MACA NOS.223 OF 2021 &

483 OF 2021

1 2024:KER:81459

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE EASWARAN S.

MONDAY, THE 18th DAY OF NOVEMBER 2024/ 27TH DAY OF KARTHIKA,

1946

MACA NO. 223 OF 2021

AGAINST THE AWARD DATED 07.07.2020 IN O.P.(M.V.) NO.588 OF

2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA

APPELLANT/PETITIONER :

MASTER JYOTHIS RAJ KRISHNA @ JYOTHI KRISHNA

AGED 8 YEARS

S/O. RAJESH KUMAR, (MINOR), KARICKAL HOUSE, IRAPURAM

KARA, IRAPURAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM

DISTRICT, REPRESENTED BY HIS NEXT FRIEND AND FATHER

SRI. RAJESH KUMAR, S/O. KRISHNANKUTTY, AGED 44 YEARS,

KARICKAL HOUSE, IRAPURAM KARA, IRAPURAM VILLAGE,

KUNNATHUNADU TALUK, ERNAKULAM DISTRICT

BY ADVS.

ENOCH DAVID SIMON JOEL

SRI.S.SREEDEV

SRI.RONY JOSE

RESPONDENTS/RESPONDENTS:

1 SUNNY GEORGE

AGED 47 YEARS

S/O.GEORGE, EDATHEL HOUSE, MANJAMMAKKITHADAM BHAGAM,

PANDAPPILLY, ARAKKUZHA VILLAGE, MUVATTUPUZHA TALUK,

FROM EDAPPAZHATHIL HOUSE, PUNNEKKADU, KEERAMPARA

VILLAGE, ERNAKULAM DISTRICT, PIN-686661 (R.C.OWNER OF

BUS BEARING NO.KL-57-E-8659).

2 HDFC ERGO GENERAL INSURANCE CO. LTD.,

1ST FLOOR, 165-166, BACKBAY RECLAMATION, H.T.PAREKH

MACA NOS.223 OF 2021 &

483 OF 2021

2 2024:KER:81459

MARG, CHURCHGATE MUMBAI,

MAHARASHTRA, PIN-400020.

SRI.GEORGE A CHERIAN, SC

SMT. LATHA SUSAN CHERIAN

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY

HEARD ON 28.10.2024, ALONG WITH MACA NO.483/2021, THE COURT ON

18-11-2024 DELIVERED THE FOLLOWING:

MACA NOS.223 OF 2021 &

483 OF 2021

3 2024:KER:81459

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE EASWARAN S.

MONDAY, THE 18th DAY OF NOVEMBER 2024/ 27TH DAY OF KARTHIKA,

1946

MACA NO. 483 OF 2021

AGAINST THE AWARD DATED IN O.P.(M.V.) NO.588 OF 2017 OF

MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA

APPELLANT/PETITIONER :

HDFC ERGO GENERAL INSURANCE COMPANY LIMITED

1ST FLOOR, 165-166, BACKBAY RECLAMATION,

H. T. PAREKH MARG, CHURCHGATE, MUMBAI,

MAHARASHTRA, PIN - 400 020, NOW REPRESENTED BY ITS

MANAGER (LEGAL), REGIONAL OFFICE, RAJAJI ROAD,

ERNAKULAM, KOCHI - 11.

BY ADVS.

GEORGE CHERIAN (SR.)

SMT.K.S.SANTHI

SRI.ALEXY AUGUSTINE

SMT.LATHA SUSAN CHERIAN

RESPONDENT/PETITIONER :

JYOTHIS RAJ KRISHNA @ JYOTHI KRISHNA

AGED 8 YEARS

S/O. RAJESH KUMAR, MINOR, KARICKAL HOUSE,

IRAPURAM KARA, IRAPURAM VILLAGE,

KUNNATHUNADU TALUK, ERNAKULAM DISTRICT,

REPRESENTED BY HIS NEXT FRIEND AND FATHER RAJESH

KUMAR, S/O. KRISHNANKUTTY, AGED 47 YEARS,

MACA NOS.223 OF 2021 &

483 OF 2021

4 2024:KER:81459

KARICKAL HOUSE, IRAPURAM KARA,

IRAPURAM VILLAGE P. O., KUNNATHUNADU TALUK,

ERNAKULAM DISTRICT,

PIN - 683541.

BY SRI.S SREEDEV

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY

HEARD ON 28.10.2024, ALONG WITH MACA NO.223/2021, THE COURT ON

18-11-2024 DELIVERED THE FOLLOWING:

MACA NOS.223 OF 2021 &

483 OF 2021

5 2024:KER:81459

“C.R”

EASWARAN S., J

..................................................

MACA Nos.223/2021 & 483/2021

…………............................................

Dated this the 18th day of November , 2024

JUDGMENT

The vexed question has come up again before this Court. What

should be the notional income of a minor, aged 5 years, in a Motor

Accident Claim? The accident took place in the year 2016 and for 8 years,

the child has been in a paraparesis state. No amount of compensation can

give back the child his childhood. Still the insurance company contends

that the compensation awarded is highly disproportionate to the claim.

On behalf of the minor, the father is aggrieved by the insufficiency of the

compensation awarded.

2. The object of an award of damages is to give the plaintiff

compensation for the damage, loss or injury. The statement of general rule

from which one must always start in resolving a problem as to the measure

of damages. A rule equally applicable to tort and contract has its origin in

MACA NOS.223 OF 2021 &

483 OF 2021

6 2024:KER:81459

the speech of Lord Blackburn in Livingstone Vs Rawyards Coal Co

(1880)5 App Cases 25. He there defined the measure of damages as

“that sum of money which will put the party who has been

injured or who has suffered, in the same position as he would

have been in if he had not sustained the wrong for which he is

now getting compensation or reparation ” This statement has been

consistently referred to or cited as approval or restated in similar

language. Keeping in mind the above principles, this Court proceeds

towards consideration of the issues raised in the appeal.

3. The succinctly stated facts for disposal of the appeal is as

follows:

Jyothis Raj Krishna, a 5 year old boy studying in U. K .G who had

just started his bubbling life was walking with his family members on

03.12.2016 along the northern side road margin of Muvattupuzha –

Ernakulam NH from east to west, met with a devastating accident which

was about to change the rest of his life. The offending vehicle, a car bearing

Registration No.KL-44-A-3243 driven by the 1

st

respondent in a rash and

negligent manner came and hit the appellant. Though, immediately after

the accident, the boy was taken to the Medical College Hospital,

MACA NOS.223 OF 2021 &

483 OF 2021

7 2024:KER:81459

Kolenchery and then referred to Amritha Hospital, he could not get up

thereafter. As a result of the accident, he is still lying in a vegetative state.

Claiming compensation under various heads, the claimant/appellant,

through his father, approached the Motor Accidents Claims Tribunal,

Muvattupuzha in O.P.(MV) No.588 of 2017.

