Annie W/o Abi v. Ramanaiah & Others (MACA.No.1290 of 2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **SATURDAY, THE 26TH DAY OF OCTOBER 2019 / 4TH KARTHIKA, 1941** ## **MACA.No.1290 OF 2009** **AGAINST THE AWARD IN OPMV 3123/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER :** **ANNIE W/O ABI, CHOWALLOR HOUSE, ANDIPPILLY NAGAR, CHALIKKAVATTOM,, P.O.VENNALA, ERNAKULAM DISTRICT,, (NOW RESIDING AT C/O.C.I.VARGHESE, S/O.IYYUKUTTY,, CHOWALLOOR HOUSE, CHATHAMKULAM, P.O.PATTIKKAD,, THRISSUR DISTRICT.** ## **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS :** |**1**|**RAMANAIAH**| |---|---| ||**PROPRIETOR, M/S.RAVI BALA ROADWAYS, 32/424/B,,**| ||**VELAYUTHA HOUSE, PADIVATTOM KARA,, EDAPPALLY SOUTH**| ||**P.O., ERNAKULAM. (DELETED) ( THE 1ST RESPONDENT IS**| ||**DELETED FROM THE PARTY ARRAY AT THE RISK OF THE**| ||**APPELLANT AS PER ORDER DATED 3/4/19 IN IA 1/19 IN**| ||**MACA 1290/09)**| |**2**|**KAMALAKANNAN S/O.MAHALINGAM**| ||**MUTHAIYA STREET, VELLORE DISTRICT,, WALAJAPET,**| ||**TAMILNADU.**| |**3**|**THE ORIENTAL INSURANCE CO. LTD.**| ||**REP. BY DIVISIONAL MANAGER, THE ORIENTAL INSURANCE**| ||**CO. LTD., DIVISIONAL OFFICE, THRISSUR.**| ||**R3 BY ADVS. SRI.GEORGE CHERIAN (SR.)**| ||**SMT.K.S.SANTHI**| ||**SMT.LATHA SUSAN CHERIAN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1290 OF 2009** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.3123 of 2001 on the file of the Motor Accidents Claims Tribunal, Thrissur, 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 17.06.2001, while she was travelling in an autorickshaw bearing registration No.KEE/5527. At the place of accident, the said autorickshaw was hit by a lorry bearing registration No.KL-7/AC-6759, 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 lorry by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,07,500/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the vehicle involved in the accident; however, **MACA.No.1290 OF 2009** **3** denying the negligence alleged against the 2[nd] 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, the claim petition was tried along with other connected matters arising out the very same accident. Exts.A1 to A46 were marked and PWs.1 to 5 were examined on the side of the claimants. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. 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 offending lorry by the 2[nd] respondent driver. Since insurance coverage of the said 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.1,94,000/- together with interest at the rate of 7% per annum from 11.12.2001 till the date of actual payment, with proportionate cost, and the insurer was directed to **MACA.No.1290 OF 2009** **4** satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, 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 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 **MACA.No.1290 OF 2009** **5** 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 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; |Loss of earning|6000| |---|---| |Expense for transportation|1000| **MACA.No.1290 OF 2009** **6** |Expense for extra nourishment|1000| |---|---| |Damage to clothing|500| |Expense for treatment|117400| |Expense for bystander|2200| |Compensation for pain and suffering|20000| |Compensation for disability|45900| |Total|194000/-| 11. The accident occurred on 17.06.2001. At the time of accident, the appellant was aged 34 years. The appellant claimed a monthly income of Rs.4,000/- as Nurse in Mother Hospital, Thrissur. 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.1,500/-, 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 **MACA.No.1290 OF 2009** **7** 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. 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 **MACA.No.1290 OF 2009** **8** 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 2001, 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 as Rs.3,000/-, for the purpose of assessing compensation under various heads. 15. Ext.A10 is a copy of the wound certificate issued by Thrichur Heart Hospital, which shows that, in the accident, the appellant sustained head injury, compound fracture both bones left leg, fracture lower end shaft radius **MACA.No.1290 OF 2009** **9** left, compound fracture of shaft of ulna right side laceration of tongue lower sulci and lower and upper lip, laceration of ala of nose and forehead, multiple bodily injuries. She was admitted in the hospital on 17.06.2001 and discharged on 09.07.2001, after undergoing treatment for 23 days. She had undergone open reduction and internal fixation with tibial interlocking nail; open reduction and internal fixation of fracture of shaft of ulna by ulnar nail; open reduction and internal fixation of fragmented fracture of shaft radius; and iliac crust bone graft. The appellant was again admitted in the same hospital on 10.05.2002 and discharged on 18.05.2002, after undergoing treatment for a period of 9 days, for non-union fracture of ulna. Again