Joseph, Consultant Physiotherapist, Life Care Rehabilitation Centre, Palarivattom, for undergoing physiotherapy. Ext.A21 is a certificate issued by Dr.Sudhir Shareef, Junior Consultant in Orthopedics, General Hospital, Ernakulam, certifying that the claimant is on physiotherapy and conservative treatment from 9.6.2010 onwards. Ext.A23 series are taxi bills for a total sum of ₹7,391/-. Ext.A24 series are medical bills for a total sum of ₹1,22,963.79 towards treatment expenses. However Sl.No.12 in Ext.A24 series of bills is a receipt issued in the name of another person and there is some mistake in the calculation as well.

20. Ext.A25 is a certificate issued by the Dean of Vinayaka Missions’ Kirupananda Variyar Medical College, Salem, certifying that the claimant is on leave due to his health conditions and will resume his studies after completion of his treatment. Ext.A26 is the receipt regarding payment of 2,62,000/-towards second year MBBS tuition fee and special fee. Ext.A27 is the result of first year MBBS examination. Ext.A28 sales bordereaux shows conversion of ₹5,04,034/- into $10,000 by the claimant’s mother while proceeding to USA. As per Ext.A29 electronic reservation slip the claimant had spent ₹4,834/- towards train fare for four persons, out of which, ₹2,417/- is in respect of the claimant and his mother.

21. In Ext.A22 disability certificate issued by the District Medical Board, Ernakulam, the extent of permanent disability of the claimant has been certified as 80%. However, in Ext.C1 disability certificate issued by the Medical Board at the Medical College Hospital, Kottayam, as directed by the Tribunal, the extent of permanent disability has been certified as 75%. As per Ext.A30 copy of passport, the claimant has completed 19 years at the time of accident.

22. The appellant/claimant claimed a sum of ₹27,00,000/- under the head medical expenses, however the Tribunal awarded only a sum of 11,61,213/- under that head. The learned Senior Counsel for the claimant would contend that the compensation awarded by the Tribunal under the head medical expenses is on a lower side. Per contra, the learned Senior Counsel for the insurer would contend that, in the absence of any medical evidence to show that the advanced treatment stated to have undergone by the claimant at USA was essential and that, such facility was not available in India, the Tribunal committed a grave error in awarding exorbitant amounts under the head treatment and travelling expenses.

23. The treatment expenses to the tune of 4,90,142/- at Kovai Medical Centre Hospital, Coimbatore is supported by Ext.A7 summary bill. Similarly, the treatment expenses at Christian Medical College, Vellore to the tune of ₹4,69,089.09 is supported by Ext.A9 inpatient bill. Out of Ext.A24 series of bills for a total sum of 1,22,963.79, the Tribunal awarded ₹1,20,582.11. The total treatment/medical expenses covered by Exts.A7, A9 and A24 bills comes to ₹10,79,813.20. We find that the medical expenses to the extent of 10,79,813.20 awarded by the Tribunal warrants no interference, since the same is supported by treatment/mecial bills, especially when the insurer has no serious dispute in this regard.

24. Relying on Ext.A12 letter issued by Dr.George Tharian of Christian Medical College, Vellore, the claimant contended that he had undergone advanced rehabilitation treatment at USA. Exts.A13 and A15 are air tickets. Ext.A14 is a letter issued by a debt collection agency demanding $1,615.00 (equivalent to 81,396/-) payable to Good Samaritan Hospital and Medical Centre at New York. Ext.A18 is a letter from Kessler Foundation Research Centre, New Jersey in which the cost of treatment is estimated at $20,000. Ext.A17 is a quotation from Hudson Home Health Care, Newington for wheel chair with improved facilities costing $3,830.57. Ext.A28 sales bordereaux shows conversion of ₹5,04,434/- into $10,300/- by the claimant’s mother while proceeding to USA.

