Ajeesh v. National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** ## **MACA.No.3901 OF 2019** **AGAINST THE AWARD IN OP(MV)NO.1598/2015 DATED 07-05-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONER :** **AJEESH AGED 34 YEARS S/O.ANTONY, KOKKATT HOUSE, PULLUR DESOM, VILLAGE AND P.O., THRISSUR.** **BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENT/2ND RESPONDENT :** **THE NATIONAL INSURANCE COMPANY LIMITED GURUVAYOOR-680 101.** ## **BY SRI LAL GEORGE - STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3901 OF 2019** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1598 of 2015 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, which is 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 25.10.2015, while he was riding a motorcycle bearing registration No.KL-45/D-6125. At the place of accident, the said motorcycle was hit by a motor car bearing registration No.KL-45/F-9871 owned and driven by the 1[st] respondent before the Tribunal and insured with the respondent herein. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the offending motor car by the 1[st] respondent owner-cumdriver, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cumdriver remained absent and he was set ex-parte. The 2[nd] respondent insurer filed a written statement admitting the **MACA.No.3901 OF 2019** **3** insurance coverage of the car involved in the accident; however denying negligence alleged against the 1[st] respondent driver. The insurer disputed the age, occupation and monthly income of the appellant/claimant and contended that the compensation claimed by the appellant under various heads are on the higher side. 3. Before the Tribunal, Exts.A1 to A16 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. Ext.X1 is the disability certificate issued by the Medical Board. 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 motor car by the 1[st] respondent owner-cumdriver. Since insurance coverage of the offending vehicle is not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.5,50,620/- and the insurer was directed to satisfy the award, together with interest at the rate of 8% per annum, with proportionate **MACA.No.3901 OF 2019** **4** cost. 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 respondent insurer. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of 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 **MACA.No.3901 OF 2019** **5** 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 principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head of Claim|Amount<br>Claimed<br>(Rs.)|Amount<br>Awarded<br>(Rs.)|Basis Vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earnings|2,40,000|99,000|(9000x11| **MACA.No.3901 OF 2019** **6** |||||months)| |---|---|---|---|---| |2|Transportation<br>expenses|10,000|8,000|| |3|Extra nourishment|10,000|1,000|| |4|Damage to clothings|15,000|1,000|| |5|Attendant expenses|20,000|7,200|(300x24 days)| |6|Medical expenses|2,00,000|99,100|| |7|Pain and suffering|1,00,000|60,000|| |8|Permanent disability|5,00,000|2,20,320|(9000x12x17x<br>12%)| |9|Loss of amenities|1,00,000|40,000|| |10|Loss of earning<br>power|5,00,000|Nil|| |11|Disfiguration|50,000|Nil|| |12|Mental dejection|50,000|Nil|| |13|Anticipated medical<br>expense|1,00,000|15,000|| ||Total|18,95,000/-<br>(Limited to<br>10,00,000/-)|5,50,620/-|Rs.5,50,620/-<br>along with 8%<br>interest<br>p.a.<br>from<br>28-12-<br>2015<br>till<br>realisation| 11. The accident occurred on 25.10.2015. The appellant was aged 30 years at the time of accident. He claimed a monthly income of Rs.20,000/- as a Glass Fitter. The appellant produced Ext.A10 certificate in order to prove that he passed a course in Automobile Mechanic. Ext.A11 is the salary certificate. However, those documents were not proved. The appellant has not chosen to mount the box. Hence, the Tribunal fixed the monthly income of the **MACA.No.3901 OF 2019** **7** appellant notionally at Rs.9,000/- for the purpose of assessing compensation under different 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 proceed to determine the possible **MACA.No.3901 OF 2019** **8** 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 **MACA.No.3901 OF 2019** **9** 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. As borne out from Ext.A2 wound certificate, the appellant had sustained open fracture on both bones of right leg and 7x3 cm lacerated wound distal 1/3[rd] of right leg. He had undergone inpatient treatment for the period from 25.10.2015 to 08.11.2015 and thereafter, from 14.11.2015 to 24.11.2015. He had undergone inpatient treatment for 24 days. Ext.A8 medical certificate shows that he was advised to take rest for one year. However, the said certificate was not properly proved. The appellant has also not chosen to mount the box. As per Ext.A9 medical certificate, the appellant requires Rs.30,000/- for implant removal. The said certificate was also not proved. He had undergone inpatient treatment for a period of 24 days. 16. In Ext.X1 disability certificate issued by the **MACA.No.3901 OF 2019** **10** Medical Board, the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident, has been assessed as 12%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.99,000/-, at the rate of Rs.9,000/- per month for a period of 11 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 11 months fixed by the Tribunal for granting loss of earnings cannot be said to be on the lower side. Since the monthly income of the appellant has been re-fixed as Rs.10,000/-, the compensation awarded under the head loss of earning is refixed as Rs.1,10,000/- (10,000 x 11), resulting an additional compensation of **Rs.11,000/-** (1,10,000 – 99,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 24 days. Towards transportation to hospital, the Tribunal **MACA.No.3901 OF 2019** **11** awarded a sum of Rs.8,000/-. 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 cannot be said to be on the lower side, which requires no enhancement in this appeal. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.7,200/- (300 x 24). Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2015 and the appellant had undergone inpatient treatment for 24 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 the head bystander's expenses represents just and reasonable compensation, which requires no enhancement in this appeal. However, the compensation under the head extra nourishment is re-fixed as Rs.4,800/- (200 x 24), resulting an additional compensation of **Rs.3,800/-** (4,800 – 1,000). **MACA.No.3901 OF 2019** **12** 20. Towards medical expenses, the Tribunal awarded a sum of Rs.99,100/-, covered by Ext.A14 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 sufferings, Tribunal awarded a compensation of Rs.60,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded under this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 22. Towards loss of amenities, Tribunal awarded a compensation of Rs.40,000/- and towards anticipated medical expenses a sum of Rs.15,000/- has been granted. Considering the nature of injuries sustained by the appellant and the disabilities noted in Ext.X1, the compensation awarded by the Tribunal under the above **MACA.No.3901 OF 2019** **13** heads cannot also be said to be on the lower side. 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 to 60 years, multiplier of **7** for 61 to 65 years and multiplier of **MACA.No.3901 OF 2019** **14** **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 30 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 correct and proper. 26. Towards compensation for permanent disability, the Tribunal awarded a compensation of Rs.2,20,320/(9000 x 12 x 17 x 12/100). Since the monthly income of the appellant is re-fixed notionally as Rs.10,000/-, the compensation under the said head is re-fixed as Rs.2,44,800/- (10,000 x 12 x 17 x 12/100), resulting an additional compensation of **Rs.24,480/-** (2,44,800 – 2,20,320). **MACA.No.3901 OF 2019** **15** In the result, the appellant will be entitled for paymnet of an additional compensation of **Rs.39,280/-** (Rupees Thirty nine thousand two hundred and eighty only) [11,000 + 3,800 + 24,480], 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 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** AV/10/10