Aboobacker Vazhathara Nikarthil Veettil v. Balakrishnan Thenathumpambil Veettil and The Managing Director KSRTC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941** ## **MACA.No.1916 OF 2007** **AGAINST THE AWARD IN OPMV 1491/2001 DATED 26-08-2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/S:** **ABOOBACKER VAZHATHARA NIKARTHIL VEETTIL, VADUTHALA DESOM,, AROOKUTTY VILLAGE, CHERTHALA.** **BY ADV. SRI.K.M.FIROZ** ## **RESPONDENT/S:** **1 BALAKRISHNAN THENATHUMPARAMBIL VEETTIL, KANJIRAMATTOM,, DESOM, AMBALLOOR VILLAGE, ERNAKULAM. 2 THE MANAGING DIRECTOR K.S.R.T.CORPORATION, THIRUVANANTHAPURAM. R1 BY SHRI.JOHNSON P.JOHN, SC, KSRTC R1 BY SRI.JOY GEORGE, SC, K.S.R.T.C. R2 BY SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No.1916 of 2007 ## **JUDGMENT** The appellant is the claimant in O.P.(M.V.) No.1491 of 2001 on the file of the Motor Accidents Claims Tribunal, Alapuzha, 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 26.06.1991, while he was travelling on a scooter. At the place of accident, the scooter was hit by a KSRTC bus bearing Registration No.KL-X/4305 driven by the 1[st] respondent and owned by 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 bus by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,50,000/- under various heads. 2. Before the Tribunal, though respondents 1 and 2 entered appearance, they did not file written statement. The appellant/claimant was examined as PW1 and Exts.A1 to A11 -3- MACA. No.1916 of 2007 were marked on his side. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the pleadings and materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of KSRTC bus by the 1[st] respondent driver and in such circumstances, respondents 1 and 2 are jointly and severally liable to pay compensation to the appellant/claimant. Under various heads, the Tribunal awarded a total compensation of Rs.66,000/-, together with interest at the rate of 7.5% per annum from the date of petition, that is, 16.10.2001 till realisation, with a cost of Rs.650/- and directed the 2[nd] respondent owner to satisfy the award. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 5. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for KSRTC for -4- MACA. No.1916 of 2007 the 2[nd] respondent. Service of notice on the 1[st] respondent was dispensed with by order dated 01.10.2019 in CM.Appl.No.1983 of 2007. 6. 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. 7. 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.1916 of 2007 source of profit; but the same should not be a pittance. 8. 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. 9. The compensation awarded by the Tribunal under various heads reads thus: |Compensation for loss of earning|-|Rs. 6,000/-| |---|---|---| |Cost of medicine and treatment charges|-|Rs. 7,650/-| |Bystander expenses|-|Rs. 2,000/-| MACA. No.1916 of 2007 -6- |Transportation charges<br>-<br>Extra nourishment<br>-<br>Damage to clothing<br>-<br>Compensation for pain and suffering<br>-<br>Compensation for loss of amenities<br>-<br>Compensation for permanent disability<br>and loss of earning power<br>-<br>-<br>**Total**<br>**-**|Rs. 1,000/-<br><br>Rs. 500/-<br><br>Rs. 250/-<br><br>Rs.15,000/-<br><br>Rs. 3,000/-<br><br>Rs.30,600/-<br>--------------------<br><br>**Rs.66,000/-**| |---|---| 10. The accident occurred on 26.06.1991 and at the time of accident the appellant was aged 34 years. He claimed a monthly income of Rs.2,000/- as a Supervisor in a peeling shed. No materials were placed on record to show the income of the appellant. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.1,500/- for the purpose of assessing compensation under various heads. 11. 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 -7- MACA. No.1916 of 2007 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. 12. 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.1916 of 2007 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. 13. In the absence of any reliable evidence, considering the economic conditions prevailing as on the date of accident, i.e., during the year 1991, and taking note of fixation of notional monthly income by the Apex Court in the decision referred to supra, the fixation of notional monthly income as Rs.1,500/- by the Tribunal cannot be said to be on -9- MACA. No.1916 of 2007 the lower side, warranting an interference by this Court in this appeal. 14. The document marked as Ext.A7 is the wound certificate and Ext.A8 is the treatment certificate, issued from Medical Trust hospital, Ernakulam. The injuries sustained by the appellant, as borne out from Exts.A7 and A8, are laceration 8 x 4 cms over left illiac crest with fracture, degolving injury to left upper thigh, adjacent groin and buttocks region, extensive abrasion on left knee, back of right thigh, both big toe, etc. As evident from Ext. A8 treatment certificate the appellant had undergone impatient treatment at Medical Trust hospital, Ernakulam, from 26.06.1991 till 29.07.1991. He had undergone debridment under general anesthesia, and devitalised skin excised and wounds drained. Skin grafting was done under general anestesia on 09.07.1999. The appellant, as PW1, deposed that he was completely bed ridden for one month and he could not move without help of others. He has also deposed that tube was -10- MACA. No.1916 of 2007 fitted for the outlet of urine and for his primary needs bedpan was used. There were bed sores on his body. Ext.A10 series of medical bills are for a sum of Rs.7,601.45/-. 