25. The Tribunal noticed that, Ext.A18 is only an estimate for treatment expenses and Ext.A17 is only a quotation for purchasing wheel chair and there is no evidence to show that the amount was actually paid by the claimant. Similarly, Ext.A28 shows only conversion of Indian Rupee to US Dollars and there is no evidence that the entire amount was spent for the treatment of the claimant. Though the treatment expenses at Good Samaritan Hospital is not supported by any bills, the Tribunal, relying on Ext.A14 letter issued by a debt collection agency approved by the Department of Consumer Affairs, New York City awarded ₹81,396/- (equivalent to $1,615.00) towards treatment expenses at that hospital. The Tribunal has also awarded ₹1,37,627/- covered by Ext.A13 air ticket for onward journey of the claimant and his mother to USA.

26. A reading of the award would show that, relying on the version of the claimant as PW1 and also Ext.A12 letter issued by Dr.George Tharian of Christian Medical College, Vellore, the Tribunal accepted the case of the claimant that he had gone to USA for undergoing advanced treatment in rehabilitation so as to enable him to pursue his studies.

27. In

# Muthaiah Sekhar v. Nesamony Transport Corporation Ltd. (1998 (7) SCC 39)

the Apex Court was dealing with a case in which the appellant, who was aged 25 years at the time of accident, who, after practicing as a lawyer for some time, applied for and secured a seat in the Madras University for pursuing his M.L. Course, sustained in all seven injuries including dislocation of right hip, head injury and injury to the left eye and ear. Initially, he was admitted to the Medical College Hospital, Trivandrum, for treatment and after discharge he was admitted again to the Madras General Hospital for further treatment. It was the specific case of the appellant that he was to be treated for the left carotid cavernous fistula; a condition which required the treatment of balloon embolisation, which was not available in India and his brother, who was a practising Doctor at New York asked him to go over there for treatment. Accordingly, he went to New York and had his treatment there. The Tribunal was of the view that the claim towards the travelling expenses to New York and medical expenses in the Hospital at New York, cannot be allowed as there was no record to show that the facilities were not available in India for such treatment. Challenging the award passed by the Tribunal, the appellant approached this Court in appeal, which ended in dismissal at the admission stage, which was subjected to challenge before the Apex Court.

28. The appellant therein, placing reliance on the disability certificate issued by the Head of the Neurosurgery Department and the letter written by a Doctor in New York to the U.S. Consulate at Madras to enable him to get necessary visa for his treatment at United States and the oral evidence given by the Doctor, who gave the disability certificate, contended that he has discharged the burden to prove his case that the treatment he had in New York was not available in India at that time and there is no iota of evidence on the side of the respondent to demolish his claim in this regard. Further, it was not for the respondent to suggest what type of treatment the injured has to undergo. It was contended further that, neither the Tribunal nor the High Court had any material to disbelieve the evidence produced by the appellant and in the absence of any positive evidence from the side of the respondent, the Division Bench should have allowed the compensation as claimed by him.

29. The Apex Court, after considering the oral evidence of the Doctor who issued the disability certificate and also the letter issued by the Assistant Professor, Clinical Neurosurgery, New York University School of Medicine, addressed to the U.S. Consulate, Madras, in which it has been stated in categorical terms that, cerebral angiogram clearly showed the presence of a carotico-cavernous fistula and the modern treatment for this condition is intra arterial balloon embolisation of the fistula, sparing the carotid artery, which procedure is not available in India. The said Doctor has also sated that, the only procedure that was available in Madras was a carotid ligation, which apart from not being curative, is dangerous and can cause disastrous complications such as stroke. Therefore, after reviewing all medical records and angiograms from Madras, the Assistant Professor, Clinical Neurosurgery, New York University School of Medicine recommended that the appellant therein should come to the United States to have the balloon embolisation, for which all the arrangements can be done at New York University Medical Center. In was in such circumstances, he requested the U.S. Consulate at Madras that, a visa be issued to the appellant therein as soon as possible before he develops an irreversible complication such as blindness, stroke, cerebral haemorrhage or even death. The Apex Court noticed that, this was not given the due importance both by the Tribunal and by the Division Bench of the High Court while rejecting the claim of the appellant therein for travelling to New York and expenses incurred for his treatment at New York.

