1. The petitioner in OP(MV).186/2008 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, is the appellant. He filed the above OP under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 16.1.2007.

2. According to the petitioner, while he was travelling in a mini bus bearing registration No.KL-05/N 8562 from Thrissur to Ernakulam through NH 47, a Goods Carriage Omni van bearing registration No.KL9/H 6338 driven by the 2nd respondent in a rash and negligent manner hit on the petitioner’s vehicle and as a result of which, he sustained serious injuries. According to him the accident occurred due to the negligence of the 2nd respondent. Respondents 1 and 3 are the owner and insurer of the offending vehicle. In the OP he claimed a compensation of Rs.30 Lakhs.

3. The 3rd respondent, who alone contested the case admitted the accident as well as valid insurance policy. However, they disputed the liability to pay compensation for the alleged treatment underwent by the petitioner in foreign countries. They also contended that there was no negligence on the part of the 2nd respondent.

4. The evidence in the case consists of the oral testimonies of PW1 to 3 and Exts.A1 to A26. No evidence was adduced by the respondents. After evaluating the evidence on record, the Tribunal awarded a compensation of Rs.17,97,400/-. Being aggrieved by the amount of compensation awarded by the Tribunal, the petitioner preferred this appeal.

5. Now the point that arise for consideration is the following :

Whether the compensation awarded by the Tribunal is just and reasonable

6. Heard Sri.P.V.Baby, the learned counsel for the appellant and Sri.V.P.K.Panicker, the learned Standing Counsel for the 3rd respondent.

7. Though in the written statement, the 3rd respondent has taken a contention that there was no negligence on the part of the 2nd respondent/driver, no such contention was taken at the time of the argument. Immediately after the accident, the petitioner was taken to St.James hospital, Chalakudy where he was treated for a long period. Then he was shifted to Amritha Insitute of Medical Sciences and Research Centre, Edappally and underwent open reduction of dorsal spine and anterior and posterior fixation of C7-D1 vertebra. He underwent further treatment at Caritas hospital, Kottayam on 19.2.2007. On 9.3.2007 he was admitted at the Institute of Guttmann, Spain and underwent rehabilitation procedures. He was discharged on 30.6.2007 and again admitted  in a Rehabilitation Centre in Austria. Due to the severity of the spinal code injury sustained in the accident, now the petitioner is in Paraplegic stage.

8. The fact that the petitioner sustained serious spinal code injury resulting in Paraplegia is not in dispute. The petitioner was examined before the Tribunal through an Advocate Commissioner. After evaluating the evidence, the trial Court observed that the petitioner is totally bed-ridden. He needs the assistance of one or two bystanders. Catheter is being used for removing urine. Fecal matter is removed by manual evacuation. He needs two pairs of surgical gloves for evacuation of fecal matter. He requires lot of cotton and bandages and lotion to clean and dress the bed sores.

9. As per Ext.P9 disability certificate issued by PW2, the petitioner is in Paraplegia condition. PW2 assessed his physical disability as 80% and his loss of earning capacity as 100%. Even then, the Tribunal has taken only 70% disability for the purpose of computing loss of disability. Considering the fact that the petitioner is in Paraplegic condition, his functional disability is to be treated 100%. Therefore, for the purpose of computing the loss of disability, his functional disability is taken as 100%.

10. The petitioner claimed that he was working as Office Administrator in a private school at the time of the accident and getting a monthly salary of Rs.7000/-. The Tribunal fixed the notional income of the petitioner at Rs.4500/-. Relying upon Exts.A11 to A13, appointment orders and salary certificate the learned counsel for the petitioner would argue that if he was in service, his salary during January 2013 would have been Rs.16,940/-. As per Ext.A12 dated 8.1.2007, his initial appointment was on a monthly pay of Rs.7000/-. It is true that in Ext.A13 certificate dated 28.1.2013, the Principal SFS Public school, Ettumanoor, has stated that if the petitioner was in service, his salary during January 2013 would have been Rs.16,914/-. However, for the purpose of computing the disability, the income of the victim on the date of the accident is the relevant one, with which, admissible addition will be given towards future prospects. Therefore, the monthly income of the petitioner on the date of the accident on 16.1.2007 is fixed at Rs.7000/-.