4. On behalf of the claimant/appellant Exts.A1 to A9 were produced.

The respondents did not produce any evidence. However, the insurance

company disputed the claim on various grounds. The claimant was

referred to the Medical College Hospital, Kottayam in order to assess the

disability. Ext.C1 dated 13.11.2019 is the disability certificate issued from

the Government Medical College Hospital, Kottayam. The Medical Board

assessed the disability at 77%. Based on the disability, the tribunal

proceeded to consider the claim and fixed the notional income of the

minor at ₹8,000/- per month and awarded the following compensation:

Sl.

No.

Head of claim Amount Claimed

(in Rupees)

Amount

Awarded (in

Rupees)

Notes

1 Transport to

hospital

10,000 10,000 reasonable

2 Damage to clothing 5,00 2,000 reasonable

3 Extra nourishment 50,000 50,000 reasonable

MACA NOS.223 OF 2021 &

483 OF 2021

8 2024:KER:81459

4 Treatment charges 1,00,000 1,03,423 Actual

5 Hospital attendance 20,000 20,000 Reasonable

6 Future treatment

charges and

Bystander expenses

10,00,000 10,00,000 reasonable

7 Pain and suffering 5,00,000 3,00,000 Reasonable

8 Continuing and

permanent disability

40,00,000 11,08,800 reasonable

9 Loss of earning

power

40,00,000 10,00,000 reasonable

10 Loss of

conveniences and

amenities in life

5,00,000 4,00,000 reasonable

11 Compensation

towards sufferings

of the family

0 5,00,000 reasonable

Total claim in

limited to

1,0185,000

50,00,000

44,94,223 Just

compensation

5. The claimant/appellant has come up with this appeal questioning

the grant of compensation under various heads.

6. On the other hand , the Insurance Company has approached this

Court contending that the notional income fixed by the tribunal is high.

The tribunal could not have granted interest on the compensation for

future medical treatment. It is further contended that, after allowing the

compensation towards loss of earning power, the tribunal has allowed the

compensation for disability also, which is impermissible under law. Even

the compensation awarded under the head “disability” is on the higher

MACA NOS.223 OF 2021 &

483 OF 2021

9 2024:KER:81459

side.

7. Since the claimant has come up in appeal seeking enhancement,

and the said appeal having been preferred at the earlier point of time, this

Court will consider the contention raised by the claimant/appellant in

order to ascertain as to whether the claimant/appellant is entitled for

enhancement. If the findings of this Court is that the claimant/appellant is

entitled for enhancement, then automatically the appeal preferred by the

insurance company fails. In this backdrop, the respective contentions

raised by the parties will be dealt with in detail.

8. Heard Sri.S.Sreedev, the learned counsel appearing for the

claimant/appellant in MACA No.223 of 2021 and the learned Senior

counsel Sri.George Cherian, assisted by Smt.Latha Susan Cherian the

learned Standing Counsel appearing on behalf of the insurance company,

the appellant in MACA No.483 of 2021.

9. Sri.S.Sreedev, the learned counsel appearing for the

claimant/appellant raised the following submissions :

(1) The notional income fixed by the tribunal at

₹8,000/- cannot be sustained. In support of this

contention, the learned counsel relied on the judgment

MACA NOS.223 OF 2021 &

483 OF 2021

10 2024:KER:81459

of the Supreme Court in Master Ayush v. The

Branch Manager, Reliance General Insurance

Co. Ltd and Others [2022 (7) SCC 738].

(2) The bystander expenses and the attendant charges

granted by the tribunal are inadequate. The attendant

charge has to be fixed in terms of the judgment of the

Hon’ble Supreme Court in Kajal v. Jagdish Chand

and Others [2020(4) SCC 413].

(3) Since the Medical Board assessed 77% disability,

considering the fact that the claimant is still in a

vegetative state, the functional disability of the claimant

ought to have been fixed at 100%.

(4) While calculating the attendant charges in terms of

the principles laid down by the Hon’ble Supreme Court

in Kajal (supra), the same has to be reckoned by

taking into consideration the minimum wages as per

the notification issued by the State of Kerala under the

provisions of the Minimum Wages Act, 1948.

(5) The compensation granted under the head Pain and

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483 OF 2021

11 2024:KER:81459

Suffering is insufficient.

(6) The tribunal erred in not granting any

compensation towards the future prospects.

(7) In view of the peculiar medical condition of the

claimant/appellant, he is also entitled for allowances

towards special diet.

(8) The tribunal ought to have applied the multiplier of

18 instead of 15.

(9) It is contended that the interest awarded by the

tribunal is not sufficient.

10. In opposition to the aforesaid arguments, Sri.George Cherian,

the Learned Senior counsel appearing for the insurance company, raised

the following submissions :

(1) The tribunal could not have granted the

compensation under the head loss of earning as well as

towards permanent disability together. In support of

his contention, the learned Senior counsel relied on the

judgment of the Full Bench of this Court in Oriental

MACA NOS.223 OF 2021 &

483 OF 2021

12 2024:KER:81459

Insurance Company Limited v. V.Hariprasad

and Others [2005 (4) KLT 977].

(2) The claim of fixing attendant charges in terms of the

principles laid down by the Hon’ble Supreme Court in

Kajal (supra), though can be followed by this Court,

however, the amount to be fixed as attendant charges

cannot relate to the wages fixed for a skilled labourer

under the Provisions of the Minimum Wages Act, 1948.

(3) The learned Senior counsel would also place

reliance on the judgment of the Honourable Supreme

Court in Divya v. National Insurance Company

Limited & Another [2022 (6) KLT SN 23] ,

wherein it was held that in cases where the age of the

victim happens up to 15 years, the multiplier of ‘15’ has

to be adopted.

(4) While calculating the attendant charges, according

to the learned Senior counsel, the principles laid down

by the Supreme Court in Chaus Taushif Alimiya v.

Memon Mahmmad Umar Anwarbhai [AIR

MACA NOS.223 OF 2021 &

483 OF 2021

13 2024:KER:81459

2023 SC 1110] have to be followed.

(5) The learned Senior counsel placed reliance on the

judgment of the learned Single Bench of this Court in

United India Insurance Company Limited v.

Dilna Dineshan [2022(2) KHC 396] , wherein the

learned Single Judge of this Court had granted a

consolidated amount as enhanced compensation.

11. Having considered the rival submissions raised across the Bar,

this Court is called upon to decide on multiple issues. Therefore, it will be

appropriate for this Court to frame the following questions which the

court is required to adjudicate.

(a) Whether the notional income fixed by the tribunal

at ₹8,000/-is correct.

(b) What should be the attendant charges to be granted

to the claimant/appellant?

(c) Whether the claimant/appellant is entitled for

future prospects.

(d) Whether the tribunal could have granted the

compensation under the head loss of earnings and

disability.

(e) Whether interest could be granted towards the

future treatment.

MACA NOS.223 OF 2021 &

483 OF 2021

14 2024:KER:81459

(f) Whether the claimant/appellant is entitled to any

enhancement under the non-conventional heads.