30. The Apex Court noticed further that, no attempt was made by the respondent to produce evidence, oral or documentary, to the effect that such facility was available in India. The Apex Court held in categorical terms that, nothing prevented the injured person from taking the best available medical facilities to recover from the disabilities caused by the tort feasor. Paras.7 to 9 of the judgment read thus;

“7. After going through the Award of the Tribunal and the judgment of the High Court, we are of the view that the appellant was not given the just compensation on the facts of the case, to which he was entitled to. The Disability Certificate was not totally accepted by the High Court only on the ground that the Doctor, who gave the Certificate, has no authority to give such a Disability Certificate in respect of vision in the left eye and loss of hearing in the left ear. We have perused the evidence of the Doctor, who gave the Disability Certificate, and he has asserted in his evidence as follows :

“Before I issued this certificate Ext.A22 I saw the report of Neurologist of the M.C.H. The respective departments will send their reports. I referred to patient to ophthalmic hospital and ENT Specialist, M.C.H., Trivandrum. ENT must have seen it. Audiometry was done to him. I did not examine his vision. Ophthalmologist examined his vision. He had lot of problem. Mainly Diplopia. Regarding the nature of diplopea only the Ophthalmic Surgeon can explain. Audiometry was done and a report was given by ENT department. When I treat a patient, I alone will issue a disability certificate. Other departments will issue reports about the treatment made by them. I have not seen any disability certificate issued by the other departments. As head of the treating unit the Neurologist can issue disability certificate. There is in 60% loss of hearing in one ear. With respect to vision also I have seen the report. You are not competent to issue a disability certificate regarding eye and ear (Q) Not correct (Ans.) Orthopaedic Surgeons are competent to issue disability certificate in respect of every system of the body on the basis of the MC brid scale. His left hip is affected. He had a damage to optical nerve of the left side. I mean the 2nd cranial nerve. That was not mentioned in the certificate. When there is a total loss, each of the reasons need not be mentioned. I say you have not mentioned the reasons for assessing 50% disability (Q). I have stated in the certificate the reasons. I say without getting reports from the other departments you have issued the certificate (Q) No (Ans).”

8. On a fair reading of the evidence, we are of the view that the High Court was not justified in doubting the correctness of the Disability Certificate. Further, it is on record that the treatment by balloon embolisation of the fistula was not available in India. The Assistant Professor, Clinical Neurosurgery, New York University School of Medicine in his letter addressed to the U.S. Consulate, Madras, has stated thus :

“Mr. Muthiah Sekhar is a 27-year old Asian Indian male who was involved in a major automobile accident in India in August, 1984. His mother was killed in this accident and Mr. Muthiah Sekhar himself sustained multiple injuries. He presented to the Government General Hospital in Madras with head injury, decreased vision and bulging of left eye. Examination revealed markedly decreased visual acuity, pulsating proptosis and a bruit in the left eye. A cerebral angiogram clearly showed the presence of a carotico – cavernous fistula. The modern treatment for this condition is intra arterial balloon embolisation of the fistula, sparing the carotid artery. This procedure is not available in India. The only procedure they could offer him in Madras was a carotid ligation, which apart from not being curative, is dangerous and can cause disastrous complications such as stroke.

I have reviewed all his medical records and angiograms from Madras and I strongly feel that he should come to the United States to have the balloon embolisation. I can make all the arrangements for this procedure to be done at New York University Medical Centre. The patient’s brother, Dr. Muthiah Sukumaran, is a practicing Physician in New York and is willing to bear all expenses.

I would like to request that a visa be issued to him as soon as possible before the patient develops an irreversible complication such as blindness, stroke, cerebral haemorrhage or even death.”

9. This was not given the due importance both by the Tribunal and by the High Court in rejecting the claim of the appellant for travelling to New York and expenses incurred for his treatment at New York. As rightly pointed out by the learned Senior Counsel for the appellant, no attempt was made by the respondent Corporation to produce evidence oral or documentary to the effect that the facility was available in India. Even otherwise, the view taken by the High Court that the appellant never informed the respondent about his going to New York for treatment and he cannot burden the Corporation with the expenses for treatment in a foreign country, is not correct. Nothing prevented the injured person from taking the best available medical facilities to recover from the disabilities caused by the tort feasor. …..”

