ABRAHAM C.J. @ JOY S/O JOSEPH v. DIVAKR VIPESH BALAKKANDY; K.V. GOPALAKRISHNAN; THE ORIENTAL INSURANCE CO. LTD.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941** ## **MACA.No.103 OF 2011** **AGAINST THE AWARD IN OPMV 1577/2003 OF ADDITIONAL DISTRICT COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,THALASSERY** ## **APPELLANT/S:** **ABRAHAM C.J @ JOY S/O.JOSEPH, AGED 58 YEARS,, CHERUPARAMBIL HOUSE, VELLARVALLY POST,, PERAVOOR VIA, TATTIYAD, KANNUR DISTRICT.** **BY ADVS. SRI.K.V.PAVITHRAN SRI.ANIL.D.KAITHAKKAL SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL** ## **RESPONDENT/S:** **1 DIVAKR VIPESH BALAKKANDY HOUSE, P.O.IRITTY, KANNUR, DISTRICT, KERALA. 2 K.V.GOPALAKRISHNAN S/O.KUNHIRAMAN NAMBIAR, KADANGOTHU VEEDU,, PADIYOOR AMSOM, KAYILOOR DESOM,, P.O.KAYILOOR. 3 THE ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, KANNUR.** **R1, R3 BY ADV. SRI.S.K.AJAY KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA No. 103 of 2011 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1577 of 2003 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 him in a motor accident, which occurred on 19.03.2003, while he was riding a motorcycle bearing registration No.KL-13/9573. At the place of accident, the motorcycle was hit by a bus bearing registration No.KL13/F-9171, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of bus by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/-, under various heads, which was enhanced by way of amendment to Rs.10,27,180/-. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. The 3[rd] respondent insurer -3- MACA No. 103 of 2011 filed written statement admitting insurance coverage of the bus involved in the accident; however, denying the negligence alleged against the 2[nd] respondent driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A13 were marked on the side of the appellant/claimant, and the appellant was examined as PW1. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. The document marked as Ext.X1 is the disability certificate and Exts. X2 to X9 are the case sheets from Kasturba Hospital, Manipal. 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 driving of the bus by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal -4- MACA No. 103 of 2011 awarded a total compensation of Rs.5,17,000/-, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 16.12.2003, till realisation, with proportionate cost, and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] 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 -5- MACA No. 103 of 2011 '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 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 -6- MACA No. 103 of 2011 ## principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>N<br>o.|Head of Claim|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earnings|54000|17500|2,500x7 months| |2|Transport to hospital|23680|15000|Bills<br>for<br>Rs.23680/-<br>produced,<br>not<br>proved| |3|Extra nourishment|2000|2000|| |4|Bystanders expenses||21100|211 days x 100<br>per day| |5|Medical expenses|350000|272000|Bills<br>for<br>Rs.2,71,662/-<br>produced| |6|Pain and sufferings|200000|15000|| |7|Permanent disability|396000|165000|2,500 x 12x 11x<br>50%| |8|Loss of amenities||10000|| |9|Partial loss of earnings|1000||| |10|Damage to clothing|500||| ||**Total**|**1027180**|**517600**|| 11. The accident occurred on 19.03.2003. At the time of accident, the appellant was aged 51 years. The appellant claimed a monthly income of Rs.6,000/- as Private Surveyor and Agriculturist. The document marked as Ext.A12 is the Surveyor Certificate. The appellant was examined as PW1. No -7- MACA No. 103 of 2011 reliable materials were produced before the Tribunal to prove the monthly income of the appellant. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,500/-, 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 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 -8- MACA No. 103 of 2011 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 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 -9- MACA No. 103 of 2011 vegetable vendor is reasonably capable of earning 6,500/- per month. 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2003 and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, and taking note of the oral testimony of the appellant as PW1 and Ext.A12 certificate, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.4,500/-, for the purpose of assessing compensation under various heads. 