Abdul Salam v Rajeevan and The Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941** ## **MACA.No.3660 OF 2019** **AGAINST THE AWARD IN OP(MV)No.587/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT:** **ABDUL SALAM, AGED 65 YEARS S/O. ABDULLA HAJI, RESIDING AT KUNIYIL HOUSE, THIKKODY P.O., PALLIKKARA VIA, KOZHIKODE,PIN-673 529** ## **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENTS:** **1 RAJEEVAN, AGED 59 YEARS S/O. BALAN RESIDING AT MANNATH KUNIYIL HOUSE, NEAR KODIYERI CO-OPERATIVE BANK, PAREMMAL, P.O.PARAL, THALASSERY, KANNUR-670 671 2 THE ORIENTAL INSURANCE CO.LTD., OPP.LIBERTY PARADISE, AVK NAIR ROAD, THALASSERY, KANNUR-670 101** **R2 BY ADV. RADHAKRISHNAN K.R.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 3660 of 2019 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.587 of 2014 on the file of the Motor Accidents Claims Tribunal, Vatakara, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 22.04.2014, while he was walking through the side of a National Highway. At the place of accident, he was knockdown by a car bearing registration No.KL-58/H-4109, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.8,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent did not file any written statement. 3. The 2[nd] respondent/insurer filed written statement admitting the insurance coverage of the offending vehicle; however, denying the negligence alleged against the 1[st] -3- MACA. No. 3660 of 2019 respondent. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 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 riding of the offending car by the 1[st] respondent driver. Since 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.3,38,000/-, and the insurer was directed to satisfy the award, together with interest at the rate of 9% per annum from the date of petition till date of deposit, 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/ -4- MACA. No. 3660 of 2019 claimant and also the learned Standing Counsel for the 2[nd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent owner-cum-driver was dispensed with, by the order of this Court dated 01.10.2019. 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 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 -5- MACA. No. 3660 of 2019 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 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; ||The<br>compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning from<br>22.04.2014 to till this<br>date|75,000/-|40,000/-|5000x8 months| |2|Transport to hospital|15,000/-|5,000/-|| -6- MACA. No. 3660 of 2019 |3|Extra nourishment ,<br>bystander's expenses &<br>attendance at home|60,000/-|7,400/-|| |---|---|---|---|---| |4|Medical expenses|25,000/-|8,342/-|| |5|Damage to clothing<br>and articles|2,000/-|1,000/-|| |6|Pain and suffering|1,00,000/-|75,000/-|| |7|Loss of amenities and<br>enjoyment of life|20,000/-|40,000/-|| |8|Future treatment|1,00,000/-|Nil|| |9|Permanent disability|4,00,000/-|1,62,000/-|| |10|Loss of earning power|1,00,000/-|Nil|| ||Total<br>Limited to|1,27,000/-<br>60,000**/-**|**3,38,742/**<br>**-**|Rounded to<br>**Rs.3,38,800/-**| 12. The accident occurred on 22.04.2014. At the time of accident, the appellant was aged 60 years. He claimed a monthly income of Rs.15,000/- as a hotel worker. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not chosen to mount the box. In the absence of any reliable materials, 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 -7- MACA. No. 3660 of 2019 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 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)** , -8- MACA. No. 3660 of 2019 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 2014, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.9,500/-, for the purpose of assessing compensation under various heads. -9- MACA. No. 3660 of 2019 16. The document marked as Ext.A2 is the discharge certificate and Ext.A6 is the reference Card. Ext.A7 series are CT Scan reports, Ext.A8 is abdomen USG report, and Ext.A9 series are doctors prescriptions. These documents are issued from Medical College Hospital, Kozhikode, District Hospital, Vatakara and Taluk Head Quarters Hospital, Koyilandy. Ext.A10 medical report is issued from Comtrust Charitable Trust Eye Hospital, Puthiyara, Kozhikode and A11 series are prescriptions issued by various doctors. As per medical records, the appellant sustained blunt chest trauma, fracture left zygoma arch, fracture orbit, fracture left 1-10 ribs, fracture of medical & lateral wall of left orbit, posterior wall of frontal sinus extending to left orbital roof, multiple abrasion over left side of forehead, face and nose. He had undergone inpatient treatment for a period of 8 days from 22.4.2014 to 29.04.2014 at the Medical College Hospital. Ext.A9 series of OP cards would show that he had undergone medical reviews at different hospitals. Ext.A12 series of medical bills are for a sum of Rs.8,342/-. 17. In Ext.C1 disability certificate, the Medical Board -10- MACA. No. 3660 of 2019 assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 30%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.40,000/-, at the rate of Rs.5,000/- per month for a period of 8 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 8 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is refixed notionally as Rs.9,500/-, the compensation under the head loss of earning is re-fixed as Rs.76,000/- (9,500 x 8), resulting an additional compensation of **Rs.36,000/-** (76,000 – 40,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 8 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. Though the inpatient treatment -11- MACA. No. 3660 of 2019 is only for a period of 8 days, medical records would show that he had attended reviews at various hospitals. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.7,000/-, resulting an additional compensation of Rs. **2,000** /- (7,000 – 5,000) under this head. 20. Towards extra nourishment and bystander expenses, the Tribunal awarded a sum of Rs.7,400/-. The accident is of the year 2014 and the appellant had undergone inpatient treatment for 8 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.1,000/-. Considering the fact that the accident is of the year 2014, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional -12- MACA. No. 3660 of 2019 compensation of **Rs.500/-** .(1,500 – 1,000) 22. Towards medical expenses, the Tribunal awarded a sum of Rs.8,342/-, covered by Ext.A12 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.75,000/-. 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 is on the higher side, which is scaled down to Rs.50,000/-, resulting an **excess payment** at **Rs.25,000/-** (75,000 – 50,000), which has to be deducted from the additional compensation granted in this appeal. 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]** , -13- MACA. No. 3660 of 2019 **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 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 -14- MACA. No. 3660 of 2019 paragraph 42 of the said judgment. 26. In the instant case, as on the date of accident, the appellant was aged 60 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 **9** applied by the Tribunal is correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,62,000/-(5,000 x 12 x 9 x 30/100). Since the monthly income of the appellant is re-fixed notionally as Rs.9,500/-, applying the multiple of 9 applicable to the age group of the appellant and the percentage of permanent disability as 30%, the compensation under the head permanent disability is re-fixed as Rs.3,07,800/- (9,500 x 12 x 9 x 30/100), resulting an additional compensation of **Rs.1,45,800/-** (3,07,800 – 1,62,000) under this head. 28. Towards loss of amenities the Tribunal awarded a sum of Rs.40,000/-. In Ext.C1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 30%. -15- MACA. No. 3660 of 2019 Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.C1 disability certificate, the compensation awarded by the Tribunal under this head cannot also be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,59,300/-** (Rupees one lakh fifty nine thousand three hundred only) [(36,000 + 2,000 + 500 + 1,45,800) – 25,000] 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 342 days in filing the appeal, which was condoned as per order dated 01.10.2019 in CM.Appln. No.1 of 2019, subject to the condition 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 2[nd] 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 -16- MACA. No. 3660 of 2019 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** das