12. The most disputed and still unsettled question is what should be

the notional income of a minor aged 5 years. Before answering this

question, this Court is reminded of the difficulty it faces. There is no direct

precedent on this point. Court cannot look deep into the Statute for aid

since the Statute is also silent. The solitary guide before this Court is the

salutary principle enshrined under Section 166 of the Motor Vehicles Act

1988 wherein the courts and tribunals are bound to grant a just and fair

compensation. However, in order to arrive at a just and fair compensation,

certainly there should be a notional income. Although there are multiple

precedents on the approximate compensation or abstract notional income

that can be fixed in respect of a minor child between the ages of 5 to 15

years in a case of a death, unfortunately the same is of no avail while

deciding the issue at hand. No amount of compensation can bring back the

lost childhood of the claimant. However, the grant of just and fair

compensation can bring immense solace to the family of the claimant.

With these compelling facts, this Court now proceeds to answer the

questions posed before it.

MACA NOS.223 OF 2021 &

483 OF 2021

15 2024:KER:81459

13. Notional Income- As stated above, the most debated issue

under the Motor Vehicles Act, 1988 yet remains unsettled is the notional

income of a minor child. There is a school of thought that notional income

can be fixed referring to the principles laid down by the Hon’ble Supreme

Court in Ramachandrappa Vs. Manager, Royal Sundaram

Alliance Insurance Company [AIR 2011 SC 2951]. But this Court is

called upon to decide a peculiar issue which would bring consistency in

the matter of awarding compensation by various tribunals.

13.1 The component of notional income becomes predominant since it

forms a crucial part in awarding just and fair compensation. Probably this

exercise by the Court may perhaps obliterate the disparity in the matter of

awarding compensation which is in existence now. In this case, the

tribunal fixed the notional income at Rs.8,000/-. However, no reasons

whatsoever have been assigned by the Tribunal in fixing the notional

income at Rs.8,000/-. Thus, it is clear that the tribunal did some

guesswork while deciding the notional income of the claimant. According

to the learned counsel for the claimant, Sri.S.Sreedev, the tribunal ought to

have fixed the notional income by following the decision of the Hon’ble

Supreme Court in Master Ayush v. The Branch Manager, Reliance

MACA NOS.223 OF 2021 &

483 OF 2021

16 2024:KER:81459

General Insurance Co. Ltd and Others [2022 (7) SCC 738 ]. A

detailed discussion on the decision rendered by the Hon’ble Supreme

Court is required in order to arrive at the justiciable conclusion as regards

to the 1

st

question posed.

14. In Master Ayush (supra) the Hon’ble Supreme Court dealt

with a claim preferred by a 5 year old victim of a road accident which

occurred on 21.09.2010. The tribunal awarded a total compensation of

₹18,24,000/- to Master Ayush. However, on appeal by the insurance

company, the High Court, by judgment dated 07.09.2020, reduced the

claim to ₹13,46,805/-. The certificate of disability in respect of Master

Ayush revealed that he was 100% disabled. While considering the

question “what should be the notional income of a minor child having

100% disability?’, the Hon’ble Supreme Court relied on the scheduled

minimum wages issued by the State of Karnataka for employments not

covered under any of the scheduled employments as per notification dated

19.02.2007. The notional income was fixed by taking the minimum wage

of a skilled employee and adding 40% future prospects in terms of the

judgment of the Supreme Court in National Insurance Company

Ltd. v. Pranay Sethi [2017 (16) SCC 680]. Thus, an amount of

MACA NOS.223 OF 2021 &

483 OF 2021

17 2024:KER:81459

₹5,180/- per month was fixed as the notional income. By adding the

multiplier as ‘18’, the compensation towards future earnings was worked

out. Naturally, a doubt will arise whether it is permissible to deviate from

the principles carved out in Ramachandrappa (supra). A profound reading

of the above decision rendered by the Hon’ble Supreme Court in Master

Ayush (supra) shows that time has come where the courts are required to

undertake a progressive thinking in the matter of fixation of notional

income of a minor child and not to confine itself with a restrictive mind.

15. Applying the principles laid down by the Supreme Court, this

Court now proceeds to assess the notional income. As far as the State of

Kerala is concerned, the Government has brought the minimum rates at

which the wages are to be paid. In G.O.(P).No.56/2017/Fin dated

28.04.2017, the Government of Kerala had revised the minimum wages

for skilled workers w.e.f 01.04.2016 and the same is fixed at ₹17,325/- per

month. Therefore, this Court is of the considered view that the notional

income of the claimant can be fixed as ₹17,325/-. By formulating the above

proposition, this Court would hope that the same would bring succor to

the claimants in cases where fixation of notional income of the minor child

is involved. Moreover, this Court feels that time has come where it has

MACA NOS.223 OF 2021 &

483 OF 2021

18 2024:KER:81459

become expedient to move forward from the principles laid down by this

Court in National Insurance Company and others Vs

K.K.Assainar [2019 (4) KLT 39] since it is felt that the said decision

does not fully address the issue which has cropped up in this appeal.

Moreover, in order to achieve the true purport of beneficial legislation a

deeper analysis is required. This Court is conscious of the fact that by

referring to the provisions of the Minimum Wages Act 1948, for the

purpose the notional income of a minor child, this Court has never ignored

the future of a blooming young mind nor has closed its eyes over the

bright future of the child and the prospects which he may have secured but

for this fatal accident. The above exercise is purely intended to serve as a

guidance for the purpose of calculation of the notional income without

which the claimants would be left foundered.

16. Now having ascertained the notional income as above, the

entitlement of the claimant/appellant for compensation under various

heads can be considered as follows :-

16.1 Bystander expenses/attendant charges :- The tribunal

awarded compensation under the heads ‘future treatment charges and

bystander expenses’ under one single head. This is impermissible under

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483 OF 2021

19 2024:KER:81459

law. The entitlement for future treatment will be dealt later in the

judgment.

16.2 In order to calculate the bystander expenses, the tribunal adopted

the principle of reasonable assessment. Is this method justiciable?

Without any doubt in its mind this Court is firm in its view that the same is

not in view of the judgment of the Hon’ble Supreme Court in Kajal

(supra). The Hon’ble Apex Court held that while calculating the

attendant charges/bystander expenses in a claim arising under Section 166

of the Motor Vehicles Act, 1988, multiplier system has to be applied.

Paragraph 22 of the judgment of the Hon’ble Supreme Court in Kajal

(supra) is extracted hereunder :-

22. The attendant charges

The attendant charge has been awarded by the High

Court @ Rs.2,500/ per month for 44 years, which

works out to Rs.13,20,000/. Unfortunately, this

system is not a proper system. Multiplier system is

used to balance out various factors. When

compensation is awarded in lump sum, various

factors are taken into consideration. When

compensation is paid in lump sum, this Court has

always followed the multiplier system. The multiplier

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483 OF 2021

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system should be followed not only for determining

the compensation on account of loss of income but

also for determining the attendant charges etc. This

system was recognised by this Court in Gobald Motor

Service Ltd. v. R.M.K Veluswami, AIR 1962 SC 1. The

multiplier system factors in the inflation rate, the rate

of interest payable on the lump sum award, the

longevity of the claimant, and also other issues such

as the uncertainties of life. Out of all the various

alternative methods, the multiplier method has been

recognised as the most realistic and reasonable

method. It ensures better justice between the parties

and thus results in award of ‘just compensation’

within the meaning of the Act.