15. The document marked as Exts.A3, A5 series, A10 and A11 are discharge summaries. Ext.A6 is a medical certificate showing the injuries sustained by the appellant and Ext.A7 is the certificate to the effect that the appellant was referred to speech and hearing department. Ext.A9 is an audiological evaluation report. As per medical records, the appellant sustained diffuse swelling over dorsum of right hand, 0.5x0.5 cm punctured wound over PIP joint of right ring -10- MACA No. 103 of 2011 finger, 0.5x0.5 cm abrasion over dorsum of base of 2[nd] metacarpal of right hand, fracture base of 2[nd] metacarpal, 20x10x3cm irregular laceration over the anterior aspect of middle third of right leg exposing injured muscles, tendons and fractured bone, anterior tibial vessels and nerves were injured, 5x3x2 cm lacerated wound over anterior aspect of right knee exposing the retinacula, 6x1x1 cm v shaped lacerated wound over the dorsolateral aspect of right foot exposing tendons, 1x1x0.5 cm lacerated wound over the medial aspect of PIP joint of right 5[th] toe with proximal phalanx exposed, right intertrochanteric fracture with ipsilateral fracture shaft of femur, comminuted fracture middle third right tibia with tibial condyle, segmental fracture right fibula, dislocation of PIP joint of 5[th] toe, fracture base of 3[rd] and 5[th] matatarsals, fracture cuboid bone right foot, fracture medial malleolus right side, laceration 2x1x6 cm just below and lateral to lateral canthus of left eye, 2x3 cm abrasion just above left supraorbital ridge. The appellant had undergone various course/type of treatment in a phased manner. He had -11- MACA No. 103 of 2011 undergone a total of 211 days inpatient treatment. Ext.A13 series are medical bills for a sum of Rs.2,95,342/- including bills towards transportation amounting to Rs.23,680/-. 16. In Ext.X1 disability certificate, the Medical Board, District Hospital, Kannur assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 50%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.17,500/-, at the rate of Rs.2,500/- for a period of 7 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 7 months fixed by the Tribunal for granting loss of earning is re-fixed as 12 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,500/-, the compensation under the head loss of earning is re-fixed as Rs.54,000/- (4,500 x 12), resulting an additional compensation of **Rs.36,500/-** . (54,000 – 17,500). MACA No. 103 of 2011 -12- 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 211 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs15,000/-. 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.21,100/- (100 x 211). Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2003 and the appellant had undergone inpatient treatment for 211 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 refixed as Rs.31,650/- (150 x 211), resulting an additional compensation of **Rs.10,550/-** (31,650 – 21,100). The MACA No. 103 of 2011 -13- compensation under the head extra nourishment is re-fixed as Rs.21,100/- (100 x 211), resulting an additional compensation of **Rs.19,100/-** (21,100 – 2,000). 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2003, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 – 500). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.2,72,000/-, covered by Ext.A13 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. 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 the head pain -14- MACA No. 103 of 2011 and suffering is re-fixed as Rs.30,000/-, resulting an additional compensation of **Rs.20,000/-** (30,000 – 10,000). 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 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 -15- MACA No. 103 of 2011 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 51 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 **11** applied by the Tribunal is correct and proper. 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,65,000/- (2,500 x 12 x 11 x 50/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,500/-, applying the multiplier of 11 applicable to the age group of the appellant and the -16- MACA No. 103 of 2011 percentage of permanent disability as 50%, the compensation under the head permanent disability is re-fixed as Rs.2,97,000/- (4,500 x 12 x 11 x 50/100), resulting an additional compensation of **Rs.1,32,000/-** (2,97,000 – 1,65,000). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. In Ext.X1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 50%. Considering the nature of injuries sustained and the permanent disability that has been assessed in Ext.X1 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.50,000/-, resulting an additional compensation of **Rs.40,000/-** (50,000 – 10,000). 28. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.2,58,400/-** (Rupees two lakh fifty eight thousand four hundred only) [36,500 + 10,550 + 19,100 + 250 + 20,000 + 1,32,000 + -17- MACA No. 103 of 2011 40,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. 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. The disbursement of the amount to the appellant/claimant shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. **Sd/ANIL K.NARENDRAN JUDGE** das