open reduction and internal fixation of ulna by DCP fixation using 3.5 mm screws were made. 16. Ext.A12 is the disability certificate, which was proved by the Doctor who was examined as PW5, assessing the permanent disability of the appellant, on account of the injuries sustained in the accident, at 20%. However, the Tribunal reduced the percentage of disability as 15% whole **MACA.No.1290 OF 2009** **10** body disability. The reasoning of the Tribunal in this regard, as contained in paragraph 18 of the award reads thus; “The assessment of disability is a bit on higher side. Considering the entire evidence on record her permanent disability is considered as 15% whole body.” When the percentage of disability in Ext.A12 stands proved by PW5, in the absence of any vitiating circumstances in that assessment brought out during cross examination of PW5, the Tribunal went wrong in reducing the percentage of disability as 15%. In such circumstances, the appellant is entitled for disability compensation, taking the percentage of disability as 20%, as certified in Ext.A12. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.1,500/- per month for a period of 4 months. Considering the nature of injuries sustained and the inpatient treatment the appellant had undergone during different spells, till 18.05.2002, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is re-fixed as 12 months. Since the monthly income of the appellant is refixed notionally as Rs.3,000/-, the compensation under the **MACA.No.1290 OF 2009** **11** head loss of earning is re-fixed as Rs.36,000/- (3,000 x 12), resulting an additional compensation of **Rs.30,000/-** (36,000 - 6,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 32 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. 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 is refixed as Rs.3,000/-, resulting an additional compensation of **Rs.2,000/-** (3,000 - 1,000). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.2,200/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. 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.4,800/- (150 x 32), resulting an additional compensation of **Rs.2,600/-** (4,800 **MACA.No.1290 OF 2009** **12** - 2,200) under this head. The compensation under the head extra nourishment is re-fixed as Rs.3,200/- (100 x 32), resulting an additional compensation of **Rs.2,200/-** (3,200 - 1,000) under this head. 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2001, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 21. Towards treatment expenses, the Tribunal awarded a sum of 1,17,400/-, covered by Ext.A13 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. 22. Though the appellant claimed Rs.25,000/- towards future treatment, no amount has been awarded by the Tribunal under that head. Considering the nature of injuries sustained and also the fact that the appellant had to undergo surgery for implant removal, this Court deem it **MACA.No.1290 OF 2009** **13** appropriate to grant a sum of **Rs.10,000/-** towards future treatment expenses, which will carry no interest. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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.5,000/-** (25,000 – 20,000) under this head. 24. 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** **MACA.No.1290 OF 2009** **14** 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. 25. 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. 26. 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 17 applied by the Tribunal is not correct and and the proper **MACA.No.1290 OF 2009** **15** multiplier to be applied is **16** . 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.45,900/- (1,500 x 12 x 17 x 15/100). Since the monthly income of the appellant is refixed notionally as Rs.3,000/-, applying the proper multiplier of 16 applicable to the age group of the appellant and the percentage of permanent disability as 20%, the compensation under the head permanent disability is refixed as Rs.1,15,200/- (3,000 x 12 x 16 x 20/100), resulting an additional compensation of **Rs.69,300/-** (1,15,200 – 45,900) under this head. 28. No amount has been awarded by the Tribunal towards the head loss of amenities. Considering the nature of injuries sustained and the permanent disability of 20% on account of those injuries, as assessed in Ext.A12, this Court deem it appropriate to grant an amount of **Rs.20,000/-** as compensation for loss of amenities. 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,41,350/-** (Rupees One lakh forty one thousand and three hundred and **MACA.No.1290 OF 2009** **16** fifty only) [30,000 + 2,000 + 2,600 + 2,200 + 250 + 10,000 + 5,000 + 69,300 + 20,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding Rs.10,000/granted towards future treatment expense. 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 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. This appeal is disposed of as above. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/5/11