16.3 Therefore having found that the multiplier system has to be

adopted for the purpose of calculating the attendant charges, this Court

proceeds to consider the respective contentions of the parties as to

whether the attendant charges has to be fixed in terms of the notional

income or on a consolidated amount or as fixed by the Hon’ble Supreme

Court in Chaus Taushif Alimiya v. Memon Mahmmad Umar

Anwarbhai [AIR 2023 SC 1110] . The adjudication on this point is

required because, despite the paraparesis state of the claimant/appellant,

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483 OF 2021

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the learned Senior Counsel for the Insurance Company raised serious

objections to the claim of the claimant. According to the learned Senior

counsel Sri.George Cherian, though the Hon’ble Supreme Court had laid

down the principle of applying the multiplier system for calculating the

attendant charges, later in Chaus Taushif Alimiya (supra) , the

consolidated amount was taken for the purpose of calculating the

attendant charges. The same principle was followed by this Court in

United India Insurance Company Limited v. Dilna Dineshan

[2022(2) KHC 396]. In short, the pointed submission of the learned

Senior counsel is that even if this Court proceeds to fix the attendant

charges by applying the multiplier system, only an amount of ₹5,000/-

can be granted for one attendant.

16.4 Prima facie, this Court finds that the argument of the learned

Senior counsel and the stand taken by the insurance company is not only

fallacious but also inconsiderate in the light of the factual state of the

claimant. The vehemence under which the insurance company opposes the

plea is as though this Court is dealing with an appeal for enhancement

against a minor injury. Such an inconsiderate mind of a corporate entity

cannot be appreciated by this Court. The Insurance company certainly has

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483 OF 2021

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a corporate social responsibility which should deter them from raising

these untenable contentions. However, before going towards an in-depth

analysis of the arguments raised by the learned Senior Counsel as regards

the fixation of the attendant charges as ₹5,000/-, this Court needs to

decide whether there is any absolute proposition of law laid down by the

Hon’ble Supreme Court in Chaus Taushif Alimiya (supra ) so as to

pegg the attendant charges at Rs 5000/- per month.

16.5 It is true that in Chaus Taushif Alimiya (supra ), the

Hon’ble Supreme Court followed the principles laid down in Kajal (supra)

and granted ₹10,000/- per month as attendant charges by applying the

multiplier system. However, does the decision of the Hon’ble Supreme

Court in Chaus Taushif Alimiya (supra) laid down an absolute

proposition of law requiring this Court to necessarily follow the same so

as to fix the attendant charges at ₹5,000/- per month. It must be

remembered that the Supreme Court determined the attendant charges

in Kajal (supra) by placing reliance on the notification issued under the

provisions of the Minimum Wages Act, 1948. On a close reading of the

decision of the Hon’ble Supreme Court in Chaus Taushif Alimiya

(supra) and in Divya (supra), it is clear that the decision was rendered on

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483 OF 2021

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particular facts of that case. Moreover, while considering the question of

award of damages, no absolute rule can be laid down so as to restrict the

right of the claimant to receive the compensation. If the argument of the

learned Senior Counsel for the Insurance Company is accepted, the court

will be ignoring the basic principles governing the award of damages in

tortious liabilities. Still further, this Court cannot remain oblivious of the

fact that the date of accident in Kajal (Supra) was in the year 2007 .

However, in the present case, the accident occurred in the year 2016 and

considering the depreciation of the value of rupee and considering the

overall rise of inflation, the insurance company cannot still maintain that

Rs.5,000/- alone can be granted. Ultimately, the endeavor is to grant just

and fair compensation. Hence this Court is of the view that while fixing

attendant charges there is no absolute rule that only Rs.5,000/- alone can

be granted. The Court cannot shut its eyes to the realities of life and simply

believe that for attending a child in paraparesis state, services of an

attendant will be readily available for Rs 5,000/-.

16.6 However having said so, the court needs to thread carefully

while granting the attendant charges. The appellant claims that the

attendant charges have to be calculated in terms of the notional income so

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483 OF 2021

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fixed by this Court applying the provisions under the Minimum Wages Act,

1948. It is true that while fixing the attendant charges, the Hon’ble

Supreme Court in Kajal (supra) had adopted the notification issued

under the provisions of the Minimum Wages Act, 1948. However, though

this Court has found that there is no absolute Rule that while considering

the claim under the attendant charges only an amount of Rs.5,000/- can

be fixed, the argument of the learned counsel for the appellant that

minimum wage prescribed has to be applied cannot sustain. It is pertinent

to mention that the minimum wages fixed by the State of Kerala is always

the highest in the country. Though it may be possible to hold that for fixing

the notional income, reliance can be placed on the notification issued

under the provisions of Minimum Wages Act 1948, fixing the attendant

charges based on the notification may lead to an anomalous situation

where the compensation to be awarded is likely to go out of proportion.

Since there are no guiding principles laid down either under the Statute or

under any precedents, this Court is of the considered view that the income

to be adopted for calculating attendant charges has to be just and fair

considering the salutary principles enshrined under Section 166 of the

Motor Vehicles Act, 1988. With the above principles in backdrop, this

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Court proceeds to consider the claim for fixing of the attendant charges.

16.7 In the present case, the notification issued by the Government

of Kerala under the provisions of Minimum Wages Act, 1948 fixes the

maximum income at ₹17,325/-. This Court has also found that the

notional income of the claimant has to be fixed at ₹17,325/-. In the

peculiar facts and circumstances of this case, this Court is of the

considered view that an amount of ₹10,500/- can be taken as the monthly

income for calculating the attendant charges for the child who was

getting ready for blossoming into life and is forced to confine to the bed

probably for the rest of his life. This Court feels it appropriate to grant the

attendant charges for two persons, since, it has been come out in evidence

that the claimant/appellant requires the assistance of two attendants.  

17. Permanent Disability :- Coming to the next question as to

whether the claimant is entitled to have the functional disability at 100%,

the learned counsel for the appellant Sri.S.Sreedev pointed out that

despite the percentage of disability fixed by the Medical Board, the

tribunal can always appropriately modified the percentage of disability

depending upon of the facts of each case.

17.1 In Rekha Jain & another v. National Insurance

MACA NOS.223 OF 2021 &

483 OF 2021

26 2024:KER:81459

Company Ltd. [2013 (8) SCC 389] , the Hon’ble Supreme Court

considered the question of fixing the functional disability based on the

permanent disability suffered in a motor accident and held that the

question of fixing the functional disability based on the permanent

disability would depend upon the facts of each case and also the avocation

followed by the claimant.

