A. Nikhil v. Sreeleesh C. and ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941** ## **MACA.No.3863 OF 2019** **AGAINST THE AWARD IN OPMV 500/2011 DATED 12-10-2017 OF ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANT :** **A.NIKHIL AGED 33 YEARS S/O. PREMANANTHAN, SAIRA NIVAS, P.O.PALAYAD, DHARMADAM, THALASSERY TALUK, KANNUR** **BY ADVS. SRI.ZUBAIR PULIKKOOL SRI.P.S.BINU** ## **RESPONDENTS:** **1 SREELESH.C, AGED 33 YEARS S/O. SREEDHARA KURUP, MALAYIL, KARUVANNUR.P.O., KOYILANDI TALUK, PIN - 673 614 2 K.P. RAMESH KUMAR S/O. GOVINDAN NAMBIAR, AGE UNKNOWN, MANAGING PARTNER, M/S. MC LAKSHMANAN AND CO, HOSPITAL ROAD, THALASSERY, KANNUR DISTRICT, PIN - 670 101** **3 UNITED INDIA INSURANCE COMPANY LIMITED PB NO. 52, FORT ROAD, KANNUR, PIN - 670 001 R3 BY ADV. SRI.AGINOV MATHAPPAN R3 BY ADV. SMT.K.SHERIN MOHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3863 OF 2019** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.500 of 2011 on the file of the Additional Motor Accidents Claims Tribunal, Thalassery, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident, which occurred on 22.05.2008, while he was riding a motorcycle bearing registration No.KL-58/A1691. At the place of accident, the said motorcycle was hit by a car bearing registration No.KL-58/A-1818 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.11,13,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent driver remained absent and he was set ex-parte. The 2[nd] respondent owner contended that the accident occurred due to the rash and negligent riding of the motorcycle by the **MACA.No.3863 OF 2019** **3** claimant himself. 3. The 3[rd] respondent/insurer filed written statement admitting the insurance coverage of the offending car involved in the accident; however, contending that the accident occurred due to the rash and negligent driving of the claimant himself. It was also contended that the compensation claimed is on the higher side. 4. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant and the claimant himself was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. The document marked as Ext.X1 is the disability certificate issued from Cooperative Hospital, Pariyaram and Ext.X2 is the disability certificate issued by the Medical College Hospital, Thiruvananthapuram assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the motor accident. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the offending car by the 1[st] respondent driver. Since the **MACA.No.3863 OF 2019** **4** insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.3,66,350/-, and the insurer was directed to satisfy the award, together with interest at the rate of 9% per annum from the date of petition, i.e., 01.06.2011 till realisation, with proportionate cost. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 dispensed with. 8. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads. 9. In **State of Haryana v. Jasbir Kaur [(2003) 7** **SCC 484]** the Apex Court held that the Tribunal under **MACA.No.3863 OF 2019** **5** Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. ## 10. In **National Insurance Company Ltd. v. Pranay** **Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual **MACA.No.3863 OF 2019** **6** case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||Head of claim|Amount<br>claimed<br>(Rs.)|Amount<br>Awarded<br>(Rs.)|Basis-vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|--|10,000/-|5000x2| |2|Partial loss of earning|--||| |3|Transport to hospital|30,000/-|10,000/-|| |4|Damage to clothing &<br>articles|28,000/-|3,000/-|| |5|Extra nourishment|5,000/-|3,000/-|| |6|Bystander's expense||4,200/-|300x14| |7|Medical expense|2,00,000/-|1,43,150/-|| |8|Pain and sufferings|50,000/-|50,000/-|| |9|Compensation<br>for<br>permanent disability|5,00,000/-|1,28,000/-|| |10|Loss of amenities||15,000/-|| |11|Loss of earning power|3,00,000/-|--|| ||**Total**|**11,13,000/- **|**3,66,350/-**|| 12. The accident occurred on 22.05.2008. At the time of accident, the appellant was aged 25 years. The appellant claimed a monthly income of Rs.7,200/- as an Engineer. Though the appellant/claimant was examined as PW1, no materials were produced before the Tribunal to prove his monthly income. In the absence of any reliable materials, **MACA.No.3863 OF 2019** **==> picture [8 x 9] intentionally omitted <==** the Tribunal fixed the monthly income notionally as Rs.5,000/-, for the purpose of assessing compensation under various heads. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to **MACA.No.3863 OF 2019** **8** some guess work, which may include the ground realities prevailing at the relevant point of time. 14. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2008, and taking note of the fixation of notional monthly income by the Apex Court in the **MACA.No.3863 OF 2019** **9** decisions referred to supra, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.6,500/-, for the purpose of assessing compensation under various heads. 