V. GOPALA GOWDA, J.

Delay condoned. Leave granted.

2. This appeal is filed by the appellant being aggrieved by the impugned judgment and award dated Signature Not Verified Digitally signed by Vinod Kumar Date: 2015.07.29 11:30:00 IST 4.3.2013 passed by the High Court of Kerala at Reason: Ernakulam in Motor Accident Claims Appeal No. 1716 of 2 2008, whereby the High Court, while disposing of the appeal of the appellant, declined to increase the compensation under any other heads, holding that the appellant is entitled to an additional compensation of Rs.2,03,200/- over and above the compensation awarded by the Motor Accident Claim Tribunal (for short “the Tribunal”) with 9% interest per annum from the date of the claim petition till date of payment with direction to Insurance Company to deposit the amount within two months.

3. Originally, there were three respondents, respondent No.1 is the owner of the offending vehicle, respondent No.2 is the driver and respondent No.3 is the Insurance Company, the insurer of the vehicle. Though, the name of respondent No.2-the driver has been deleted from the array of the parties vide Court’s order dated 29.4.2015, for the sake of brevity and convenience the parties are referred to as per the rank assigned to them in the original proceedings before the Tribunal.

4. The relevant facts are stated hereunder to appreciate the case of the appellant with a view to ascertain whether the appellant is entitled for the enhancement of compensation as prayed in this appeal.

On 14.08.2000, the appellant while driving a car on Valanchery Kottakkal Road, Malappuram District, Kerala was hit by a bus regd. No.KL13/A 6647, which was being rashly and negligently driven by the original respondent No.2 resulting in serious injuries to the appellant. Due to this collision, the appellant was seriously injured and was immediately taken to the nearest hospital at Kottakkal namely, Prasanthi Hospital wherein he was treated as an inpatient. The appellant suffered multiple grievous body and head injuries and was hospitalized for 54 days in West Fort Hospital, Thrissur. The appellant also underwent treatment from Mother Hospital on account of his blurred vision.

5. The appellant approached the Tribunal under 4 Section 166 of the Motor Vehicles Act, 1988 by filing O.P. (MV) No. 1220 of 2002 claiming compensation of Rs.10,31,000/- under various heads for the grievous injuries he suffered in the road accident caused by the rash and negligent driving of the offending bus by respondent No.2. Before the Tribunal, the doctor was examined who deposed that the appellant suffered 60% body disability. Before the Tribunal respondent Nos. 1 and 2 were ex-parte. Respondent No. 3 (the Insurance Company) filed the written statement before the Tribunal admitting that the bus involved in the accident was insured with them. However, respondent No.3 claimed that they are not liable to pay compensation to the appellant since he was under the influence of alcohol and was negligent while driving the car which caused the accident and therefore, the accident was not due to negligence of 2nd respondent as claimed by the appellant. They further contended that the age of the appellant, injuries sustained, treatment undergone and the expenses incurred for treatment are wrongly stated in the petition. The 5 Tribunal observed that the appellant had suffered severe head injury with fracture of the right orbital wall, fracture transverse process C1 and Ts, fracture of the ribs on the right side, loss of two teeth, partial loss of vision with diplopia, torticollis neck, loss of hearing and incontinence of urine and motion right sided hemiplegia multiple bodily injuries. The Tribunal on appreciation of pleadings and legal evidence on record partly allowed the petition and came to the conclusion that the accident occurred due to the negligence of the driver of the offending vehicle. Assessing the salary of the driver as Rs.2,000/- per month, the Tribunal determined the quantum of compensation at Rs. 3,70,000/- with an interest at the rate of 7% p.a. w.e.f. 6.6.2002 as against his total claim of Rs. 10,31,000/-.

6. After examining material evidence on record and examining the witnesses, the Tribunal came to the conclusion that the assessment of disability at 60% cannot be found fault with and held that at the time 6 of the accident the age of the appellant was 30 years, therefore the multiplier of 17 is to be applied to calculate the compensation for permanent disability. On that basis, the appellant was given compensation of Rs.2,44,800/- =(24000 x 60% x 17) under the head of compensation for permanent disability. The Tribunal rejected other claims for want of proper evidence and assessed the compensation under the following heads :-

PERMANENT DISABILITY TOTAL 3,70,700/-

The Insurance Company-respondent No. 3 was directed to deposit the amount of Rs.3,70,700/- with 7% interest per annum from 6.6.2002 till the date of actual 7 payment with proportionate costs within 30 days of the award.

7. Being dissatisfied with the amount of compensation awarded by the Tribunal, the appellant approached the High Court by filing MACA No. 1716 of 2008 contending that his monthly income was fixed only at Rs.2000/- even though he was a driver by profession. It was further contended by the appellant that the medical expenses granted were too low and that no future medical expenses were granted and prayed for enhancement of compensation.

8. The High Court on 4.3.2013 while disposing of the appeal came to the conclusion that the appellant has suffered total permanent disablement to the extent of 100% in respect of his earning capacity. However, the notional income of Rs.2000/- of the appellant fixed by Tribunal was not interfered with by the High Court and found the same to be correct. The High Court taking the appellant’s disability as 100% applied the multiplier of 17 and assessed the compensation at 8 Rs.4,08,000/- for loss of earning capacity (Rs.2000 x 12 x 17), instead of Rs.2,44,800/- as assessed by the Tribunal. The High Court assessed the compensation for the appellant at Rs.30,000/- for loss of amenities and enjoyment and Rs. 20,000/- for future medical expenses and did not increase the compensation under any of the other heads. The High Court further held that the appellant would be entitled to Rs.2,03,200/- as additional compensation over and above what was awarded by the Tribunal and the same would carry interest at the rate of 9% per annum from the date of the claim petition till the date of payment. Respondent No. 3-the Insurance Company was directed to deposit the amount within two months.