17.2 In Sarnam Singh v. Shriram General Insurance

Company Ltd. [2023 KHC 6687], the Hon’ble Supreme Court again

considered this issue. While answering the question in affirmative, the

Hon’ble Supreme Court held that “any physical disability resulting from an

accident has to be judged with reference to the nature of the work being

performed by a person who suffered disability. The same injury suffered

by two different persons may affect them in different ways. Loss of leg by a

farmer or a rickshaw puller may be the end of the road as far as his earning

capacity is concerned. Whereas, in case of the persons engaged in some

kind of desk work in office, loss of leg may have lesser effect.”

17.3 Keeping in mind, the principles laid down by the Hon’ble

Supreme Court in Rekha Jain (supra) and Sarnam Singh (supra),

when this Court proceeds to analyse the present state of affairs of the

MACA NOS.223 OF 2021 &

483 OF 2021

27 2024:KER:81459

claimant/appellant, it cannot shut its eyes on the ground reality that a 5

year old UKG student who had lost his blossoms of childhood was

confined to the bed even today, resulting in his inability to do his all

personal needs without having the assistance of two attendants. When the

present state of affairs of the claimant/appellant comes to the mind of this

Court, this Court has no hesitation, even for a moment, to hold that the

claimant/appellant has to be assessed with a functional disability of 100%.

Therefore, despite the assessment of 77% disability under Ext.C1 as has

been taken by the tribunal, this Court is of the considered view that the

claimant/appellant has to be assessed with 100% functional disability and

to that extent, the award of the tribunal is modified.

17.4. Once the functional disability is assessed at 100% then what

should be the quantum of compensation to be awarded. Hitherto there

were no guidelines regarding the grant of compensation for permanent

disability. In Master Mallikarjun Vs Divisional Manager, The

National Insurance Co [(2014) 13 SCC 396], the Apex Court laid

down certain guiding principles in the matter of the grant of compensation

in case of permanent disability of a minor child. However, Hon’ble

Supreme Court felt that the principles laid down in the above Judgment

MACA NOS.223 OF 2021 &

483 OF 2021

28 2024:KER:81459

did lead to certain inconsistency in the matter of awarding of

compensation. Hence it was felt that adoption of the multiplier system

would efface the inconsistency to some extent and thus a different

approach in Kajal (supra) was taken. Thus the tribunal rightly adopted

the multiplier system while calculating the compensation under

permanent disability.

18. Future prospects :- The Tribunal even after noticing the

peculiar facts of this case did not deem it appropriate to grant future

prospects. The entitlement for future prospects is governed by the

decision of the Supreme Court in Pranay Sethi (supra). Therefore, this

Court deem it appropriate not to elaborate the proposition any further and

is of the considered view that the claimant/appellant is entitled for the

future prospects. The future prospects is fixed @ 40% on ₹17,325/- which

is the notional income fixed. Thus an amount of Rs 24,255/- is fixed as the

multiplicand. In cases of permanent disability also the claimant can seek

amounts for future prospects going by the decision of the Hon’ble

Supreme Court in Sidram vs. Divisional Manager, United India

Insurance Company limited [2022 SCC Online 1597].

19. The next question to be considered by this Court is whether the

MACA NOS.223 OF 2021 &

483 OF 2021

29 2024:KER:81459

loss of earning power and compensation towards permanent disability will

go together. The learned Senior counsel for the insurance company placed

reliance on the decision of the Full Bench of this Court in Oriental

Insurance Company Limited v. V. Hariprasad and Others

[2005 (4) KLT 977 (F.B)] wherein the Full Bench had occasion to

consider this question. It was held that if compensation is granted under

the head permanent disability, then the claimant is not entitled for

compensation under the head loss of earning power. Paragraph 29 of the

decision reads as under :-

29. Resultantly, we find that (1) Loss of earning

power is one of the consequences that follows

from a permanent disability; (2) Permanent

disability is a physical impairment which results

in distinct personal, social and financial

consequences to be classified as one head

requiring compensation to be worked out as one

entitling for non-pecuniary damages; (3) An

injured, who sustained a disability is entitled to

claim compensation under the head permanent

disability. If the resultant deprivation is

categorized and claim is made under separate

heads and compensation is awarded under the

above heads, over and above the same, for the

deprivation suffered compensation is not to be

granted under the general head permanent

disability; (4) all the eventualities that may

surface on account of a disability, which deserve

to be compensated may not be possible to be

MACA NOS.223 OF 2021 &

483 OF 2021

30 2024:KER:81459

cataloged and essentially the tribunal has to

determine the claim bearing in mind the

statutory mandate that what is payable is a just

compensation; and (5) while awarding

compensation under the head permanent

disability, the Tribunal should take notice of the

loss of earning power, in each individual case, in

case a claim is made as one of the contributory

to the total packet of compensation and shall not

take into consideration the loss of earning

power as a separate head after fixation of

compensation for permanent disability)

19.1 However can it be said that the decision of the Full Bench

of this Court in V. Hariprasad (supra) holds good even today. It is

true that momentarily this Court was carried away with the

submissions of the learned Senior counsel based on the decision of

the Full Bench. However, on a close exploration of the precedents,

this Court finds that contrary view has been expounded by the

Hon’ble Supreme Court. In B. Kothandapani Vs Tamil Nadu

Road Transport Corporation Limited [(2011) 6 SCC 420] the

Hon’ble Supreme Court held that there is no bar for claiming

compensation under the head loss of earning as well as for

permanent disability.

19.2 It cannot be ignored that the permanent disability leads

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483 OF 2021

31 2024:KER:81459

to the loss of enjoyment of the amenities and comfort in life. Though

the person suffering from permanent disability is entitled to claim

compensation, in a given case where the nature of permanent

disability is in such a proportion that may incapacitate the person

from earning in his life, the Court cannot turn a blind eye towards

the debilitating physical condition of the child. It is true that the

compensation for loss of earning power/capacity has to be

determined based on various aspects including permanent

injury/disability. At the same time, it cannot be construed that

compensation cannot be granted for permanent disability of any

nature. To cite an example, in the case of a non-earning member of a

family who is injured in the accident resulting in permanent

disability due to amputation of leg or hand, it cannot be construed

that no amount needs to be granted for permanent disability. Apart

from the fact that the permanent disability affects the earning

capacity of the person concerned, undoubtedly, one has to forego

other personal comforts and even for normal activities they need to

depend on others.

19.3. In S.Manickam Vs Metropolitan Transport

MACA NOS.223 OF 2021 &

483 OF 2021

32 2024:KER:81459

Corporation Limited [(2013) 12 SCC 603], the Apex Court held

that the claim under the head loss of earning power and permanent

disability is perfectly sustainable. Para 14 of the Judgment is

extracted as under.

Para 14.- In matters of determination of

compensation, particularly, under the Motor

Vehicles Act, both the tribunals and the High Courts

are statutorily charged with a responsibility of fixing

a “just compensation”. It is true that determination

of “just compensation” cannot be equated to a

bonanza. On the other hand, the concept of “just

compensation” suggests application of fair and

equitable principles and a reasonable approach on

the part of the tribunals and the Courts. We hold that

the determination of quantum in motor accidents

cases and compensation under the Workmen’s

Compensation Act, 1923 must be liberal since the law

values life and limb in free country in generous

scales. The adjudicating authority, while

determining the quantum of compensation, has to

take note of the sufferings of the injured person

which would include his inability to lead a full life,

his incapacity to enjoy the normal amenities which

he would have enjoyed but for the injuries and his

ability to earn as much as he used to earn or could

have earned. While computing compensation, the

approach of the tribunal or a Court has to be broad

based and sometimes it would involve some

guesswork as there cannot be any precise formula to

determine the quantum of compensation.

