Aneesh Kumar v. National Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941** ## **MACA.No.3777 OF 2019** **AGAINST THE AWARD IN OP(MV) 226/2015 DATED 06-01-2018 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT:** **ANEESH KUMAR, AGED 38 YEARS, S/O.KUTTAPPAN, THONARIKUDIYIL HOUSE, KANINADU, PUTHENCRUZE.** **BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENT:** **THE NATIONAL INSURANCE COMPANY LTD., URUMBATH BUILDINGS, PUMP JUNCTION, ALUVA - 683 101.** ## **SRI LAL GEORGE - STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.3777 OF 2019 ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.226 of 2015 on the file of the Motor Accident Claims Tribunal, Perumbavoor, which is 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 11.01.2015, while he was walking through the side of Thammanam-Pullepady road. At the place of accident, a motorcycle bearing registration No.KL-41/H-3582 owned and ridden by the 1[st] respondent before the Tribunal knocked down the appellant/claimant. As a result of the accident, he sustained injuries. Alleging that the accident occurred due to rash and negligent riding of the motorcycle by the 1[st] respondent owner-cum-rider, claim petition was filed before the Tribunal, claiming a total compensation of Rs.8,56,000/- under various heads, which was limited to Rs.7,00,000/- for the purpose of payment of court fee. 2. Before the Tribunal, the 1[st] respondent owner-cumrider of the offending vehicle remained absent and he was set ex-parte. The 2[nd] respondent insurer filed written statement 3 MACA No.3777 OF 2019 admitting the insurance coverage of the motorcycle, however, denying the rashness and negligence alleged against the 1[st] respondent. The insurer has also raised other contentions. 3. Before the Tribunal, Exts.A1 to A12 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 finding that the accident occurred due to rash and negligent riding of the motorcycle by its rider. Since insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.3,06,840/- and the insurer was directed to satisfy the award, with interest at the rate of 8% per annum from the date of petition till the date of realisation, together with proportionate cost (excluding the compensation awarded under the head future treatment). 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant and also 4 MACA No.3777 OF 2019 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 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 5 MACA No.3777 OF 2019 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; |SI.<br>No|Head of claim<br>compensation for|Amount<br>claimed<br>(in<br>rupees)|Amount<br>awarded|Basis-vital<br>details in a<br>nut shell| |---|---|---|---|---| |1|Loss of earnings|1,20,000|28,000|Rs.7000x<br>4 months| |2|Partial loss of<br>earnings|Nil|Nil|| |3|Transport to Hospital|10,000|2,500|2 IP+ review| |4|Extra nourishment|25,000|1,500|| |5|Medical expenses|1,50,000|1,28,640|Actual<br>medical bills| |6|Pain and suffering|1,00,000|35,000|| |7|Loss of amenities etc|50,000|25,000|| |8|Permanent Disability|3,00,000|67,200|Rs.7000x12x<br>16x5%| |9|Attendance charge|50,000|3,000|Rs.250x12<br>days| 6 MACA No.3777 OF 2019 |10|Damage to clothes<br>etc|1000|1000|| |---|---|---|---|---| |11|Future treatment<br>expense|50,000|15,000|Implant<br>removal| ||Total|Rs.<br>8,56,000<br>limited<br>to<br>7,00,000|Rs.3,06,840/-|| 11. The accident occurred on 11.01.2015 and at the time of accident, the appellant was aged 34 years. He claimed a monthly income of Rs.20,000/- as a driver in Public Works Department. However, no documents were placed on record to prove the monthly income. The driving licence of the appellant was not placed on record. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal took the monthly income notionally as Rs.7,000/-, 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 7 MACA No.3777 OF 2019 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 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 8 MACA No.3777 OF 2019 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 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 re-fix the monthly income of the appellant notionally at Rs.10,000/-, for the purpose of assessing compensation under various heads. 15. Ext.A6 is the wound certificate issued from General Hospital, Ernakulam, wherein it is stated that the appellant complained pain, tenderness and swelling on left knee. He sustained abrasion on left elbow and crushed comminuted fracture on left ulna. Ext.A8 is the discharge summary issued from Medical Trust Hospital, Ernakulam, as per which, the appellant sustained Type II open severely comminuted olecranon fracture with bone loss and left elbow subluxation. 9 MACA No.3777 OF 2019 There was swelling over the nasal bridge. As per Ext.A8, the appellant was admitted in the hospital on 11.01.2015 and he was discharged on 23.01.2015. Ext.A9 series of medical bills are for an amount of Rs.1,28,640/-. In Ext.A10 disability certificate issued by Shri.Muhammed Ali, who is an Orthopaedic Surgeon, 5% permanent disability was assessed, as per McBride's Scale. The Tribunal accepted the permanent disability certified in Ext.A10. 16. Towards loss of earnings, the Tribunal awarded a sum of Rs.28,000/-, at the rate of Rs.7,000/-, for a period of four months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the appellant can be granted loss of earnings for a period of six months. Therefore, the compensation under this head is re-fixed as Rs.60,000/- (10,000 x 6), resulting an additional compensation of **Rs.32,000/-** (60,000-28,000). 17. Towards extra nourishment, the Tribunal awarded a sum of Rs.1,500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under this head is re-fixed as Rs.1,800/- (150 x 12), resulting an additional compensation of **Rs.300/-** (1800- 10 MACA No.3777 OF 2019 1500). 18. Towards bystander expenses, the Tribunal awarded a sum of Rs.3,000/- (250 x 12). The compensation awarded by the Tribunal under this head is just and reasonable, which warrants no enhancement in this appeal. 19. Towards damage to clothing, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2015, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500-1000). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.1,28,640/-, covered by Ext.A9 series of medical bills. In the absence of any further materials, the compensation granted under the above 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.35,000/- and towards loss of amenities, the Tribunal awarded a further sum of Rs.25,000/-. Considering the nature of injuries sustained, the treatment the appellant had undergone, and the disability as certified in 11 MACA No.3777 OF 2019 Ext.A10, the compensation awarded by the Tribunal under the above heads cannot be said to be on the lower side, 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 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 12 MACA No.3777 OF 2019 ## **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 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 34 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 **16** applied by the Tribunal is correct and proper. 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.67,200/- (7000x12x16x5/100). Since the monthly income of the appellant is re-fxed notionally as Rs.10,000/-, the compensation under this head is re-fixed as Rs.96,000/- (10,000x12x16x5/100), resulting an additional compensation of **Rs.28,800/-** (96,000-67,200). 26. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.61,600/-** (Rupees Sixty One Thousand Six Hundred only) [32,000 + 300 13 MACA No.3777 OF 2019 + 500 + 28,800], which will carry interest at the rate of 8% per annum from the date of petition till realisation, excluding the delay of 497 days in filing this appeal, which was condoned by the order dated 25.09.2019 in C.M.Apll.No.1 of 2019, on 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 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. The appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** **yd**