16. The injuries noted in Ext.A2 wound certificate are bleeding from upper chin, broken teeth, abrasion on chin and contusion upper lip deformity (Rt) thigh. The appellant had undergone inpatient treatment for a period of 14 days. Ext.A3 discharge summary issued from Thalassery Cooperative Hospital noted intertrochonteric fracture of (Rt) femur and fracture of shaft of femur (Rt). Ext.A6 is the medical bills for a sum of Rs.1,43,150/-. 17. Ext.X1 is the disability certificate issued from Cooperative Hospital, Pariyaram. Ext.X2 is the disability certificate issued from the Medical College Hospital, Thiruvananthapuram. Based on Exts.X1 and X2 disability certificates, the Tribunal took the permanent disability of the appellant as 17.85%, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded Rs.10,000/-, at the rate of Rs.5,000/- for a period of two **MACA.No.3863 OF 2019** **10** months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period for grant of loss of earning can be re-fixed as 4 months. Since the notional monthly income of the appellant is re-fixed as Rs.6,500/-, the compensation under this head is re-fixed as Rs.26,000/- (6,500 x 4), resulting an additional compensation of **Rs.16,000/-** (26,000 – 10,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 14 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 20. Towards bystander expenses the Tribunal awarded a sum of Rs.4,200/- (300 x 4). Towards extra nourishment, the Tribunal awarded a further sum of Rs.3,000/-. The accident is of the year 2008 and the **MACA.No.3863 OF 2019** **11** appellant had undergone inpatient treatment for 14 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.3,000/-. Considering the fact that the accident is of the year 2008, the compensation under this head cannot be said to be on the lower side. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.1,43,150/-, covered by Ext.A6 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.50,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the **MACA.No.3863 OF 2019** **12** compensation awarded by the Tribunal under the head pain and suffering is scaled down to Rs.30,000/-, resulting an excess payment of **Rs.20,000/-** under this head. 24. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier decisions in **Kerala State Road Transport Corporation v. Susamma Thomas [(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720]** held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying **Susamma Thomas** , **Trilok Chandra** and **Charlie** ], which starts with an operative multiplier of **18** [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of **17** for 26 to 30 years, multiplier of **16** for 31 to 35 years, multiplier of **15** for 36 to 40 years, multiplier of **14** for 41 to 45 years, and multiplier of **13** for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of **11** for 51 to 55 years, multiplier of **9** for 56 to 60 years, multiplier of **7** for **MACA.No.3863 OF 2019** **13** 61 to 65 years and multiplier of **5** for 66 to 70 years. 25. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 26. In the instant case, as on the date of accident, the appellant was aged 25 years. In the light of the decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the multiplier of 12 applied by the Tribunal is not correct and and the proper multiplier to be applied is **18** . 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,28,000/- (5,000 x 12 x 12 x 17.85/100). Since the monthly income of the appellant is re-fixed notionally as Rs.6,500/-, applying the proper multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 17.85%, the compensation under the head permanent disability is re- **MACA.No.3863 OF 2019** **14** fixed as Rs.2,50,614/- (6,500 x 12 x 18 x 17.85/100), resulting an additional compensation of **Rs.1,22,614/-** (2,50,614 – 1,28,000) under this head. 28. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. In Exts.X1 and Ext.X2 disability certificates, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 17.85% . Considering the nature of injuries sustained and the permanent disability that has been certified in Exts.X1 and X2 disability certificates, the compensation awarded by the Tribunal under this head is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.5,000/-** (20,000 – 15,000) under this head. 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,23,614/-** (Rupees One lakh twenty three thousand six hundred and fourteen only) [(16,000 + 1,22,614 + 5,000) – 20,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation excluding the period of delay of 574 days, which was condoned vide order dated 16.10.2019 in C.M.Appln.No.1 of 2019, on condition **MACA.No.3863 OF 2019** **15** that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said amount for the period of delay. The 3[rd] respondent/insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant as per the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/6/11