19.4 A Division Bench of this Court in Minor Basid VS K.C.Sanu

MACA NOS.223 OF 2021 &

483 OF 2021

33 2024:KER:81459

and Another [2018 (2) KHC 671] had deeply analyzed the precedents

on the point and came to the conclusion that the compensation for loss of

earning as well as for permanent disability is maintainable. Para 33 of the

Judgments reads as under:

33. From the touch stone of the ratio in the above

judgments, we have examined the heads under which

compensation was awarded by the learned Tribunal,

which award is impugned herein by the Insurance

Company in M.A.C.A.No.2514 of 2016. As is available

from the afore extracted table, the learned Tribunal has

awarded Rs.2,50,000/- under the head 'loss of studies',

Rs.3,00,000/- for 'loss of earning power' and

Rs.2,50,000/- for 'loss of amenities of life'. In addition

to this, an amount of Rs.3,00,000/- has been awarded,

even without it being sought for in the claim petition,

under the head 'shortened expectation of life'. These

amounts were awarded by the learned Tribunal noticing

the rather peculiar and singular condition of the victim,

who was in a completely vegetative state even at that

time and who unfortunately continues to be so even

today. Even though an amount of Rs.6,00,000/- was

awarded for 'continued physical disability', which

disability now appears to be incapable of being ever

remedied, going by the ratio of the various judgments

above, the victim cannot be denied compensation for

loss of amenities of life or for loss of earning power,

since these are two different concepts, once relating to

the disability and its agony while the other relates to

loss of amenities and the attributes of a meaningful and

happy life, which have now been lost forever to the

victim. In that perspective, even loss of studies is not

merely a limb to be attached to the condition of

permanent disability but one that has robbed the child

MACA NOS.223 OF 2021 &

483 OF 2021

34 2024:KER:81459

of a worthy life, which he would have otherwise had, but

for the accident. Similarly, the compensation awarded

for shortened expectation of life also cannot be faulted

since there is no guarantee now for the life expectancy

of the child and it is nothing but a miracle that he has

survived in spite of his extremely debilitating physical

condition.

19. 5 The decision of this Court as afore was assailed before the

Hon’ble Supreme Court at the instance of the Insurance Company in Civil

Appeal No 6751 and 6752 of 2018. The Apex Court by Judgment dated 17-

7-2018 granted leave and dismissed the appeal. That be so, the decision of

the Division bench certainly holds the field. It must be remembered that

the true purport of the Motor Vehicles Act, 1988 is indeed beneficial, and

time has come for the courts to move away from the archaic principles

giving restrictive interpretation to the provisions of the Act. This exactly is

what this Court could gather from a close reading of precedents rendered

by the Hon’ble Supreme Court on the precise question as posed in the

appeal. Therefore this Court expresses its inability to accept the argument

of the learned Senior Counsel for the Insurance company. Thus the

challenge to the award on that ground has to be turned down.

20.Pain and suffering : - A perusal of the award impugned in

the appeal shows the tribunal had granted a compensation of ₹3,00,000/-

MACA NOS.223 OF 2021 &

483 OF 2021

35 2024:KER:81459

towards pain and sufferings as against a claim of ₹5,00,000/-. The learned

counsel for the claimant Sri.S.Sreedev relied on the judgment of the

Hon’ble Supreme Court in Kajal (supra), and contended that an amount

of ₹15,00,000/- has to be granted towards pain and suffering. Though this

Court has no hesitation to hold that the claimant can be awarded with a

compensation of ₹15,00,000/- under the head pain and suffering in a case

of 100% disability following the decision of the Hon’ble Supreme Court in

Kajal (supra), an incidental question may have to be addressed by this

Court. According to Sri. George Cherian, the learned Senior counsel

appearing for the insurance company, going by the averments in the claim

petition, the claimant has only claimed an amount of ₹5,00,000/ and

therefore, the claimant/appellant is not entitled for a compensation of

₹15,00,000/- towards pain and suffering. This Court is afraid that the

contention of the learned Senior counsel cannot be countenanced. In

Oriental Insurance Company Limited v. Martin Xavier [2024

KLT online 2579], this Court {ES.J} has already held that merely

because the claimants in their application had claimed a lesser amount will

not preclude the courts or the tribunal from granting a higher

compensation in terms of the provisions contained under Section 166 of

MACA NOS.223 OF 2021 &

483 OF 2021

36 2024:KER:81459

the Motor Vehicles Act, 1988. Moreover, while deciding a claim petition,

the Courts or tribunal is not deciding an adversarial litigation. Strict law of

pleadings cannot be applied while dealing with a claim petition under

Section 166 of the Motor Vehicles Act 1988. Hence, this Court is of the

view that the appellant is entitled for compensation under the head pain

and suffering as ₹15,00,000/- going by the principle laid by the Hon’ble

Supreme Court in Kajal (supra).

21.Non conventional heads (marriage prospects, dietary

allowances) :- The next claim raised by the claimant is for

compensation towards dietary expenses, marriage prospects etc. It is

pertinent to mention that in the claim petition, no such claim was made

before the tribunal. A perusal of the application filed before the tribunal

shows that a consolidated amount under the head compensation for loss of

amenities and convenience in the life was claimed by the

claimant/appellant. As against the claim of ₹5,00,000/-, the tribunal had

already granted an amount of ₹4,00,000/- as compensation. It may be

true that the child has to be put through a special diet because of the

paraparesis state of the body. But however, it will be difficult for this

Court to assess in exact terms what should be the compensation towards

MACA NOS.223 OF 2021 &

483 OF 2021

37 2024:KER:81459

the dietary expenses. Faced with this situation, this Court is of the

considered opinion that a reasonable enhancement under the head loss of

amenities can be granted considering the fact that the parents of the

claimant will be necessarily attending the child for life with a hope that he

will be able to walk in his life at some point in time. Considering these

aspects, this Court is of the considered opinion that a further amount of

₹3,50,000/- can be granted in addition to the amount granted by the

tribunal.

21.1 Still further, Sri.S.Sreedev, the learned Counsel for the appellant

relied on the Judgment of the High Court of Delhi in Jyoti Singh v.

Nand Kishore and Others and ICICI Lombard General

Insurance Company Ltd. v Jyoti Singh and Others [2024 ACJ

161] and urged that the dietary expenses have to be granted at the rate of

Rs.36,200/- per month adopting the multiplier system. However, this

Court cannot subscribe to the argument of the learned counsel for the

simple reason that no evidence was adduced before the tribunal with

regard to the requirement of ₹36,200/- as special diet. In the facts of that

case decided by the High Court of Delhi, there was clear evidence in the

form of a prescription of the special diet for the child. However it is beyond

MACA NOS.223 OF 2021 &

483 OF 2021

38 2024:KER:81459

doubt that the child in a paraparesis state will definitely require a special

diet. Considering the peculiar circumstances, this court is inclined to

award Rs.3,00,000 towards dietary expenses.

