Abilash v. Reliance General Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019/3RD ASWINA, 1941** ## **MACA.No.3798 OF 2019** **AGAINST THE AWARD IN OP(MV)No.402/2015 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,PERUMBAVOOR** ## **APPELLANT/PETITIONER:** **ABILASH AGED 29 YEARS S/O. SIVAN, ALUNGAL HOUSE, ALUNGAL COLONY, SOUTH VAZHAKULAM P. O.** **BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENT/3rd RESPONDENT:** **RELIANCE GENERAL INSURANCE COMPANY LTD. 1ST FLOOR, KANNANETHU ESTATE, RING ROAD PATHANAMTHITTA - 689 645** **SMT K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.3798/2019 -2- ## **JUDGMENT** Appellant is the claimant in O.P.(MV)No.402 of 2015 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, (claiming a total compensation of Rs.34,00,000/under various heads, which was limited to Rs.10,00,000/- for the purpose of payment of court fee), for the injuries sustained by him in a motor accident, which occurred on 06.01.2015, while he was travelling as a pillion rider in a motorcycle bearing registration No.KL-40/K-3910, owned by the 1[st] respondent and ridden by the 2[nd] respondent before the Tribunal and insured with the respondent herein. At the place of accident, due to rash and negligent riding of motorcycle by the 2[nd] respondent, it skidded and the appellant was thrown out, resulting injuries. 2. Before the Tribunal, the 1st respondent owner and the 2nd respondent rider of the offending motorcycle remained absent and they were set ex parte. The insurer of the vehicle, the respondent herein, filed written statement admitting the insurance coverage of the offending vehicle, but denying MACA No.3798/2019 -3- rashness and negligence alleged against the rider. The insurer has also denied the claims made by the appellant/claimant under various heads. 3. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellant/claimant. The claimant himself was examined as PW1. On the side of the respondent, Ext.B1 certificate of insurance of the offending vehicle was marked. 4. 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 motorcycle by its rider. Since the insurance coverage of the offending vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.5,19,235/- and the respondent insurer was directed to satisfy the award together with interest at the rate of 8% per annum from the date of petition till realisation with proportionate costs. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. MACA No.3798/2019 -4- 6. Heard learned counsel for the appellant and Smt.K.S.Santhi, learned Standing Counsel for the respondent insurer. 7. 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. 8. 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 source of profit; but the same should not be a pittance. 9. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex MACA No.3798/2019 -5- 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. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.No.|Head of claim<br>Compensation for|Account<br>claimed<br>(in<br>rupees)|Amount<br>awarded| |---|---|---|---| |1.|Loss of earnings|500000|48000| |2.|Partial loss of earnings|150000|NIL| |3.|Transport to hospital|100000|5000| |4.|Extra nourishment|100000|2000| |5.|Medical expenses|300000|20195| |6.|Pain & suffering|300000|70000| |7.|Loss of amenities, etc.|400000|60000| |8.|Permanent disability|800000|311040| |9.|Attendance charge|200000|2000| MACA No.3798/2019 -6- |10.|Damage to clothes, etc.|50000|1000| |---|---|---|---| |11.|Future prospects|300000|NIL| |12.|Disfiguration, etc.|100000|NIL| |13.|Loss of earning power|100000|NIL| ||Total|34,00,000/-<br>Limited<br>to<br>10,00,000/-|519,235/-| 11. The accident occurred on 06.01.2015. At the time of accident, the appellant was aged 25 years. He claimed a monthly income of Rs.25,000/- as Welder. However, no materials are placed on record to prove his income. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income of the appellant notionally as Rs.8,000/for the purpose of assessing compensation under various heads. 12. 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 MACA No.3798/2019 -7- 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. 13. 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 MACA No.3798/2019 -8- 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. 14. In the absence of any reliable materials, considering the economic conditions prevailing at the time of accident, i.e., during the year 2015 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 refix the monthly income of the appellant notionally as Rs.10,000/-, for the purpose of assessing compensation under different heads. 15. Ext.A5 is the wound certificate issued from the Little Flower Hospital, Angamaly, which would show that the appellant was admitted in the hospital on 06.01.2015 with fracture left frontal bone along with multiple lacerations over face, left knee and left frontal scalp. Ext.A6 is the discharge certificate, wherein it has been stated that he was again admitted to the hospital on MACA No.3798/2019 -9- 08.01.2015 and was discharged on 12.01.2015. Ext.A8 is the discharge summary issued from the Little Flower Hospital, wherein it has been stated that the appellant has traumatic optic neuropathy to left eye and had defective vision following the accident. Ext.A7 is the treatment certificate issued from Sanjoe Hospital, Perumbavoor which would show that the appellant sustained deep lacerated wound left knee; lacerated wound left frontal scalp; traumatic optic retinopathy; and fracture left frontal bone. As per Ext.A7, he was admitted in the hospital on 06.01.2015 and after first aid he was referred to Ophthalmic centre on 08.01.2015 for detailed opthalmic assessment and treatment. The document marked as Ext.A9 is medical bills for Rs.20,195/-. 16. In order to prove permanent disability that had resulted on account of the injuries sustained in the accident, the appellant placed reliance on Ext.A11 disability certificate, which is one issued by Dr.Thomas Cherian of Little Flower Hospital, Angamaly, in which the percentage of disability is assessed as 20%. The appellant has not chosen to prove Ext.A11, which was marked subject to objection, by examining the doctor. When the MACA No.3798/2019 -10- assessment of disability in Ext.A11 is not by a duly constituted Medical Board on reference by the Tribunal, the Tribunal thought it fit to take the percentage of disability as 18% for the purpose of awarding compensation under various heads. The procedure adopted by the Tribunal in this regard cannot be said to be arbitrary or illegal. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.48,000/-, at the rate of Rs.8000/- for a period of six months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of six months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.10,000/-, the compensation under the head loss of earning is re-fixed as Rs.60,000/- (10,000x6), resulting an additional compensation of **Rs.12,000/-** (60,000-48,000). 18. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. Towards attendance charges the Tribunal awarded a sum of Rs.2,000/- at MACA No.3798/2019 -11- the rate of Rs.500/- for four days of inpatient treatment. 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. 19. Towards damage to clothing the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2015, the compensation under this head is refixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1500-1000). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.20,195/- covered by Ext.A9 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. 21. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.70,000/-. Considering the nature of injuries sustained, the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by MACA No.3798/2019 -12- the Tribunal under this head cannot be said to be one on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 22. Towards loss of amenities, the Tribunal awarded a sum of Rs.60,000/-. Considering the nature of injuries sustained by the appellant and the permanent disability of 18% on account of the injuries sustained in the accident, 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. 23. 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 MACA No.3798/2019 -13- 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. 24. 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. 25. 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 **18** applied by the Tribunal is correct and proper. 26. Towards compensation for permanent disability, the MACA No.3798/2019 -14- Tribunal awarded a sum of Rs.3,11,040/-(8000x12x18x18/100). Since the monthly income of the appellant is re-fixed notionally as Rs.10,000/-, the compensation under this head is re-fixed as Rs.3,88,800/- (10,000x12x18x18/100) resulting an additional compensation of **Rs.77,760/-** (i.e.,3,88,800 - 3,11,040). 27. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.90,260/-** (Ninety Thousand Two Hundred and Sixty only) [12,000+500+77,760] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 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. The appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** dsn