Anitha v. Kerala State Road Transport Corporation & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 16TH DAY OF OCTOBER 2019 / 24TH ASWINA, 1941** **MACA.No.781 OF 2008** **AGAINST THE AWARD IN OPMV 124/1999 DATED 29-08-2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** **–---------------** ## **APPELLANT/CLAIMANT :** **ANITHA, W/O.SATHEESAN, KALATHIL PARAMBU, THIRUMALA WARD, ALAPPUZHA** **BY ADV. SRI.S.SHANAVAS KHAN** ## **RESPONDENTS/RESPONDENTS :** |**1**|**THE MANAGING DIRECTOR,**| |---|---| ||**KERALA STATE ROAD TRANSPORT CORPORATION,**| ||**TRIVANDRUM.**| |**2**|**THANKAPPAN, S/O.NARAYANAN**| ||**VAIKASSERI VEETTIL, WARD IV,**| ||**CHOTTANIKARA PANCHAYATH, KOORIKADU VILLAGE,**| ||**KANAYANNUR TALUK, ERNAKULAM DISTRICT.**| |**3**|**JAMEELA IQUBAL, W/O.IQBAL,**| ||**VELLUTHARAYIL HOUSE, PALACE WARD, ALAPPUZHA.**| |**4**|**AJESH KUMAR K.A., S/O.AZHAGAPPAN,**| ||**KOOTTUNGAL PARAMBIL, THIRUMALA WARD, ALAPPUZHA.**| |**5**|**THE BRANCH MANAGER**| ||**ORIENTAL INSURANCE CO.LTD, ALAPPUZHA.**| ||**R1 BY SRI.JOY GEORGE, SC, K.S.R.T.C.**| ||**R2 BY ADV. SRI.GOKUL DAS V.V.H.**| ||**R2 BY ADV. SRI.E.RAFEEK**| ||**R5 BY ADV. SRI.RAJESH THOMAS**| ||**R1 BY SHRI.JOHNSON P.JOHN, SC, KSRTC**| ||**R1 BY SRI.P.C.CHACKO, SC,**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.781 OF 2008 -: 2 :- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.124 of 1999 on the file of the Motor Accidents Claims Tribunal, Alappuzha, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 21.5.1998, while she was travelling in an autorickshaw bearing registration No.KL-4/C-8947. At the place of accident, the autorickshaw was hit by a KSRTC bus bearing registration No.KL-15/2558, owned by the first respondent and driven by the 2[nd] respondent. The 3[rd] and the 4[th] respondents are owner and driver respectively of the autorickshaw. The 5[th] respondent is the insurer of the autorickshaw. In the accident, the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of KSRTC bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.1,75,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 filed written statement admitting the accident; however, denying the negligence attributed against the 2[nd] respondent driver. They have also raised a contention that the accident occurred due to the rash and negligent MACA.No.781 OF 2008 -: 3 :- driving of autorickshaw by the 4[th] respondent driver and that, the compensation claimed by the appellant under various heads are on the higher side. The 3[rd] respondent owner of autorickshaw filed written statement opposing the claim petition; alleging negligence on the side of the 2[nd] respondent driver of KSRTC bus. The 5[th] respondent insurer of the autorickshaw did not file written statement. 3. The claim petition was tried along with the connected matters. On the side of the claimants, Exts.A1 to A22 were marked and the claimant in OP(MV)No.60 of 1999 was examined as PW1. RW1 was examined on the side of the respondents. 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 KSRTC bus by the 2[nd] respondent driver and in such circumstances, respondents 1 and 2 were held liable to pay the amount of compensation to the appellant/claimant. Under various heads, the Tribunal awarded a total compensation of Rs.50,850/-, and the 1[st] respondent was directed to satisfy the award, with interest at the rate of 6% per annum from the date of petition till realisation, together with proportionate cost. MACA.No.781 OF 2008 -: 4 :- 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, 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 1[st] respondent KSRTC. 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 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 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 MACA.No.781 OF 2008 -: 5 :- 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>Awarded| |---|---|---| |1|Loss of earning (1,500 x 4 months)|Rs.6,000/-| |2|Bystander expenses|Rs. 500/-| |3|Treatment charges|Rs.1,500/-| |4|Extra nourishment|Rs. 500/-| |5|Transport to hospital|Rs. 500/-| |6|Damage to clothing|Rs. 250/-| |7|Pain and suffering|Rs.6,000/-| |8|Loss of amenities|Rs.5,000/-| |9|Permanent disability (1,500x12x17x10/100)|Rs.30,600/-| ||TOTAL|Rs.50,850/-| MACA.No.781 OF 2008 -: 6 :- 11. The accident occurred on 21.5.1998. At the time of accident, the appellant was aged 25 years. She claimed a monthly income of Rs.1,750/- as a Tailor. The appellant has not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.1,500/-. 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 income by resorting to some guess work, which may MACA.No.781 OF 2008 -: 7 :- 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 of accident, i.e., during the year 1998, 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.1,750/-, as claimed by the appellant, for MACA.No.781 OF 2008 -: 8 :- the purpose of assessing compensation under various heads. 