  21.2 As far as marriage prospects are concerned, it is to be noted that

the Hon’ble Supreme Court in Kajal (supra) had granted an amount of

₹3,00,000/-towards the marriage prospects. Applying the same, this

Court is of the considered view that the said amount could be fixed as a

loss of marriage prospects.

21.3. In the earlier part of the judgment, this Court had found that the

tribunal had joined the claim under future treatment as well as under the

head bystander expenses. This requires separation. Once it is separated,

no compensation under the head future treatment will remain unawarded.

This anomaly has to be rectified. The entitlement for future treatment is

beyond dispute. But unfortunately, no evidence is available for this Court

to assess the same. Therefore this Court is required to undertake a

speculative exercise in order to achieve the object of just and fair

compensation. Considering the totality of the facts and circumstances this

court is of the view that an amount of Rs. 3,oo,000/- can be granted

towards the future treatment.

MACA NOS.223 OF 2021 &

483 OF 2021

39 2024:KER:81459

22. Multiplier to be adopted.-. Sri. S. Sreedev, the learned

Counsel for the appellant submitted that tribunal went wrong in applying

the multiplier of 15 instead of 18. Reliance is placed on the decision of the

learned Single Bench in Aneesha Mol H & Another v. Najeem @

Nejumon & Another [2023 (6) KLT 122] and Dilna

Dineshan(supra). However, per contra, the learned Senior Counsel for

the Insurance company submitted that going by the principles laid down

by the Supreme Court in Divya (supra) the multiplier has been rightly

fixed.

22.1. On a careful consideration of the various precedents, it becomes

obvious that there is apparent conflict between multiple decisions of the

Apex Court as well as by this Court. Should this conflict be resolved only

through a reference to the Larger Bench or this Court should decide the

issue in order to give quietus to the dispute.

22.2 Before arriving at a final conclusion, it is necessary to cite a few

precedents on this issue which is the root cause for the inconsistency now

projected.

i) In Sarala Varma Vs Delhi Transport Corporation [2009

MACA NOS.223 OF 2021 &

483 OF 2021

40 2024:KER:81459

KHC 4634], the Hon’ble Supreme Court found that the 2nd Schedule to

the Motor Vehicles Act 1988 has certain inconsistency. The said

inconsistency was resolved in paragraph 30 of the Judgment which reads

as under:

Para 30. Tribunals/courts adopt and apply different

operative multipliers. Some follow the multiplier with

reference to Susamma Thomas (set out in column 2 of

the table above); some follow the multiplier with

reference to Trilok Chandra, (set out in column 3 of the

table above); some follow the multiplier with reference

to Charlie (Set out in column (4) of the Table above);

many follow the multiplier given in second column of

the Table in the Second Schedule of MV Act (extracted

in column 5 of the table above); and some follow the

multiplier actually adopted in the Second Schedule

while calculating the quantum of compensation (set out

in column 6 of the table above). For example if the

deceased is aged 38 years, the multiplier would be 12 as

per Susamma Thomas, 14 as per Trilok Chandra, 15 as

per Charlie, or 16 as per the multiplier given in column

(2) of the Second schedule to the MV Act or 15 as per the

multiplier actually adopted in the second Schedule to

MV Act. Some Tribunals, as in this case, apply the

multiplier of 22 by taking the balance years of service

with reference to the retiring age. It is necessary to

avoid this kind of inconsistency. We are concerned with

cases falling underS.166 and not under S.163A of MV

Act. In cases falling under S.166 of the MV Act, Davies

method is applicable.

ii) In Reshma Kumari and Others Vs Madan Mohan and

MACA NOS.223 OF 2021 &

483 OF 2021

41 2024:KER:81459

Another [(2013)9SCC 65] the Apex Court was called upon to decide

what should be multiplier for persons below 15. In concluding paragraph it

was held as under :

In what we have discussed above, we sum up our

conclusions as follows:

(i)In the applications for compensation made under

S.166 of the 1988 Act in death cases where the age of the

deceased is 15 years and above, the Claims Tribunals

shall select the multiplier as indicated in Column (4) of

the table prepared in Sarla Verma, 2009 (6) SCC 121,

read with para 42 of that judgment.

(ii)In cases where the age of the deceased is upto 15

years, irrespective of the S.166 or S.163A under which

the claim for compensation has been made, multiplier

of 15 and the assessment as indicated in the Second

Schedule subject to correction as pointed out in Column

(6) of the table in Sarla Verma, 2009 (6) SCC 121, should

be followed.

(iii)As a result of the above, while considering the

claim applications made under S.166 in death cases

where the age of the deceased is above 15 years, there is

no necessity for the Claims Tribunals to seek guidance

or for placing reliance on the Second Schedule in the

1988 Act.

(iv)The Claims Tribunals shall follow the steps and

guidelines stated in para 19 of Sarla Verma, 2009 (6)

SCC 121 for determination of compensation in cases of

death.

(v)While making addition to income for future

prospects, the Tribunals shall follow paragraph 24 of

the Judgment in Sarla Verma, 2009 (6) SCC 121.

MACA NOS.223 OF 2021 &

483 OF 2021

42 2024:KER:81459

(vi)Insofar as deduction for personal and living

expenses is concerned, it is directed that the Tribunals

shall ordinarily follow the standards prescribed in

paragraphs 30, 31 and 32 of the judgment in Sarla

Verma, 2009 (6) SCC 121, subject to the observations

made by us in para 38 above.

(vii)The above propositions mutatis mutandis shall

apply to all pending matters where above aspects are

under consideration.

iii) However without noticing the above decision, a Three Bench of the

Hon’ble Supreme Court in Rajesh and Others Vs Rajbir Singh and

Others [(2013) 9 SCC 54] held that the multiplier of ‘18’ has to be

adopted in case of claimants below the age of 15.

iv) In National Insurance Company Vs Pranay Sethi [(2017)16

SCC 680] the Constitution Bench of the Supreme Court overruled the

decision in Rajesh (supra) and held that Reshma Kumari (Supra)

was rightly decided.

v) In Abhimanyu Pratap Singh Vs Namita Sekhon and Another

[(2022) 8 SCC 489] it was held that while deciding Pranay Sethi

(Supra) and Sarla Varma (Supra) the Honourable Supreme Court did

not specify what should be the multiplier in cases where the age of the

MACA NOS.223 OF 2021 &

483 OF 2021

43 2024:KER:81459

claimant is below 15 and thus adopted the multiplier of 18. Pertinently,

while holding so the the Apex Court followed multiplier adopted in

Kajal(supra)

22.3 Having noticed the precedents as above, it becomes obvious

that there is a serious conflict in the decisions of the Apex Court as well as

the decision rendered by this court in Dilna Dineshan and Aneesha

Mol (Supra).

