A.L. Antony v. K.P. Varghese Panattu House; Sidhik So.Muhammed Kacherithazhath House; United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941** ## **MACA.No.880 OF 2008** **AGAINST THE AWARD IN OPMV 3662/1999 DATED 01-06-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** **1 A.L.ANTONY AGED 59 YEARS, SON OF LONAN, ARAKKAL HOUSE, KAYAPPILLY LANE,, NEAR VAYANASALA BUS STOP, ELAMAKKARA,, COCHIN-682 026 (DIED).** **ADDITIONAL APPELLANTS 2 TO 5 IMPLEADED2 ANATHASI ANTONY AGED 67 YEARS W/O.LATE SRI.A.L.ANTONY, ARAKKAL HOUSE, KAYAPPILLY LANE, NEAR VAYANASALA BUS STOP, ELAMAKKARA, COCHIN-682 026.** **3 JOSHI.A.A. AGED 46 YEARS S/O.LATE SRI.A.L.ANTONY, ARAKKAL HOUSE, KAYAPPILLY LANE, NEAR VAYANASALA BUS STOP, ELAMAKKARA, COCHIN-682 026.** **4 SHYNI SHIJU AGED 44 YEARS D/O.LATE SRI.A.L.ANTONY, KUNJELIPARAMBIL HOUSE, CHANGAMPUZHA ROAD, EDAPPALLY P.O., EDAPPALLY SOUTH, ERNAKULAM-682 026.** -2- MACA. No. 880 of 2008 **5 ANTONY.A.A. AGED 41 YEARS S/O.LATE SRI.A.L.ANTONY, ARAKKAL HOUSE, KAYAPPILLY LANE, NEAR VAYANASALA BUS STOP, ELAMAKKARA, COCHIN-682 026. ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED AS PER ORDER DATED 30.10.2019 IN IA NO.1/2019 IN MACA NO.880 OF 2008.** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SRI.SAJEN THAMPAN** ## **RESPONDENT/S:** **1 K.P.VARGHESE PANATTU HOUSE, ASAMANNUR P.O., KURUPPAMPADY, PERUMBAVOOR. 2 SIDHIK SO.MUHAMMED KACHERITHAZHATH HOUSE, PEZHAKKAPPILLY,, MUVATTUPUZHA. 3 THE UNITED INDIA INSURANCE COMPANY LIMITED, REPRESENTED BY ITS DIVISIONAL MANAGER,, COCHIN-682 016. R1 BY ADV. SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- MACA. No. 880 of 2008 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.3662 of 1999 on the file of the Motor Accidents Claims Tribunal, Ernakulam, 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 21.10.1999, while he was travelling on a scooter, as pillion rider. At the place of accident, the scooter was hit by a bus 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 the bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,00,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 have not chosen to appear. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the offending bus; however, denying negligence alleged against the 2[nd] -4- MACA. No. 880 of 2008 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 A11 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral 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 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 awarded a total compensation of Rs.82,220/-, together with interest at the rate of 7.5% per annum from the date of petition 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. -5- MACA. No. 880 of 2008 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 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. -6- MACA. No. 880 of 2008 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; |Head|Amount Awarded| |---|---| |Transportation, hospitalisation,|| |attendant expenses, extra nourishment|| |& damage to clothings|4,500| |Medical expenses|29,720| |Loss of earnings|6,000| |Pain and sufferings|25,000| -7- MACA. No. 880 of 2008 For discomforts & inconveniences 15,000 For future probable medical expenses 5,000 ------------------- ## **Total 85,220/-** ============ 11. The accident occurred on 21.10.1999. At the time of accident, the appellant was aged 50 years. The appellant claimed a monthly income of Rs.5,000/- as Painter-cum-cook. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,000/-, 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 -8- MACA. No. 880 of 2008 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 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 -9- MACA. No. 880 of 2008 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 1999, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income fixed by the Tribunal as Rs.2,000/- is just and reasonable, which requires no enhancement. 