ANI, S/O.KUNJAN v. Shireesh Chandran, M/S.P.H.MOHAMMED KUNJU & BROTHER, and The National Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941** ## **MACA.No.1871 OF 2015** **AGAINST THE AWARD IN OPMV 807/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/PETITIONER:** **ANI, S/O.KUNJAN, CHELLASSERY HOUSE, METHALA KARA, ASAMANNOOR VILLAGE** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/RESPONDENTS:** **1 SHIREESH CHANDRAN S/O.KUMARAN, KAMOTHU HOUSE, KUMBALAM VILLAGE, KUMBALAM PANCHAYATH VIII WARD, PANANGADU POST 682 506.** - **2 PARTNER** **M/S.P.H.MOHAMMED KUNJU & BROTHER, P.B.NO.3227, MARKET ROAD, KOCHI 35.** **3 THE NATIONAL INSURANCE COMPANY LIMITED MYDHILY MANDIRAM, JANATA JUNCTION, PALARIVATTOM, KOCHI, ERNAKULAM - 682 025.** **R2 BY ADV. SRI.K.M.MOHAMMED ASHARAF R3 BY ADV. SMT.P.A.REZIYA, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1871 OF 2015** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.807 of 2009 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, 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 09.09.2008, while he was riding a motorcycle. At the place of accident, the motorcycle was hit by a lorry bearing registration No.KL-7/BA9573, driven by the 1[st] respondent, owned 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 lorry by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,96,500/-, under various heads, which was limited to Rs.10,00,000/-, for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set exparte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the lorry involved in the accident; **MACA.No.1871 OF 2015** **==> picture [7 x 7] intentionally omitted <==** however, denying the negligence alleged against the 1[st] respondent driver. The insurer contended that the accident occurred due to the rash and negligent riding of motorcycle by the appellant. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellant/claimant and a member of the Medical Board at Taluk Headquarters Hospital, Perumbavoor was examined as PW1 in order to prove Ext.A1 disability certificate. Respondents have not chosen to adduce any oral or documentary evidence. 5. 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 lorry 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.5,97,962/-, together with interest at the rate of 8% per annum from the date of petition till realisation, with proportionate cost. The 3[rd] respondent insurer was directed to **MACA.No.1871 OF 2015** 4 satisfy the award within one month from the date of award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 was dispensed with, by the order of this Court dated 15.11.2019. 8. 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. 9. 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 **MACA.No.1871 OF 2015** 5 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. 10. 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. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus: |Sl.<br>No.|Head of Claim<br>Compensation for|Amount<br>claimed<br>(in Rs.)|Amount<br>awarded<br>(in Rs.)|Basis-vital details in<br>a nut shell| |---|---|---|---|---| |1|Loss of earning|54,000|27,000|Rs.4500 x 6 months| **MACA.No.1871 OF 2015** 6 |2|Transport to Hospital|15,000|4,000|Cherthala to Ekm +<br>2 IP| |---|---|---|---|---| |3|Extra nourishment|5,000|5,000|6<br>months-claim<br>admitted| |4|Damage to clothes etc|2,500|1,000|| |5|Attendant charges|20,000|6,500|Rs.250 x 26 days| |6|Medical expenses|3,75,000|1,63,162|Actual medical bills| |7|Future treatment|50,000|NIL|| |8|Pain & suffering|1,00,000|40,000|MT #(4)+ 1# IP 26| |9|Loss of amenities etc|75,000|30,000|| |10|Disability|4,00,000|3,21,300|Rs.4500 x 12 x 17 x<br>35%| ||Total|10,96,500<br>limited to<br>10,00,000|5,97,962/-|Rs.5,97,962/- along<br>with interest @ 8%| 12. The accident occurred on 09.09.2008. At the time of accident, the appellant was aged 26 years. The appellant claimed a monthly income of Rs.6,000/- as Lecturer in School of Fire and Safety Engineering, Angamaly. In order to prove the employment, Ext.A10 authorisation letter issued from School of Fire and Safety, Kochi was produced. The said document was not proved by examining a competent person. 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.4,500/-, for the purpose of assessing compensation under various heads. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** **MACA.No.1871 OF 2015** 7 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 income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 14. 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, **MACA.No.1871 OF 2015** 8 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. 15. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2008, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.6,000/claimed by the appellant cannot be said to be on the higher side, which is accepted as his notional monthly income, for the purpose of awarding compensation under various heads. 