Adhamsha v. United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** ## **MACA.No.3742 OF 2019** **AGAINST THE AWARD DATED 21-03-2019 IN OPMV 749/2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA** ## **APPELLANT/PETITIONER:** **ADHAMSHA AGED 20 YEARS S/O AKBAR ALI,24-A, RAMASWAMI NAGAR,UDUMALAPETTAI,TIRUPPUR, TAMIL NADU-642 126.** **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENT/3RD RESPONDENT:** **M/S. UNITED INDIA INSURANCE CO.LTD M.O.OFFICE,6/421,N3 KUNHIPALLY, PUZHATHI,KANNUR-670005.** ## **BY SRI P.K.MANOJ KUMAR, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3742 OF 2019** 2 ## **JUDGMENT** Appellant is the claimant in O.P.(MV) No.749 of 2017 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 in a motor accident, which occurred on 27.2.2017, while he was riding a motorcycle bearing registration No.TN-78/T-2844. At the place of accident, the motorcycle was hit by a bus bearing registration No.KL-58/K-2221, owned by the 1[st] respondent and driven by the 2[nd] respondent before the Tribunal, and insured with the respondent herein. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the offending bus by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.10 lakhs under various heads. 2. Before the Tribunal, the owner of the offending bus remained absent and he was set ex-parte. Though the driver of the said vehicle entered appearance, he did not file written statement. The insurer filed a written statement admitting the insurance coverage of the offending bus; however denying the negligence alleged against the driver. The insurer has also disputed the age, **MACA.No.3742 OF 2019** 3 occupation and monthly income of the appellant. It was contended that the compensation claimed by the appellant/claimant under various heads is on the higher side. 3. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant. Disability certificate issued by the Medical Board at the District Hospital, Vatakara was marked as Ext.C1. The respondents have not chosen to adduce any oral or documentary evidence. 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 offending bus by its driver and in such circumstances, the respondent insurer is liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.6,08,245/- together with interest at the rate of 8% per annum from the date of petition till realisation and directed the respondent insurer to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, 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 appearing for the respondent **MACA.No.3742 OF 2019** 4 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 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 **MACA.No.3742 OF 2019** 5 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.<br>No.|The<br>compensation<br>claimed under different<br>heads|Amount<br>claimed|Amount<br>allowed|Basis-vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning from<br>27.2.2017|1,00,000/-|51,000/-|8,500x6 months| |2|Transport to hospital|25,000/-|7,500/-|| |3|Extra nourishment &<br>bystander's expenses|1,00,000/-|14,400/-|| |4|Medical expenses|2,00,000/-|2,40,745/-|| |5|Damage to clothing and<br>articles|3,000/-|1,000/-|| |6|Pain & suffering|1,00,000/-|60,000/-|| |7|Loss of amenities and<br>enjoyment in life|5,00,000/-|50,000/-|| |8|Future treatment|1,00,000/-|Nil|| |9|Permanent disability|3,00,000/-|1,83,600/-|| |10|Loss of earning power|1,00,000/-|Nil|| ||Total<br>Limited to|15,28,000<br>10,00,000/-|**6,08,245/- **|**Rounded to**<br>**Rs.6,08,300/-**| |11.<br>The accident occurred on 27.2.2017. At the time of||||| accident, the appellant was aged 19 years. He claimed a monthly **MACA.No.3742 OF 2019** 6 income of Rs.20,000/- as salesman. However, no reliable materials were placed on record before the Tribunal to prove the monthly income. The appellant has also not chosen to mount the box. In such circumstances, the Tribunal fixed the monthly income of the appellant notionally as Rs.8,500/-, 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 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 **MACA.No.3742 OF 2019** 7 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 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 2017, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this **MACA.No.3742 OF 2019** 8 Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.11,000/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A2 is the wound certificate and Ext.A5 is discharge summary. As per medical records, in the accident, the appellant sustained fracture talus right side; fracture navicular right side, fracture lateral malleolus right side; and compartment syndrom with skin netrosis. He was admitted at Medical College Hospital on 27.02.2017. He had undergone surgery of fasciotomy and external fixation on 27.02.2017 and discharged on 01.03.2017. He was again admitted for wound debridement and skin grafting on 24.3.2017 and discharged on 03.04.2017. In Ext.C1 disability certificate, the Medical Board assessed 10% disability on account of partial ankylosis of right knee and ankle due to fracture talus navicular and lateral malleolus. 16. Towards loss of earnings the Tribunal awarded a sum of Rs.51,000/-(8,500 x 6). Considering the nature of injuries sustained and the treatment the appellant had undergone, the period of 6 months fixed by the Tribunal for loss of earning is reasonable. Since the monthly income of the appellant is notionally re-fixed as Rs.11,000/-, the compensation under head loss of **MACA.No.3742 OF 2019** 9 earning is re-fixed as Rs.66,000/- (11,000 x 6), resulting an additional compensation of **Rs.15,000/-** (66,000 – 51,000). 17. Towards transportation to hospital, the Tribunal awarded Rs.7,500/-. Towards extra nourishment and bystander expenses, the Tribunal awarded a sum of Rs.14,400/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded by the Tribunal under the aforesaid heads represents just and reasonable, which requires no enhancement in this appeal. 18. 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 2017, the compensation towards damage to clothing is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 – 1,000). 19. Towards medical expenses, the Tribunal awarded a sum of Rs.2,40,745/- covered by Ext.A6 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head is just and reasonable, which warrants no enhancement. 20. Towards pain and suffering the Tribunal awarded a sum of Rs.60,000/- and a further some of Rs.50,000/- was awarded **MACA.No.3742 OF 2019** 10 towards loss of amenities in life. As evident from Ext.A2 wound certificate; Ext.A4 discharge card; Ext.A5 discharge summary and Ext.A7 series of photographs, the appellant sustained fracture talus right side, fracture navicular right side, fracture lateral malleolus right side and compartment syndrom with skin netrosis. The appellant had undergone surgery of fasciotomy, external fixation and skin grafting. As per Ext.C1 disability certificate, the appellant is having partial ankylosis of right knee and ankle due to fracture talus navicular and lateral malleolus. Considering the nature of injuries sustained by the appellant, the treatment he had undergone and the nature of disabilities noted in Ext.C1 disability certificate, resulting a permanent disability of 10%, the compensation awarded by the Tribunal under the heads pain and suffering and loss of amenities are on the higher side. Therefore, the compensation under the head pain and suffering is scaled down to Rs.45,000/- and that under the head loss of amenities to Rs.35,000/- resulting an excess payment of **Rs.30,000/-,** which has to be deducted from the additional compensation granted in this appeal. 21. 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.** **MACA.No.3742 OF 2019** 11 **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. 22. 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. 23. In the instant case, as on the date of accident, the **MACA.No.3742 OF 2019** 12 appellant was aged 19 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. 24. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,83,600/- (8,500 x 12 x 18 x 10/100). Since the monthly income of the appellant is re-fixed as Rs.11,000/-, the compensation under the head permanent disability is re-fixed as Rs.2,37,600/- (11,000 x 12 x 18 x 10/100), resulting an additional compensation of **Rs.54,000/-** (2,37,600 – 1,83,600). In the result, the appellant will be entitled for payment of an additional compensation of **Rs.39,500/-** (Rupees thirty nine thousand and five hundred only) [(15,000 + 500 + 54,000) – 30,000] in this appeal, which will carry interest at the rate of 8% per annum, from the date of petition till the date of 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 and Legal Benefit Fund. Payment of additional compensation granted in this appeal shall be made to the **MACA.No.3742 OF 2019** 13 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** jv **JUDGE**