15. The document marked as Ext.A3 is the wound certificate and Ext.A4 is the discharge card. Exts.A5, A6 and A8 are medical certificates, Ext.A7 is the discharge summary and Ext.A9 series are medical bills for a sum of Rs.29,720/-. -10- MACA. No. 880 of 2008 As per Ext.A3 wound certificate, the appellant sustained lacerated wound around right eye, 4 cms long laceration on the occipital region and fracture of both bones right leg. CT scan disclosed diffuse subarachnoid haemorrhage, thin subdural haematoma on right tempero parietal region and fracture of lateral wall of right orbit. The appellant had undergone inpatient treatment for a period of 33 days. 16. In Ext.A10 disability certificate, the Medical Board at General Hospital, Ernakulam assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 25%. The Tribunal did not accept the permanent disability assessed by the Medical Board, for the purpose of awarding disability compensation. In Ext.A10, the Medical Board assessed permanent disability based on clinical and radiological findings, after subjecting the appellant proper medical examination. The assessment of disability was made as per McBride's scale and Ext.A10 was admitted in evidence without any protest from the side of the respondents. The nature of injuries sustained and the disabilities noticed in -11- MACA. No. 880 of 2008 Ext.A10 are that, the appellant has minimal immediate memory loss, malunited fracrture calcaneum; malunited fracture both bones right leg lower 1/3; 1 cm lateral translation of right tibia; 15 anterior angulation; and myositis ossificans. Considering the nature of disabilities noted in Ext.A10, the permanent whole body disability of the appellant can be taken as 25% as assessed by the Medical Board, for the purpose of awarding disability compensation. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.2,000/- for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 5 months. Therefore, the compensation under the head loss of earning is re-fixed as Rs.10,000/- (2,000 x 5), resulting an additional compensation of **Rs.4,000/-** (10,000 – 6,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for -12- MACA. No. 880 of 2008 33 days. Towards Transportation, hospitalisation, attendant expenses, extra nourishment and damage to clothings, the Tribunal awarded a consolidated sum of Rs.4,500/-. The accident is of the year 1999. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under these heads are re-fixed as follows; Rs.1,500/- towards transportation; Rs.750/- towards damage to clothing; Rs.3,300/- (100 x 33) towards extra nourishment; Rs.4,950/(150 x 33) towards bystander's expense, resulting an additional compensation of **Rs.6,000/-** [(1,500 + 750 + 3,300 + 4,950) – 4,500]. 19. Towards medical expenses, the Tribunal awarded a sum of Rs.29,720/-, covered by Ext.A9 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. 20. As compensation towards pain and suffering, the -13- MACA. No. 880 of 2008 Tribunal awarded a sum of Rs.25,000/-. 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. Therefore, the appellant is not entitled for any enhancement under this head. 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. 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 -14- MACA. No. 880 of 2008 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 appellant was aged 50 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 **13** applied by the Tribunal is correct and proper. 24. Towards loss of permanent disability, no amount has been awarded by the Tribunal. In Ext.A10 disability -15- MACA. No. 880 of 2008 certificate, the Medical Board assessed the percentage of permanent disability of the appellant, on account of the injuries sustained in the accident, as 25%. Taking the monthly income of the appellant as Rs.2,000/-; the multiplier as 13; and the percentage of disability as 25%, the appellant is granted a sum of **Rs.78,000/-** (2,000 x 12 x 13 x 25/100) under the head permanent disability. 25. Towards discomfort and inconveniences, the Tribunal awarded a sum of Rs.15,000/-. In Ext.A10 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident is assessed as 25%. Therefore, towards loss of amenities, the appellant is granted a sum of Rs.25,000/-. After deducting Rs.15,000/granted under the head discomfort and inconveniences, the appellant will be entitled for an additional compensation of **Rs.10,000/-** (25,000 – 15,000). 26. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.98,000/-** (Rupees ninety eighty thousand only) [4,000 + 6,000 + -16- MACA. No. 880 of 2008 10,000 + 78,000] 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. 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