16. The document marked as Ext.A7 is the wound certificate; Ext.A8 is the discharge certificate; and Ext.A9 is the discharge summary. As per medical records, in the accident, the appellant sustained crush injury right foot with skin and soft tissue defect dorsum of the foot with compound comminuted fracture 2, **MACA.No.1871 OF 2015** 9 3, 4, 5[th] metatarsals, fracture neck of right talus, lacerated injury forehead and bridge of the nose and lacerated injury right middle and ring finger at Mpx level. He had undergone inpatient treatment for a period of 26 days. Ext.A11 series of medical bills are for a sum of Rs.1,63,162/-. 17. The document marked as Ext.A1 is the disability certificate issued by the Medical Board at the Taluk Headquarters Hospital, Perumbavoor in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 40%. The Orthopaedic surgeon, who was a member of the Medical Board, was examined a PW1. During crossexamination, PW1 has admitted that she was having only 8 years service at the time of issuing Ext.A1 and she had not treated the appellant. As per G.O.(P).No.161/97/H and FWD dated 15.5.1997, the disability certificate has to be issued by a specialist doctor with not less than 10 years standing in the speciality, who had not treated the patient in the acute stage after the accident. Therefore, the Tribunal held that the percentage of disability assessed in Ext.A1 cannot be accepted as such. For the purpose of assessing compensation, the Tribunal scaled down the percentage of disability to 35%. **MACA.No.1871 OF 2015** 10 18. A perusal of Ext.A1 disability certificate would show that on account of the injuries sustained in the accident, the appellant was having planter flexim deformity of 20[o] . In Ext.A1, the Medical Board assessed the percentage of disability as 40%. It is not discernible from Ext.A1 disability certificate, the method adopted by the Medical Board in assessing the percentage of disability as 40%. In such circumstances, the fixation of the percentage of disability as 35% by the Tribunal in the impugned award warrants no interference in this appeal. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.27,000/-, at the rate of Rs.4,500/- for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.6,000/-, the compensation under the head loss of earning is re-fixed as Rs.36,000/- (6,000 x 6), resulting an additional compensation of **Rs.9,000/-** (36,000 – 27,000). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 26 days. **MACA.No.1871 OF 2015** 11 Towards transportation to hospital, the Tribunal awarded a sum of Rs.4,000/-. 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards attendant expenses the Tribunal awarded a sum of Rs.6,500/- (250 x 26). Towards extra nourishment, the Tribunal awarded a further sum of Rs.5,000/-. The accident is of the year 2008 and the appellant had undergone inpatient treatment for 26 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 these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 22. 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 2008, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 – 1,000). 23. Towards medical expenses, the Tribunal awarded a sum **MACA.No.1871 OF 2015** 12 of Rs.1,63,162/-, covered by Ext.A11 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. 24. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.40,000/-. 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. 25. 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 **MACA.No.1871 OF 2015** 13 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. 26. 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. 27. In the instant case, as on the date of accident, the appellant was aged 26 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. 28. Towards compensation for permanent disability, the **MACA.No.1871 OF 2015** 14 Tribunal awarded a sum of Rs.3,21,300/- (4,500 x 12 x 17 x 35/100). Since the monthly income of the appellant is re-fixed notionally as Rs.6,000/-, applying the multiplier of 17 applicable to the age group of the appellant and the percentage of permanent disability as 35%, the compensation under the head permanent disability is re-fixed as Rs.4,28,400/- (6,000 x 12 x 17 x 35/100), resulting an additional compensation of **Rs.1,07,100/-** ( 4,28,400 – 3,21,300). 29. Towards loss of amenities the Tribunal awarded a sum of Rs.30,000/-. In Ext.A1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 40%, which was accepted by the Tribunal as 35%. Considering the nature of injuries sustained and the permanent disability of 35%, the compensation awarded by the Tribunal under this head is re-fixed as Rs.35,000/-, resulting an additional compensation of **Rs.5,000/-** (35,000 – 30,000). In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,21,600/-** (Rupees one lakh twenty one thousand six hundred only) [9,000 + 500 + 1,07,100 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] **MACA.No.1871 OF 2015** 15 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 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** JV **JUDGE**