31. As held by the Apex Court in Muthaiah Sekhar’s case (supra), nothing prevents the injured in a motor accident from taking the best available medical facilities to recover from the disabilities caused by the tort feasor. However, the initial burden lies on the claimant to prove with cogent and convincing materials, supported by the oral evidence of the doctor concerned or any medical experts, that any such advanced treatment is essential to recover from the disabilities caused by the injuries sustained in the accident. If he had availed any advanced treatment abroad, he has to prove further that such advanced treatment was not available anywhere in India at that time. Once the claimant has discharged the initial burden, it is for the respondent to adduce evidence to the contra.

32. In the instant case, as we have already noticed, Ext.A12 is only a letter issued by Dr.George Tharian of Christian Medical College, Vellore to the Visa Officer at Chennai in order to support the request made by the claimant for visa to USA, in which it has been stated that the visit at advanced rehabilitation center at USA would enable the claimant to pursue his medical studies on his return to India after completion of rehabilitation. There is nothing in Ext.A12 to indicate that such facility was not available in India. Neither the doctor who issued Ext.A12 nor any other medical experts were examined before the Tribunal in order to prove and establish the essentiality of undergoing such a treatment at USA and also the non-availability of such treatment facility in India. In that view of the matter, we find it appropriate to direct the Tribunal to reconsider the claim made by the claimant towards medical expenses for advanced rehabilitation treatment at USA and also the claim for travelling expenses, after affording an opportunity to both sides to adduce additional evidence as to the essentiality of such treatment and also non-availability of such treatment facility in India. Based on the finding on that aspect, the Tribunal shall re-fix the compensation, if any, payable towards medical and travelling expenses, for the advanced rehabilitation treatment at USA (in addition to 10,79,813.00 already awarded for medical treatment at Coimbatore, Vellore and Ernakulam covered by Exts.A7, A9 and A24 bills) taking note of the observations contained hereinbefore and also the principle laid down in the verdict of the Apex Court referred to supra.

33. Towards physiotherapy expenses, the Tribunal awarded a sum of ₹45,000/- covered by Ext.A20 series of bills. The Tribunal has also awarded ₹15,500/- towards purchase of wheel chair. Towards attendant expenses, the Tribunal awarded a sum of ₹45,000/-. Considering the nature of injuries sustained and the treatment the claimant had undergone, we find that the compensation awarded by the Tribunal under the above heads represents just and reasonable compensation, which warrants no interference in this appeal, so also ₹500/- awarded towards damage to clothing. We also notice that, the insurer has no serious dispute regarding the compensation awarded by the Tribunal under the above heads.

34. Under the head permanent disability, the claimant claimed a sum of ₹15,00,000/-, however the Tribunal awarded only a sum of ₹8,10,000/-. As borne out from Ext.A25 certificate, the claimant was pursuing his second year MBBS course at the time of accident and Ext.A30 copy of passport would show that he was aged 19 years at that time. The Tribunal, considering the fact that the claimant is a second year MBBS student and that, but for the accident, he would have completed MBBS course during the year 2013, fixed a notional sum of ₹5,000/- per month as his income for the purpose of assessing disability compensation.

35. Relying on the judgment of the Apex Court in

# Ashibinbhai Jayantilal Modi v. Ramkaran Ramachandra Sharma (2015 (2) SCC 180)

the learned Senior Counsel for the claimant would contend that the Tribunal ought to have fixed at least ₹25,000/- as the future income of the claimant for the purpose of assessing disability compensation. Per contra, the learned Senior Counsel for the insurer would contend that the fixation so made by the Tribunal is on a higher side.

36. In

# Arvind Kumar Mishra v. New India Assurance Co.Ltd. (2010 (10) SCC 254)

the Apex Court was dealing with a case of a Final Year Engineering student at Birla Institute of Technology (BIT), Mesra, who sustained serious injuries in a motor accident occurred in the year 1993. The Tribunal awarded a total compensation of ₹2,50,000/-, which was enhanced by the High Court of Jharkhand to ₹3,50,000/-. Dissatisfied with the compensation, he approached the Apex Court. Considering the fact that, at the time of accident he was a final year Engineering (Mechanical) student in a reputed College and that, he was a remarkably brilliant student having passed all his Semester examinations in distinction and that, on completion of Bachelor of Engineering (Mechanical) from a prestigious institution like BIT he would have got a good job and that, he was in fact selected in the Campus Interview by TATA as well as Reliance Industries and offered a pay package of ₹3,50,000/- per annum and that, even if he had decided to join Government service and got selected, he would have been put in the pay scale of the Assistant Engineer and would have at least earned 16,000/- per annum, the Apex Court estimated, upon the facts that, the multiplicand should be 42,000/- per annum.