11. On the date of the accident the petitioner was aged 31. Therefore, in the light of the decision of the Hon’ble Supreme Court in National Insurance Co.Ltd v Pranay Sethi, (2017) 16 SCC 680, 50% of his monthly income is liable to be added towards future prospects and the relevant multiplier to be applied is 16. Therefore, the compensation for disability will come to Rs.20,16,000/-.

12. Towards 'loss of earning', the Tribunal has awarded a sum of Rs.54,000/- being the monthly income of the petitioner for a period of 12 months. However, since the functional disability of the petitioner is taken as 100% further compensation on the head 'loss of earning’ is not called for. Therefore, Rs.54,000/- awarded on the head ‘loss of earning’ is to be deducted.

13. Towards ‘bystander expense’, the Tribunal has awarded Rs.3,00,000/-, towards pain and suffering’, Rs.50,000/-, towards ‘extra nourishment’ Rs.20,000/-, towards ‘loss of amenities’ Rs.40,000/- and towards ‘future nursing charges Rs.30,000/-. The learned counsel for the petitioner would argue that, since the petitioner had to lie on bed during the rest of his life, he requires the help of two bystanders for his daily necessities and that the compensation awarded on the above heads are too meagre.

14. In the decision in Kajal v. Jagdish Chand and Others AIR 2020 SC 776, in the case of 12 year old girl in paraplegic condition, the Apex Court has awarded the expense of two bystanders at the rate of Rs.5,000/- each, with multiplier of 18, amounting to Rs.21,60,000/-.

15. In the decision in Parminder Singh v. New India Assurance Company Ltd., AIR 2019 SC 3128 to a victim in a vegetative state requiring the help of a bystander throughout his life, the Hon’ble Supreme Court has awarded a lump-sum amount of Rs.10,00,000/- towards ‘future medical expense’ and ‘attendant' charges’.

16. In the case of Lalan.D @ Lal and another v. Oriental Insurance Co.Ltd, 2020 (9) SCC 805 even in a case where there was no proof regarding engagement of bystander by the victim, who is a teacher suffering from 100% disability, the Apex Court has awarded a lumpsum of amount of Rs.7,00,000/- towards ‘bystander expense’.

17. In the decision in Rushi v. Oriental Insurance Co. Ltd. and Ors. MANU/SC/1167/2024, in the case of a child less than 12 years, attendant charge at the rate of Rs.5,000/- with a multiplier of 15 was adopted, as in Kajal (supra) and a sum of Rs.9,00,000/- was awarded.

18. In the decision in Abhimanyu Partap Singh v. Namita Sekhon & Another, (2022) 8 SCC 489 in the case of a 5½ years old girl child in an accident that occurred in the year 1996, the Hon'ble Supreme Court has fixed the expense of a bystander at Rs.5,000/- relying upon Kajal (supra) and awarded Rs.21,60,000/- being the expense of two bystanders for a period of 18 years.

19. In the decision in Mubarak Vs. The Divisional Manager, The New India Assurance Co. Ltd, MANU/KE/4640/2024 in a case where the claimant was suffering from 100% permanent disability, lying in a vegetative state, relying upon the decision in Kajal (supra) awarded the compensation for 'bystander expense' at the rate of 5,000/- and a multiplier of 11 was adopted.

20. In another decision, a learned Single Judge of this Court in The Divisional Manager, Divisional Office, National Insurance Company Ltd. Vs. Geeja V. Chellappan MANU/KE/4385/2024 awarded ‘bystander expense’ at the rate of Rs.12,000/- per month, and a multiplier of 16 was applied and a total sum of Rs.23,04,000/- was awarded on the above head.