22.4. It must be however noticed that the law on this point was

settled by the Supreme Court in Reshma Kumari (Supra) which was

affirmed in Pranay Sethi (Supra). However in Abhimanyu Prathap

Singh (Supra) the Apex Court noticed that the earlier decision did not

specify the multiplier to be followed in case of age group below 15 and

hence fixed the same at “18’. This incongruous situation was sought to be

rectified by the Supreme Court in its decision in Divya (Supra). Of course,

it may be possible to hold that while deciding Divya (Supra) the Apex

Court was bound by its earlier decision and hence a different view could

not have been expressed and thus leading to the conflict of decisions. It

must be noted that when Reshma Kumari (Supra) as affirmed by the

Constitution Bench in Pranay Sethi (Supra) holds the field, any decision

MACA NOS.223 OF 2021 &

483 OF 2021

44 2024:KER:81459

rendered contrary cannot be accepted as binding precedent. Similarly

while deciding Dilna Dineshan (Supra) and Annesha Mol (Supra) the

learned Single Bench of this Court did not notice the decision of the

Supreme Court in Reshma Kumari (Supra) and Pranay Sethi

(Supra). Hence the decisions cannot be construed as laying down the

correct proposition of law. Now what remains to be considered is the

precedential value of the decision in Kajal (Supra) and Abhimanyu

Prathap Singh (Supra). Even in the absence of the decision of the

Supreme Court like in Divya (Supra), this Court would not have followed

the above decisions since the decisions were rendered contrary to the

principle laid down by the Constitution Bench in Pranay Sethi (Supra).

Hence to the extent which the decision in Kajal (Supra) and Abhimanyu

Pratap Singh (Supra) applies the multiplier of ‘18’ runs contrary to the

decision of Constitution Bench in Pranay Sethi (Supra) has to be

construed to have been decided on facts of that particular case . Thus this

Court finds considerable force in the submission of the learned Senior

Counsel for the Insurance Company that the multiplier has to be fixed at

‘15’ alone and not at ‘18’ as contended by the learned counsel for the

appellant.

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45 2024:KER:81459

23. Future interest : - Under this head, this Court will have to

consider two rival submissions. The Insurance Company contends that

interest cannot be awarded for compensation under the head future

treatment, whereas the claimant contends that interest awarded by the

tribunal at 7% from the date of application till realisation is not sufficient.

The grant of interest in a motor accidents claim is governed by Section 171

of the Motor Vehicles Act, 1988. Section 171 of the Motor Vehicles Act,

1988 reads as under :-

171. Award of interest where any claim is allowed. -

Where any Claims Tribunal allows a claim for

compensation made under this Act, such Tribunal

may direct that in addition to the amount of

compensation simple interest shall also be paid at

such rate and from such date not earlier than the date

of making the claim as it may specify in this behalf.

23.1 A reading of the aforesaid provision makes it clear that the

award of the interest is the discretion of the tribunal. Unless it is shown

that the exercise of the discretion by the tribunal is arbitrary or capricious,

the Appellate court may not interfere with the award of interest granted by

exercising the discretion. However, having said so, the grant of interest

also forms a substantial part of just and fair compensation as enshrined

under Section 166 of the Motor Vehicles Act, 1988. Therefore answering

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483 OF 2021

46 2024:KER:81459

the first question, this Court is of the view that the tribunal while

considering the claim for compensation cannot carve out distinct heads

while granting interest. In other words, the entitlement for interest is on

the entire amount of compensation and not on the amount awarded under

a particular head.

23.2 Be that as it may, can the High Court, while exercising its

appellate power, increase the rate of interest because the grant of interest

by the tribunal falls within the realm of discretion exercised by the

Tribunal. Normally, the Appellate Court will not interfere with the

discretion as stated above unless it is shown as powers of discretion. But

that by itself will not denude the power of the High Court to enhance the

interest if sufficient reasons are made out.

23.3. In Supe Dei (Smt) and others Vs National Insurance

Company and another [(2009)4 SCC 513] , the Apex Court held that

in a claim under Section 166 of the Motor Vehicles Act 1988, 9% is the

appropriate rate of interest to be awarded.

23.4. In the peculiar facts and circumstances of the case, this Court

finds that the appellant/claimant is entitled for an enhancement at the

MACA NOS.223 OF 2021 &

483 OF 2021

47 2024:KER:81459

rate of interest. Thus the rate of interest is fixed as 9% from the date of the

award 07.07.2020 till the realization.

24. As an upshot of these discussions, this Court finds that MACA

No.483 of 2021 filed by the insurance company is liable to be dismissed.

MACA No.223 of 2021 is partly allowed and the enhanced compensation

granted by this Court is as follows :

Sl.

No

Head of

Claim

Amount

claimed

Amount

awarded by

the tribunal

Enhanced

amount of

compensation

Total

compensation

awarded in the

appeal

1

1.1

Future

treatment

charges

Bystander

expenses/

Attendant

charges

—-

10,00,000

—--

10,00,000

—--

37,80,000

(10,500x2x12x

15)

3,00,000

27,80,000

(37,80,000-

10,00,000-)

2

Pain and

suffering

5,00,000

3,00,000

15,00,000

12,00,000

(15,00,000-

3,000,00)

3

Continuing

and

permanent

disability

40,00,000

11,08,800

24,255x12x15

=

43,65,900

32,57,100

(11,08,800

-43,65900)

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483 OF 2021

48 2024:KER:81459

5 Loss of

convenienc

es and

amenities

in life

5,00,000 4,00,000 7,50,000

3,50,000

(7,50,000-

400000)

6 Marriage

prospects

Nil Nil 3,00,000 3,00,000

7 Dietary

expenses

Nil Nil 3,00,000 3,00,000

TOTAL

CLAIM IS

LIMITED

TO

10185000

5000000

44,94,223

84,87,100

Accordingly, the appellant/claimant is awarded an additional

compensation of Rs.84,87,100/- (Rupees eighty four lakhs eighty seven

thousand one hundred only) over and above the compensation awarded by

the Tribunal with interest @ 9% per annum from the date of petition till

realization together with proportionate costs. The Insurance Company is

directed to deposit the aforesaid amount within a period of 30 days from

the date of receipt of a copy of this judgment as per the procedure

prescribed. It is made clear that the appellant would also be entitled for

proportionate cost in the appeal. Since the appellant has limited the claim

in this appeal and this Court has granted compensation more than what is

now claimed by the appellant, the Motor Accident Claims Tribunal

Muvattupuzha, shall deduct the requisite court fee from the amount of

MACA NOS.223 OF 2021 &

483 OF 2021

49 2024:KER:81459

compensation. It is further ordered that out of the enhanced

compensation granted by this Court, an amount of Rs.50,00,000/-

(Rupees Fifty Lakhs only) shall be transferred to the corpus fund as

ordered by the tribunal. The same shall be operated only under the orders

of the tribunal.

Sd/-

EASWARAN S.,

JUDGE

SMA