37. In

# Ashibinbhai Jayantilal Modi v. Ramkaran Ramachandra Sharma (2015 (2) SCC 180)

a decision relied on by the learned Senior Counsel for the claimant, the Apex Court was dealing with a case in which the deceased was aged 19 years and he was pursuing his medical studies with good marks at the time of accident. The Tribunal assessed the future income of the deceased at ₹18,000/- per month, which was affirmed by the High Court of Gujarat. Dissatisfied with that judgment, the matter was taken before the Apex Court. Considering the fact that, at the time of accident the deceased was pursuing his medical degree with good marks and that, the deceased was a diligent student of medicine, who could have pursued his MD after his graduation and reached greater heights, the Apex Court fixed his future income at ₹25,000/- per month. In the said judgment, the Apex Court has also relied on its earlier decision in Arvind Kumar Mishra’s case (supra).

38. In view of the principle laid down by the Apex Court in the decisions referred to supra, the academic brilliance of the injured/deceased who was undergoing a professional degree course at the time of accident, the reputation of that educational institution, the prospects of the injured/deceased securing admission for higher studies based on his academic brilliance, etc. are relevant considerations while fixing future income for the purpose of awarding disability or dependency compensation, as the case may be. Therefore, the income fixed by the Apex Court in Ashibinbhai Jayantilal Modi’s case (supra), considering the peculiar facts and circumstances of that case cannot be applied in every case, without considering the relevant criteria referred to above.

39. In the instant case, the accident occurred in the year 2008 and at the time of accident the claimant was an able bodied person aged 19 years, pursuing his second year MBBS course. The Tribunal fixed the future income of the claimant at 5,000/- for the purpose of awarding disability compensation. Considering the economic conditions prevailing at the time of accident, we find that the monthly income so fixed by the Tribunal is also to be reconsidered. In that view of the matter, we find it appropriate to direct the Tribunal to re-fix the disability compensation payable to the claimant after re-fixing his future income, taking note of the observations contained hereinbefore, and also the principle laid down in the verdicts of the Apex Court referred to supra.

40. The fact that the claimant sustained serious injuries in the accident is evident from Ext.A6 wound certificate and also from Ext.A8 discharge summary. As borne out from Ext.A8 discharge summary, he had undergone inpatient treatment from 18.9.2008 till 16.12.2008 at Kovai Medical Centre Hospital, Coimbatore,. This was followed by rehabilitation treatment at Christian Medical College, Vellore from 17.10.2008 till 5.4.2009, as borne out from Ext.A10 discharge summary. Relying on Exts.A14, A16 letters, the claimant would contend that he had undergone treatment at advanced centre in USA. Relying on Ext.A19 prescription the appellant/claimant would contend that, even after his return to India he is undergoing continuous treatment.

41. The materials on record therefore prima facie indicate that, in the accident the appellant sustained serious injuries and he had undergone in patient treatment for a considerably long period. Further, as borne out from Ext.C1 disability certificate, he is having a permanent disability of 75% as assessed by the Medical Board at the Medical College Hospital at Kottayam. Ext.A25 certificate issued by the Dean of Vinayaka Missions’ Kirupananda Variyar Medical College, Salem, would also show that the claimant is on leave due to his health conditions.

42. The Tribunal, based on a finding that the claimant is permanently disabled due to the accident and that, the cost of treatment is likely to be very high in future and that, he needs assistance of a caretaker always to attend his day-to-day life and that, it is highly difficult to get a marriage alliance, and that, his life is with miseries due to weakness of four limbs and that, he discontinued his MBBS course due to the injuries, awarded a sum of ₹10,00,000/- towards compensation for pain and suffering, ₹1,00,000/- towards extra nourishment, ₹2,00,000/- towards compensation for future treatment, ₹5,00,000/- towards compensation for loss expectation of life/amenities and enjoyment in life and marriage prospects.