21. In the instant case, the petitioner was aged 31 and he became a priest just one week before the date of the accident, after passing graduation. When he was examined as PW1, he deposed that he could raise both hands. He also could see, hear and smell and there is no difficulty in speaking also. However, his body below neck is paralysed. Catheter is used for taking out urine and he needs the help of another for taking out the fecal matter. He also claimed that he has the assistance of two bystanders and towards the expense of bystanders, he had spent a sum of Rs.9,48,664/-, till the date of his examination on 9.2.2013. Though he claimed that he had spent a sum of Rs.5,00,000/- towards air ticket to have treatment from abroad, he could not produce documents in that respect. During the re-examination, he clarified that the names of his bystanders are one Jiten and one Rajan. The petitioner produced Ext.A22 payment voucher for Rs.9,48,664/-. Along with the appeal he had produced the statement of account issued from South Indian Bank Ltd. as Annexure-1, to substantiate his claim that he has been paying Rs.15,000/- to Jiten. He also produced two photographs as Annexure-2, to show his present condition. Annexure-1 is for the period from 1st April 2020 to 19.3.2024. From the said bank statement it can be seen that he has been regularly transferring Rs.15,000/- in favour of Jiten. Since Annexure-1 is only for the period from 1.4.2020 and the accident was on 16.1.2007, the learned counsel for the 3rd respondent strongly opposed the receipt of Annexure-1.

22. At the same time, the fact remains that since the petitioner is in paraplegic condition, he is unable to move and he needs the care, protection and assistance of another around the clock, for anything and everything, except for breathing. In other words, he needs help of others for cooking food, eating food, drinking water, taking bathe, changing dress, removing urine and fecal matter, washing cloths, cleaning the bed, etc. Therefore, he needs the help of a bystander, throughout the day, till the end of his life. It is humanly impossible for one bystander to work around the clock as above and hence he needs the care and expenses of two bystanders, as in the decision in Kajal (supra).

23. The condition of the petitioner herein is not in anyway better than that of Kajal (supra), except that the petitioner therein was a girl of 12 years. With regard to the requirement of two bystanders, the present case and Kajal (supra) are identical in nature. Therefore, I hold that, the petitioner herein is entitled to get the expenses required for engaging two bystanders. In Kajal (supra), the expense of a bystander was fixed by the Hon'ble Supreme Court at Rs.5,000/-, as the minimum wages of a skilled labourer in the State of Haryana was Rs.4,846/- per month during the year 2007. As far as the State of Kerala is concerned, the expense of a bystander to attend a patient like the present one will be much higher. Even as per the dictum laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance, (2011) 13 SCC 236 (DB), the notional income of a Coolie during the year 2007 will come to Rs.6,000/-. Only a skilled worker or nurse having experience in the field alone could attend a person in paraplegic condition. The petitioner could not produce any notification issued by the Government showing the minimum wages of a skilled worker in Kerala during 2007. Therefore, the notional income of a coolie during the year 2007 as per the decision in Ramachandrappa (supra) is fixed as the expense of a bystander during 2007. Accordingly, for engaging two bystanders, the petitioner is entitled to get a sum of Rs.12,000/- per month. Since the petitioner was aged 31 on the date of the accident, the multiplier to be applied is 16. Therefore, towards 'bystander expense' he is entitled to get a sum of Rs.23,04,000/- ( 12,000 x 12 x 16).

24. Towards 'pain and suffering' the Tribunal has awarded a meagre sum of Rs.50,000/-. In the decision in Kajal (supra) the Hon'ble Supreme Court has awarded a sum of Rs.15,00,000/- towards 'pain and suffering' and 'loss of amenities'. It is true that Kajal was a 12 year old girl lying in a similar condition. However, it is to be noted that the condition of the petitioner herein is worse than that of Kajal. In the decision in Benson George v. Reliance General Insurance Co.Ltd., and Ors., (2022) 13 SCC 142, for an eight year old child in coma stage who sustained grievous brain injuries in a motor vehicle accident that occurred on 1.1.2013, the Hon'ble Supreme Court awarded Rs.10,00,000/- on the head 'loss of amenities' and another Rs.10,00,000/- for 'pain and suffering'.

