SRI. BENSON GEORGE versus RELIANCE GENERAL INSURANCE CO. LTD.& ANR. on 25 February 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 28.09.2020 passed by the High Court of Karnataka atBengaluru in M.F.A. No.3183 of 2018 (MV), the original claimant haspreferred the present appeal with the prayer to enhance the amount ofcompensation.

2. In a vehicular accident which occurred on 01.01.2013 theclaimant sustained grievous brain injuries. He underwent brain surgery.Though he was discharged from the Hospital, he remained in coma eventill the claim petition was filed. At the relevant time the claimant wasworking as a Process Supervisor in Deutsche Bank and earningRs.4,59,425/- per annum. That at the time of accident he was aged 29years. That the claimant through his next friend i.e. his mother filed aclaim petition before the Motor Accident Claims Tribunal. That theLearned Tribunal awarded Rs.94,37,300/- on the different heads as under:

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AThe learned Tribunal awarded interest at the rate of 9% per annumfrom the date of petition till realization.

2.1 Feeling aggrieved and dissatisfied with the judgment and awardpassed by the learned Tribunal awarding a total sum of Rs.94,37,300/-towards the compensation with 9% interest both, the Insurance CompanyBas well as the original claimant preferred appeals before the High Court.By the impugned common judgment and order, the High Court has partyallowed the appeal preferred by the claimant and has enhanced theamount of compensation from 94,37,300/- to Rs.1,24,94,333/- underdifferent heads as under:C

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The High Court has however, reduced the interest from 9% perannum as awarded by the learned Tribunal to the interest at the rate of 6% per annum.

F2.2 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court in not awarding full claim as prayedfor, the original claimant has preferred the present appeal to enhancethe amount of compensation.

3. Learned counsel appearing on behalf of the claimant has Gvehemently submitted that in the facts and circumstances of the casethe High Court has committed a grave error in awarding Rs.2,00,000/-only under the head pain and suffering and Rs.1,00,000/- only under thehead of loss of future amenities and happiness.

3.1 It is vehemently submitted by learned counsel appearing onHbehalf of the claimant that in the accident the claimant sustained grievous brain injuries. He was hospitalized from 01.01.2013 to 15.03.2013 in St.John’s Hospital and from 16.03.2013 to 03.05.2013 in Brain & SpineCentre. He has undergone three major brain operations. It is submittedthat thereafter all throughout he is in coma and is bedridden. It is submittedtherefore that in the facts and circumstances of the case, the High Courthas erred in awarding Rs.2,00,000/- only under the head pain andsuffering. Therefore, it is prayed to enhance the amount of compensationunder the head pain and suffering suitably, considering the period ofhospitalization, the grievous brain injuries sustained by the claimant andthat he underwent multiple operations.

3.2 It is further submitted by learned counsel appearing for theclaimant that in the vehicular accident the claimant has suffered 100%disability and is completely bedridden. It is submitted that with thisdisability he will have to live a miserable life till his death. He will not bein a position to enjoy life and therefore the High Court has committed agrave error in awarding Rs.1,00,000/- only towards loss of amenitiesand happiness. It is submitted that the High Court has committed a graveerror in reducing the amount of interest from 9% per annum to 6% perannum.

Making the above submissions it is prayed to allow the presentappeal and to enhance the amount of compensation accordingly.

4. Present appeal is vehemently opposed by Ms. Prerna Mehtalearned counsel appearing on behalf of the Insurance Company.

4.1 Relying upon the decision of this Court in the case of RajKumar vs. Ajay Kumar and Anr., (2011) 1 SCC 343, it is submittedthat as held by this Court, when compensation is awarded by treatingthe loss of future earning capacity as 100% the need to awardcompensation separately under the head of loss of amenities or loss ofexpectation of life may disappear and as a result, only a token or nominalamount may have to be awarded under the head of loss of amenities orloss of expectation of life, as otherwise there may be a duplication in theaward of compensation.

4.2 It is submitted that therefore in the facts and circumstancesof the case no error has been committed by the High Court in awardingRs.1,00,000/- towards loss of amenities and happiness.

4.3 It is further submitted by learned counsel appearing on behalfof the Insurance Company that decision of this Court in the case of Raj AB

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AKumar (supra) has been subsequently considered and followed by thisCourt in the case of Lalan D. alias Lal and Anr. vs. OrientalInsurance Company Limited, (2020) 9 SCC 805.

4.4 It is also contended by learned counsel for the InsuranceCompany that in the facts and circumstances of the case the High CourtBhas not committed any error in reducing the interest from 9% per annumto 6% per annum.