15. In Ext.A9 disability certificate, issued by Dr.Jose Abraham, General Hospital, Ernakulam the permanent disability of the appellant, on account of the injury sustained in the accident, is assessed as 20%. Ext.A9 is not issued by a doctor who treated the appellant. Ext.A9 was also not proved by examining the doctor concerned. The Tribunal took percentage of permanent disability as 10% as for awarding compensation under the head disability compensation. As already noticed, the injuries sustained by the appellant are grave in nature. The appellant, who was examined as PW1 has deposed that, after the accident, he could not stand or walk for long time due to back pain. Considering the nature of injuries, as borne out from Exts.A7 and A8, the permanent disability of the appellant assessed in Ext.A9 disability certificate is taken as 15%, for the purpose of awarding -11- MACA. No.1916 of 2007 compensation under the head disability. 16. Towards compensation for loss of earning the Tribunal awarded a sum of Rs.6,000/- at the rate of Rs.1,500/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, which includes skin grafting, the period of 4 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. In the result, the compensation under the head loss of earning is re-fixed Rs.9,000/- (1,500 x 6) resulting an additional compensation of **Rs.3,000/-** (9,000 – 6,000). 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 38 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. 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 re- -12- MACA. No.1916 of 2007 fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 – 1,000). 18. Towards bystander expenses the Tribunal awarded a sum of Rs.2,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 1991 and the appellant had undergone inpatient treatment for 38 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.3,800/- (100 x 38), resulting an additional compensation of **Rs.1,800/-** (3,800 – 2,000). The compensation under the head extra nourishment is re-fixed as Rs.2,850/- (75 x 38), resulting an additional compensation of **Rs.2,350/-** (2,850 - 500). 19. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 1991, the compensation under this head is re-fixed as Rs.750/-, resulting an additional -13- MACA. No.1916 of 2007 compensation of **Rs.500/-** (750 – 250). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.7,650/-, covered by Ext.A10 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.15,000/-. As already noticed, as evident from Exts.A7 and A8, the injuries sustained by the appellant are grave in nature. 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 the head pain and suffering is re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.10,000/-** (25,000 – 15,000). 22. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its -14- MACA. No.1916 of 2007 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 61 to 65 years and multiplier of **5** for 66 to 70 years. ## 23. In **National Insurance Company Ltd. v. Pranay** -15- MACA. No.1916 of 2007 **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. 24. In the instant case, as on the date of accident, the appellant was aged 34 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 17 applied by the Tribunal is not correct and and the proper multiplier to be applied is **16** . 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.30,600/- (1,500 x 12 x 17 x 10/100). Since the monthly income of the appellant is fixed notionally as Rs1,500/-, applying the multiplier of 16 applicable to the age group of the appellant and the percentage of permanent disability re-fixed in this appeal as 15%, the compensation under the head permanent disability -16- MACA. No.1916 of 2007 is re-fixed as Rs.43,200/- (1,500 x 12 x 16 x 15/100), resulting an additional compensation of **Rs.12,600/-** (43,200 – 30,600). 26. Towards loss of amenities the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries sustained and the permanent disability that had arisen out of those injuries, noticed in Ext.A9 disability certificate, which is re-fixed in this appeal as 15%, the compensation awarded by the Tribunal under this head is re-fixed as Rs. 15,000/-, resulting an additional compensation of **Rs.12,000/-** (15,000 – 3,000). 27. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.30,750/-** (Rupees thirty thousand seven hundred and fifty only) [3,000 + 500 + 1,800 + 2,350 + 500 + 10,000 + 12,600] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] respondent/insurer shall satisfy the additional compensation -17- MACA. No.1916 of 2007 granted in this appeal, together with interest, excluding the period of delay of 262 days in filing this appeal, which was condoned by order dated 01.10.2019 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, 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. The disbursement of the amount to the appellant shall be in terms of 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**