25. In the case of Kajal (supra) she was suffering from severe incontinence and severe hysteria and above all, she is living with the brain of a nine month old child. In the instant case, the petitioner being 31 year old who has the feelings of a person of his age with all his senses still working full swing, is very much aware of his pathetic condition. During every moment he will feel that he is living at the mercy of others. Though the physical sufferings of the petitioner can be compared to that of Kajal, his mental sufferings could not be compared to that of anyone else. Therefore, it can be seen that the pain and sufferings of the petitioner herein on account of injuries sustained in the accident is much more than Kajal (supra). In the above circumstances, though his pain and sufferings cannot be quantified in terms of money, I hold that towards 'pain and suffering' he is entitled to get a compensation of Rs.12,00,000/-. For the very same reasons, I hold that, towards 'loss of amenities' he is entitled to get a sum of Rs.5,00,000/-.

26. Towards 'extra nourishment', the Tribunal has awarded only Rs.20,000/-. Considering the nature of injuries sustained by the petitioner, the percentage of disability suffered by him and his pathetic paraplegic condition, I hold that the compensation awarded on the head 'extra nourishment' is on the lower side and hence it is enhanced to Rs.2,00000/-.

27. Considering the fact that the body of the petitioner below the neck is completely paralysed and he is in paraplegic condition, he requires frequent physiotherapy. Relying upon the decision in Abhimanyu Partap Singh (supra) the learned counsel prayed for awarding a reasonable amount towards the cost of physiotherapy. In the above decision, the Hon'ble Apex Court has awarded Rs.9,72,000/- towards the cost of physiotherapy at the rate of Rs.150/- per day with a multiplier of 18 (150x30x12x18). In this case, the petitioner has not raised any separate claim on the head physiotherapy. But claim is raised for future nursing expenses. Considering the fact that the petitioner is paralyzed below his neck and to avoid bedsore, he requires frequent physiotherapy and as such, a sum of Rs.3,00,000/- is awarded on that head.

28. From the evidence of the petitioner it is revealed that his urine is collected using catheter. However, his fecal matter is to be evacuated manually, for which at least a pair of surgical glouse and a considerable quantity of cotton, cleaning materials and room freshner will be required, every time he excretes. Diapers of good quality also will have to be used 24x7, life long. Tina pads will have to be used to control bedsores, in addition to bed sheets, quality rubber sheets etc. Therefore, huge amount will be required towards the cost of diaper, glouse, cotton, room freshener, cleaning materials, tina pad, bed sheet etc. Therefore, towards the expense of diaper/glouse/cleaning materials, tina pad etc, a sum of Rs.3,00,000/- is awarded.

29. The petitioner has produced medical bills for Rs.5,67,600/- before the Tribunal and the said amount was awarded by the Tribunal. Towards future medical expense, no amount is seen awarded by the Tribunal. Considering the nature of injuries sustained by the petitioner and his paraplegic condition and also the fact that he could not again approach the Court claiming additional compensation for medical expenses likely to be incurred in future, a reasonable amount is to be awarded towards 'future medical expense'. Considering the entire facts, I hold that a sum of Rs.5,00,000/- will be a reasonable compensation on the head 'future medical expense'. In the above circumstances, Rs.30,000/- awarded on the head 'future nursing charges' and Rs.3,00,000/- awarded towards 'bystander's expense' will be adjusted in the amounts awarded on the respective heads. Since the functional disability of the petitioner was fixed at 100%, further compensation for loss of earning is required and as such Rs.54,000/- awarded on that head will be deducted. Another Rs.5,00,000/- awarded for day to day maintenance expense will also be deducted.

30. The quantum of compensation awarded on other heads appears to be reasonable and hence no change is required for the same.

31. Therefore, the petitioner/appellant is entitled to get a total compensation of Rs.74,21,000/-, as modified and recalculated above and given in the table below, for easy reference.

32. In the result, this Appeal is allowed in part, and the 3rd respondent is directed to deposit a total compensation of Rs.74,21,000/- (Rupees seventy four lakhs twenty one thousand Only), less the amount already deposited, if any, along with interest as ordered by the Tribunal from the date of the petition till realisation, excluding interest for a period of 46 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today (interest for the enhanced amount is limited to 8%).

33. On depositing the aforesaid amount, the Tribunal shall decide whether the amount in full or part is to be disbursed to the petitioner or to be deposited in his name, after ascertaining his desire, excluding court fee payable, if any, without delay, as per rules.