5. We have learned counsel for the respective parties at length.

6. It is not in dispute and it has come on record that in a vehicularaccident the claimant sustained grievous brain injuries. That he wasChospitalized for a number of months. That he undergone MRI, CT scansand X-rays. That he sustained right temporal SDH, multiple hemorrhagiccontusions on temporal lobe, left parieto-occipital lobe, left parietal lobeand bilateral frontal lobe, hemorrhagic contusions left thalamic region s/o grade II diffuse axonal injury, moderate SAH in right sylvian cistern,Dmoderate diffuse cerebral edema, multiple comminuted and variablydepressed fracture in left squamous temporal and left parietal bone,bilateral occipital bone fracture, right sub-occipital SDH. Finally diagnosedthat traumatic brain injury sequelae-s/p frontotemporoparietalhemicraniectomy and right lower limb deep vein thrombosis.

EThat the claimant underwent multiple surgeries. Left fronto-temporoparietal decompressive hemicraniectomy with lax duroplasty doneon 02.01.2013. He underwent Percutaneous Endoscopic Gastrotomyunder GA. Since the petitioner sustained very severe injuries to the Brain,he was shifted to the Brain & Spine Centre, Chemmanakary, Kerala,where he was admitted from 16.03.2013 to 03.05.2013. He underwentFright side VP shunting (Chabra medium pressure regular) on 25.03.2013under GA. That the claimant is still in coma and totally bedridden.

7. Considering the prolonged hospitalization and medical treatmentand that the claimant underwent multiple surgeries, we are of the opinionGthat the High Court has erred in awarding Rs.2,00,000/- only under thehead pain and suffering. The pain, suffering and trauma suffered by theclaimant cannot be compensated in terms of the money. However, still itwill be a solace to award suitable compensation under different headsincluding the pain, shock and suffering, loss of amenities and happinessof life.

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7.1 In the facts and circumstances of the case due to the prolongedhospitalization and the multiple brain injuries/injuries sustained by theclaimant and that he is still in coma and is bedridden, we are of theopinion that if the amount of compensation under the head of pain, shockand suffering is enhanced to Rs.10,00,000/- (Rupees Ten Lakhs), it canbe said to be a reasonable amount under the head pain, shock andsuffering.

7.2 Similarly, the amount of Rs.1,00,000/- awarded by the HighCourt under the head loss of amenities and happiness can also be said tobe on lower side. As observed hereinabove no amount can compensatethe loss of amenities and happiness more particularly a person who is incoma since number of years and is bedridden for the entire life.

In the facts and circumstances of the case, we are of the opinionthat if the amount of compensation under the head loss of amenities andhappiness is enhanced to Rs.10,00,000/- (Rupees Ten Lakhs) from thatof Rs.1,00,000/- as awarded by the High Court, it can be said to be areasonable amount under the head loss of amenities and happiness.

8. Now with regard to reliance placed upon the decisions of thisCourt in the case of Raj Kumar (supra) and Lalan D. alias Lal (supra),relied upon by learned counsel appearing on behalf of the InsuranceCompany is concerned, we are of the opinion that the amount ofcompensation to be awarded under the heads, pain and suffering andloss of amenities and happiness, there cannot be straight jacket formula.It depends upon the facts and circumstances of each case and it variesfrom person to person who has suffered due to the accident. So far asawarding compensation on the head of pain, shock and suffering isconcerned, multiple factors are required to be considered namely,prolonged hospitalization; the grievous injuries sustained; the operationsunderwent and the consequent pain, discomfort and suffering.

8.1 Similarly, loss of amenities and happiness suffered by theclaimant and his family members also depend upon various factors,including the position of the claimant post-accident and whether, he is ina position to enjoy life and/or happiness which he was enjoying prior tothe accident. To what extent the claimant has lost the amenities in lifeand the happiness will depend on the facts of each case.

Therefore, in the facts and circumstances of the present casewhen the claimant is in coma even after a period of eight long years and A

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Athat he will have to be permanently bedridden during his entire life, asobserved above the amount of compensation awarded under the headloss of amenities and happiness of Rs.1,00,000/- only is unreasonableand meagre.

8.2 Now so far as the impugned judgment and order passed byBthe High Court reducing the amount of interest from 9% to 6% perannum is concerned, in the peculiar facts and circumstances of the case,the same is not required to be interfered with by this Court in exercise ofpowers under Article 136 of the Constitution of India.

9. In view of the above and for the reasons stated above, theCpresent appeal is allowed in part. The impugned judgment and orderpassed by the High Court is modified to the extent and it is held that theoriginal claimant shall be entitled to a total sum of Rs.1,41,94,333/-with interest at the rate of 6% per annum from the date of filing theclaim petition till realization. The enhanced amount of compensation shallbe deposited by the respondent – Insurance Company before the learnedDTribunal within a period of four weeks from today, failing which, it shallcarry interest at the rate of 7.5% per annum. On such deposit, the learnedTribunal is hereby directed to ensure that the amount of compensation isinvested in long term interest bearing deposits in different NationalizedBanks or Post Office so that the amount of compensation can be usedEfor the claimant and the same is not flittered away.

Present appeal is accordingly partly allowed to the aforesaidextent. In the facts and circumstances of the case, there shall be noorder as to costs.

FDevika Gujral

Appeal partly allowed.

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