15. Ext.A18 wound certificate issued from the Medical College Hospital, Alappuzha would show that in the accident, the appellant sustained fracture of shaft of right femur, multiple contusions and lacerated injuries all over the body. As per Ext.A16 discharge card, she was admitted in the hospital on 21.5.1998 and discharged on 6.6.1998. In Ext.A17 disability certificate issued by Dr.Santhosh Kumar, a permanent disability of 12.48% is certified. The appellant has not chosen to prove Ext.A17 disability certificate by examining the doctor, who has issued the same. Considering the nature of injuries sustained by the appellant, the Tribunal took the percentage of disability as 10%. The assessment so made by the Tribunal, since the appellant failed to prove Ext.A17, warrants no interference in this appeal. 16. 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, this Court deem it appropriate to grant loss of earning for a period of 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.1,750/-, the compensation under the head loss of MACA.No.781 OF 2008 -: 9 :- earning is re-fixed as Rs.8,750/- (1,750x5), resulting an additional compensation of **Rs.2,750/-** (8,750–6,000). 17. Towards bystander expenses, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the appellant had undergone inpatient treatment for a period of sixteen days, this Court deem it appropriate to refix the compensation under this head as Rs.2,400/(Rs.150x16), resulting an additional compensation of **Rs.1,900/-** (2,400-500). 18. Towards extra nourishment the Tribunal awarded a sum of Rs.500/-. Considering the fact that the appellant had undergone inpatient treatment for a period of sixteen days, this Court deem it appropriate to refix the compensation under this head as Rs.1,600/(Rs.100x16), resulting an additional compensation of **Rs.1,100/-** (1,600-500). 19. Towards treatment charges, the Tribunal awarded a sum of Rs.1,500/-. Considering the nature of injuries sustained, which includes fracture of shaft of right femur, and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to refix the compensation under this head as Rs.3,000/-, resulting an additional compensation of **Rs.1,500/-** (3,000-1,500). MACA.No.781 OF 2008 -: 10 :- 20. Towards transport to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained, which includes and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to refix the compensation under this head as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000-500). 21. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 1998, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750-250). 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.6,000/-. Considering the nature of injuries sustained, which includes fracture of shaft of right femur, and also the nature of treatment the appellant had undergone, the compensation under this head is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.4,000/-** (10,000-6,000) under this head. 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** MACA.No.781 OF 2008 -: 11 :- **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. 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 25 years. In the light of the decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** MACA.No.781 OF 2008 -: 12 :- referred to supra, the multiplier of 17 applied by the Tribunal is not correct and proper. The correct multiplier to be applied is **18** . 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.30,600/- (1,500x12x17x10/100). Since the monthly income of the appellant is refixed notionally as Rs.1,750/-, applying the multiplier of 18 and percentage of disability as 10%, the compensation under the head permanent disability is re-fixed as Rs.37,800/- (1,750x12x18x10/100), resulting an additional compensation of **Rs.7,200/-** (37,800-30,600). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained and also the permanent disability of 10% accepted by the Tribunal, this Court deem it appropriate to refix the compensation under this head as Rs.10,000/-, resulting an additional compensation of **Rs.5,000/-** (10,000-5,000) under this head. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.24,450/-** (Rupees Twenty four thousand four hundred and fifty only) [2,750 + 1,900 + 1,100 + 1,500 + 500 + 500 + 4,000 + 7,200 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 1[st] respondent shall satisfy the additional MACA.No.781 OF 2008 **==> picture [58 x 9] intentionally omitted <==** compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy 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. This appeal is disposed of as above. No order as to costs. **Sd/ANIL K.NARENDRAN JUDGE** _//TRUE COPY//_ _P.A. TO JUDGE_ Jvt/23.10.2019