Anjana Salbi v. Anwar S/o Khader, A. Velusamy and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 24TH DAY OF JANUARY 2020 / 4TH MAGHA, 1941** ## **MACA.No.1828 OF 2011** **AGAINST THE AWARD IN OPMV 38/2005 DATED 09-12-2010 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT/PETITIONER:** **ANJANA SALBI, AGED 23 YEARS, D/O.SALBI,KANNANPARAMBIL HOUSE, ARATTUVAZHI WARD, ALAPPUZHA-7.** **BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** ## **RESPONDENTS/RESPONDENTS:** **1 ANWAR, S/O.KHADER, 9/133, PUTHTHERUVU, KODUVAYUR,PALAKKAD-678001. 2 A.VELUSAMY, S/O.ARUMUGAM, ASARUTHARA VEEDU, PUTHUSSERY.P.O,PALAKKAD DISTRICT-678007 3 UNITED INDIA INSURANCE CO.LTD REP.BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, MULLACKAL, ALAPPUZHA – 688 001** **R3 BY ADV. SMT.S.JAYASREE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1828 OF 2011 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.38 of 2005 on the file of the Motor Accidents Claims Tribunal, Alappuzha, 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 01.11.2004, while she was pedalling a bicycle. At the place of accident, she was knocked down by a lorry bearing registration No.KLZ-5419, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the lorry involved in the accident; however, denying negligence alleged against its driver. The insurer disputed the age, occupation, monthly income, etc. stated MACA No.1828 OF 2011 3 in the claim petition. The insurer 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. The doctor who issued Ext.A7 disability certificate was examined as PW.1. The 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 the lorry by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.51,150/-, together with interest at the rate of 6% per annum from the date of petition till date of realisation, and the insurer was directed to satisfy the 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 MACA No.1828 OF 2011 4 insurer. Since insurance coverage of the offending vehicle is not in dispute, service of notice on respondents 1 and 2 was dispensed with, by the order dated 28.11.2011. 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 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 MACA No.1828 OF 2011 5 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|Amount<br>claimed|Amount<br>allowed|remarks| |---|---|---|---|---| |1|Transport to hospital||500|| |2|Extra nourishment||1200|| |3|Medical expenses|25000|--|| |4|Bystanders expense||1200|| |5|Damage to bicycle, loss<br>of wrist watch, damages<br>to clothing and loss of<br>text book|5000||| |6|Expenses for further<br>treatment|25000||| |7|Pain and sufferings|30000|10000|| |8|Loss of future earning<br>power|50000||| MACA No.1828 OF 2011 6 |9|Loss of amenities|35000||| |---|---|---|---|---| |10|Compensation<br>for<br>disfiguration|4000||| |11|Compensation<br>for<br>disability|60000|38250|(15000 x 15 x<br>17/100)| ||TOTAL||Rs.51,150/-|| 12. The accident occurred on 01.11.2004. At the time of accident, the appellant was a minor aged 17 years, who was a Plus Two student. The Tribunal took the annual income, notionally, as Rs.15,000/-, for the purpose of assessing compensation under various heads. ## 13. In **Shijumon v. George Abraham and others [2011** **(4) KHC 945]** a Division Bench of this Court fixed the probable monthly income of a student aged 18 years, who was attending Industrial Training Centre, who was also earning income as rubber tapper, as Rs.3,000/-. In the said case, the accident occurred on 08.07.2003. 14. In the instant case, the accident occurred on 01.11.2004. At the time of accident, the appellant was a Plus Two student aged 17 years. Taking note of the fixation of notional monthly income in the decision referred to supra, this Court deem it appropriate to re-fix the probable monthly income of the appellant, notionally, as Rs.2,500/-, for the purpose of assessing MACA No.1828 OF 2011 7 compensation under various heads. 15. The document marked as Ext.A4 is the wound certificate and Ext.A5 is the discharge card. As per medical records, in the accident, the appellant sustained fracture superior and inferior public ramus right; contusion lower spine (back bone lower end); and contusion and abrasion both knee, both hand, dorsal aspect of palm and right foot region. 16. The document marked as Ext.A7 is the disability certificate is issued by an Orthopaedic Surgeon, assessing the permanent disability of the appellant, on account of the injuries sustained in the accident, as 17%. The Tribunal accepted the permanent disability assessed in Ext.A7, for the purpose of awarding compensation under various heads. 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 12 days. The accident is of the year 2004. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. 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.2,500/-, resulting an additional MACA No.1828 OF 2011 8 compensation of **Rs.2,000/-** (2,500 - 500). 18. Towards bystander expenses and extra nourishment, the Tribunal awarded a sum of Rs.1,200/- each. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 12 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 bystander expenses is re-fixed as Rs.1,800/- (150 x 12), resulting an additional compensation of **Rs.600/-** (1,800 – 1,200). The compensation awarded by the Tribunal under the head extra nourishment represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards damage to clothing and articles, the Tribunal awarded no amount. The accident is of the year 2004. Therefore, the appellant is granted a sum of **Rs.1,000/-** under this head. 20. Towards medical expenses, the Tribunal awarded no amount. In the absence of any medical bills, the Tribunal cannot be find fault with in not granting any amount towards medical expenses. 21. As compensation towards pain and suffering, the MACA No.1828 OF 2011 9 Tribunal awarded a sum of Rs.10,000/-. 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 the head pain and suffering is re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.15,000/-** (25,000 – 10,000). 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 MACA No.1828 OF 2011 10 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 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 17 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 15 applied by the Tribunal is not correct and the proper multiplier to be applied is **18** . 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.38,250/- (15,000 x 15 x 17/100). Since the monthly income of the appellant is re-fixed notionally as Rs.2,500/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability MACA No.1828 OF 2011 11 as 17%, the compensation under the head permanent disability is re-fixed as Rs.91,800/- (2,500 x 12 x 18 x 17/100), resulting an additional compensation of **Rs.53,550/-** (91,800 – 38,250). 26. Towards loss of amenities the Tribunal awarded no compensation. Considering the nature of injuries sustained and 17% permanent disability on account of those injuries, as assessed in Ext.A7 disability certificate, the appellant is granted a sum of **Rs.20,000/-** towards loss of amenities. 27. Tribunal awarded no compensation under the head disfiguration and future treatment expenses. Considering the nature of injuries sustained, the appellant is granted a sum of **Rs.5,000/-** under the head disfiguration. The appellant is granted a further sum of **Rs.10,000/-** under the head future treatment expenses, which will carry no interest. 28. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.1,07,150/-** (Rupees one lakh seven thousand one hundred and fifty only) [2,000 + 600 + 1,000 + 15,000 + 53,550 + 20,000 + 5,000 + 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding MACA No.1828 OF 2011 12 Rs.10,000/- granted under the head future treatment expenses. 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. The disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and 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. The appellant shall provide her Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer within one month from the date of certified copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN** JV ## **JUDGE**