Ajith Kumar v. Dharmedra and Others (MACA No. 1848 of 2009)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** ## **MACA.No.1848 OF 2009** **AGAINST THE AWARD IN OPMV 296/2000 DATED 10-11-2003 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR** ## **APPELLANT/S:** **AJITH KUMAR, S/O.SANKARA PANICKAR, KURUMTHODATHU HOUSE,, KAITHARAM KARA, KOTTUVALLY VILLAGE,, NORTH PARAVOOR TALUK. BY ADV. SRI.GOPAKUMAR G. (ALUVA)** ## **RESPONDENT/S:** |**1**|**DHARMEDRA**| |---|---| ||**THOTTAPURATH HOUSE, THEVARKAD KARA,, VARAPUZHA**| ||**VILLAGE, N.PARAVOOR TALUK.**| |**2**|**C.V.BALAKRISHNAN CHANAPARAMBIL HOUSE**| ||**CHIRAKKAKAM, VARAPUZHA.**| |**3**|**UNITED INDIA INSURANCE CO.LTD.**| ||**BRANCH OFFICE, MUNICIPAL BUILDINGS,, MAM ROAD,**| ||**N.PARAVUR.**| **R3 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 1848 of 2009 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.296 of 2006 on the file of the Motor Accidents Claims Tribunal, North Paravur, 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 22.7.1999, while he was working as a door checker in a stage carriage bearing Reg.No.KCF-2606, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the 1[st] respondent driver took forward the bus before the appellant could enter into the bus. In the accident, he fell down and 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.8,00,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent, and they were set exparte. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the -3- MACA. No. 1848 of 2009 bus involved in the accident; however, denying the negligence alleged against the 1[st] 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 A6 were marked on the side of the appellant/claimant and the appellant was examined as PW1. 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 bus by the 1[st] 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 awarded a total compensation of Rs.2,41,450/-, together with interest at the rate of 9% per annum from the date of petition till date of deposit, with proportionate cost and the insurer was directed to satisfy the award. -4- MACA. No. 1848 of 2009 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 '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 -5- MACA. No. 1848 of 2009 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 principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; Transportation expenses 2,000/- -6- MACA. No. 1848 of 2009 Medical expenses 1,06,450/Extra nourishment 5,000/Attendant expenses 2,000/Loss of income 6,000/(1,500 x 4) Pain and sufferings 50,000/Permanent disability 20,000/Loss of amenities 50,000/---------------------- **Total 2,41,450/=============** 11. The accident occurred on 22.07.1999. At the time of accident, the appellant was aged 25 years. The appellant claimed a monthly income of Rs.3,000/- as door checker. The appellant was examined as PW1. No 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.1,500/-, 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 -7- MACA. No. 1848 of 2009 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 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 -8- MACA. No. 1848 of 2009 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. The accident occurred while he was working as door checker in the stage carriage involved in the accident. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 1999, and taking note of the fixation of notional monthly income by the Apex Court in the decisions -9- MACA. No. 1848 of 2009 referred to supra, and also the evidence of PW1, the monthly income of the appellant is re-fixed notionally as Rs.2,500/-. 15. The document marked as Ext.A3 is the wound certificate and Ext.A4 is the discharge certificate. The injuries sustained by the appellant, as borne out from medical records are abrasion over right iliach fosser, lacerated wound in the left inguinal region, bleeding, fracture on left femur, fracture on pubic bone, and urinary bladder injury. The appellant had undergone inpatient treatment for a period of 56 days. Ext.A5 series are medical bills for a total sum of Rs.1,06,451/-. In Ext.A6 disability certificate issued by the Medical Board at District hospital, Ernakulam the percentage of whole body disability is assessed as 15% as per McBride's scale. However, the Tribunal did not accept the assessment of disability in Ext.A6 on the ground that the said document was not properly proved and granted a sum of Rs.2,000/- under the head permanent disability. 16. Ext.A6 disability certificate issued by the Medical Board cannot be brushed aside by the Tribunal on the ground that -10- MACA. No. 1848 of 2009 the same was not proved by examining any one member of the Board. The disabilities noted in Ext.A6 are; walks with a painful gait; hip movements especially internal and external rotation are 50% restricted. Abduction is only 10-15[o] ; knee flexion is only 90[0] and painful; left testicle is absent. Considering the nature of injuries sustained by the appellant and the disabilities noted in Ext.A6, this Court finds that the appellant is entitled for disability compensation taking the percentage of disability as 15%. 17. Towards 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, the period of 4 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.2,500/-, the compensation under the head loss of earning is re-fixed as Rs.15,000/- (2,500 x 6), resulting an additional compensation of **Rs.9,000/-** (15,000 – 6,000). -11- MACA. No. 1848 of 2009 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 56 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs.1,000/-** (3,000 – 2,000). 19. Towards attendant expenses the Tribunal awarded a sum of Rs. 2,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.5,000/-. The accident is of the year 1999 and the appellant had undergone inpatient treatment for 56 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 attendant expenses is re-fixed as Rs.8,400/- (150 x 56), resulting an additional compensation of **Rs.6,400/-** (8,400 – 2,000). The compensation under the head extra nourishment -12- MACA. No. 1848 of 2009 is re-fixed as Rs.5,600/- (100 x 56), resulting an additional compensation of **Rs.600/-** (5,600 – 5,000). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.1,06,450, covered by Ext.A5 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.50,000/-. Considering the nature of injuries sustained, which includes urinary bladder injury, 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. 22. 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** -13- MACA. No. 1848 of 2009 **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** **Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the -14- MACA. No. 1848 of 2009 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 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. 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.20,000/-. Since the monthly income of the appellant is re-fixed notionally as Rs.2,500/-, applying the multiple of 18 applicable to the age group of the appellant and the percentage of permanent disability as 15%, the compensation under the head permanent disability is refixed as Rs.81,000/- (2,500 x 12 x 18 x 15/100), resulting an additional compensation of **Rs.61,000/-** (81,000 – 20,000). 26. Towards loss of amenities the Tribunal awarded a sum of Rs.50,000/-. In Ext.X1 disability certificate the -15- MACA. No. 1848 of 2009 permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 15%. Considering the nature of injuries sustained, the permanent disability that has been assessed in Ext.X1 and also loss of marriage prospects on account of the nature of injuries, this Court deem it appropriate to re-fix the compensation under this head as Rs.75,000/- resulting an additional compensation of **Rs.25,000/-** (75,000 – 50,000). 27. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.1,03,000/-** (Rupees one lakh three thousand only) [9,000 + 1,000 + 6,400 + 600 + 61,000 + 25,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 1987 days in filing this appeal, which was condoned by order dated 29.10.2019 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. The 3[rd] respondent/insurer shall satisfy the additional compensation -16- MACA. No. 1848 of 2009 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 appellant/claimant as per 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