43. During the pendency of this appeal, by order dated 11.2.2015 in I.A.No.501 of 2015 in M.A.C.A.No.1225 of 2014 the claimant was permitted to amend O.P.(MV)No.138 of 2011, by amending the claim under the head expenses for continuing and future treatment from ₹15,00,000/- to ₹60,00,000/-; compensation for loss and amenities from ₹10,00,000/- to 25,00,000/-; and also a further claim of ₹25,00,000/- under the head compensation for shortening expectation of life.

44. As discernible from the award, the Tribunal has not dealt with independently the individual claims made by the claimant under the heads pain and suffering, extra nourishment, loss expectation of life, loss of amenities and enjoyment in life, loss of marriage prospects, etc. Instead, the Tribunal concluded that, considering the evidence and documents on record the compensation as shown in the table can be awarded to the claimant.

45. In

# State of Haryana v. Jasbir Kaur (2003 (7) SCC 484)

the Apex Court held that the Tribunal under Section 168 of the Act is required to make an award determining the amount of compensation which is to be in the real sense ‘damages’ which in turn appears to it to be ‘just and reasonable’. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be ‘just’ and it cannot be a bonanza; not a source of profit; but the same should not be a pittance.

46. In Jasbir Kaur’s case (supra), after referring to the judgment in

# Helen C. Rebello v. Maharashtra State Road Transport Corporation (1999 (1) SCC 90)

the Apex Court held further that, the Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be ‘just’ compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of ‘just’ compensation which is the pivotal consideration. Though by use of the expression ‘which appears to it to be just’ a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression ‘just’ denotes equitability, fairness and reasonableness, and non- arbitrary. If it is not so it cannot be just.

47. In

# Kiran v. Sajjan Singh (2015 (1) SCC) 539)

the Apex Court held that, the award towards non-pecuniary heads must be ascertained after careful reflection upon the facts and circumstances of the case on hand. The Apex Court held further that, compensation awarded should be reasonably sufficient to equip the victims to return to their normal life to the maximum possible extent.

48. We also notice that, in

# Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka (2009 (6) SCC 1)

the Apex Court emphasised that, a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.

49. A victim in a motor accident, who sustained injuries resulting disabilities has to be adequately compensated for the incidental expenses, including expenses towards future treatment, so as to enable him to recover from the disabilities caused by the tort feasor. However, while awarding just and reasonable compensation under the head future treatment expenses, considering the peculiar nature of the injuries sustained and the attendant circumstances, the Tribunal shall award interest for the said amount only from the date of award and not from the date of claim petition.

50. Similarly, a victim in a motor accident who sustained serious injuries resulting in permanent disability has to be adequately compensated by awarding just and reasonable compensation under the heads extra nourishment, loss of amenities, loss of marriage prospects (if unmarried), loss of studies, etc. While awarding compensation under these heads, in excess of the conventional amounts, the Tribunal has to state valid reasons in order to show that such award of compensation is after careful examination of the facts and circumstances of the case and that it represents just and reasonable compensation. In that view of the matter, we find it appropriate to direct the Tribunal to re-fix the compensation awarded under the above heads, after taking note of the observations contained hereinbefore, and also the principle laid down in the verdict of the Apex Court referred to supra.

51. In the result, both the appeals are disposed of setting aside the award passed by the Tribunal to the extent of fixing compensation under the heads referred to hereinbefore in Paras.32,39 and 50 and the matter is remanded to the Tribunal for refixation of the compensation, after taking note of the observations contained hereinbefore and also the principles laid down in the verdicts of the Apex Court referred to supra. Tribunal shall undertake such exercise, after affording an opportunity to both sides to adduce additional evidence.

52. By order dated 26.11.2014 in I.A.No.3220 of 2014 in M.A.C.A.No.2778 of 2014, the insurer was directed to deposit an amount of ₹30,00,000/- before the Tribunal and on such deposit, the claimant was permitted to withdraw that amount. It is made clear that the disbursement of ₹30,00,000/- as above will be subject to the award to be passed by the Tribunal on remand, pursuant to this judgment.

53. The Tribunal shall finally dispose of the matter, as expeditiously as possible, at any rate within a period of 4 months from the date of appearance of the parties. The parties shall appear before the Tribunal on 20.6.2016.

The Registry is directed to return the lower court records forthwith.

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