9. Aggrieved by the impugned Judgment and Order of the High Court of Kerala, the appellant has filed this appeal, urging various tenable grounds.

10. Mr. Jayanth Muthuraj, the learned counsel appearing on behalf of the appellant contended that the High Court should have taken into consideration 9 all the relevant factors of the case while fixing the compensation for pain and suffering, permanent disability and loss of amenities, loss of extra nourishment, transportation and the medical expenses.

11. He further contended that the High Court has erred in awarding a meager amount of Rs.30,000/- for future medical expenses to the appellant once it has considered him to be 100% disabled who will be in need of medicines and treatment for his entire life due to the accident caused by the rash and negligent driving of respondent No.2. He contended that the appellant should have been awarded much more for future medical expenses and urged for further enhancement.

12. It is further contended that the High Court erred in taking the monthly notional income of appellant as Rs.2,000/- as he was working as professional driver.

13. On the other side, learned Counsel on behalf of the respondent-Insurance Company sought to justify the 10 impugned judgment and order of the High Court as just and reasonable.

14. After hearing both the learned counsel for the parties and perusal of material evidence on record, we are of the view that the Tribunal was not right at assessing the notional income of the appellant at Rs.2000/-, which was wrongly accepted by the High Court. The High Court has erred in not interfering with the same and should have assessed the notional income of the appellant after taking into consideration the relevant Minimum Wages Notification dated 11th January 2000 published in Kerala Gazette Extraordinary issued by the Labour & Rehabilitation (E) Department, Government of Kerala and the undisputed fact that the appellant was working as a professional driver and that he has suffered 100% permanent disability with regard to his earning capacity. Therefore, we are of the view that the notional income of the appellant must be taken at Rs.3,500/- per month. After considering 50% 11 enhancement for future prospects, the compensation for permanent disability can be calculated at (Rs.3,500/- + Rs.1750/-) x 12 x 17 = Rs.10,71,000/- by applying the appropriate multiplier as per the principles laid down by this Court in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr.1 .

15. Further, towards the loss of earning of the appellant, we award Rs.73,500/- (Rs. 3,500/- X 21 months) since the appellant was unable to work for 21 months from the date of the accident till the filing of the claim petition.

16. Further, the award towards non-pecuniary heads must be ascertained after careful reflection upon the facts and circumstances of the case on hand as opined by this Court in this aspect in R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. & Ors.2 The aforesaid principle laid down in R.D. Hattangadi (supra) has been followed by this Court in the catena of cases 1 (2009)6 SCC 121 2 (1995) 1 SCC 551 12 including Rekha Jain v. National Insurance Co. Ltd.3 In the said case, this Court has referred to the criteria and guidelines which are required to be followed in awarding the compensation and assessing non-pecuniary damages in favour of the injured claimant at paragraphs 31, 32, 33 and 34, by extracting the relevant portions from various Appeal Cases namely, Admiralty Commissioners v. S.S. Valeria4, Livingstone v. Rawyards Coal Co.5, H. West and Son Ltd. v. Shephard6 and Ward v. James7 which have been referred to in the aforesaid case. Therefore, we award Rs.1,50,000/- for the pain and suffering and Rs.1,50,000/- for the loss of amenities and enjoyment of life caused to the appellant due to the accident caused by the rash and negligent driving of respondent No.2.

17. Further, keeping in mind that the appellant is in vegetative state of condition and will continue to be 3 (2013) 8 SCC 389 4 (1922) 2 AC 242 5 (1880) 5 App. Cas 25 (HL) 6 (1964) AC 326.

7 (1966) 1 QB 273 13 so in the future, we are of the view to award a sum of Rs.100,000/- towards future medical expenses, Rs. 10,000/- for expenses on extra nourishment and Rs. 10,000/- for transportation, which would be just and proper.

18. Therefore, the compensation under different following heads would be payable to the appellant for the loss suffered by him due to the accident caused by the rash and negligent driving of respondent No.2 :

The appeal is allowed in the terms as indicated above. No costs.

……………………………………………………………………J. [V. GOPALA GOWDA] ……………………………………………………………………J. [S.A. BOBDE] New Delhi, July 28, 2015 15 ITEM NO.1A-For Judgment IN COURT NO.4 SECTION XIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s)......../2015 @ SLP(C) No.853/2014 RAJAN Appellant(s) VERSUS SOLY SEBASTIAN & ANR. Respondent(s) Date : 28/07/2015 This petition was called on for pronouncement of JUDGMENT today.

For Appellant(s) Mr. Jayant Muthraj, Adv.

Mr. Sajith. P,Adv.

Mr. Kumar Gaurav, Adv.

Ms. Nazia Hasan, Adv.

For Respondent(s) Mr. Binay Kumar Das,Adv.

Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice S.A. Bobde.

Delay condoned.

Leave granted.

The respondent-Insurance Company is directed to pay Rs.15,97,400/- either by way of demand draft/drafts in favour of the appellant or deposit the same with interest at the rate of 9% p.a. as awarded before the Motor Accidents Claims Tribunal after deducting the amount already paid, if any, to the appellant within six weeks from the date of receipt of the 16 copy of this judgment.

The appeal is allowed in terms of the signed Non-Reportable Judgment.

(Signed Non-Reportable judgment is placed on the file)