ASHRAF v. NEW INDIA ASSURANCE COMPANY LIMITED

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941** ## **MACA.No.3764 OF 2019** **AGAINST THE AWARD IN O.P.(MV)NO.2257/2017 DATED 25-04-2019 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE.** ## **APPELLANT/PETITIONER:** **ASHRAF, AGED 46 YEARS, S/O. MOIDEEN KUNHI, CHEERACHAMPURATHU HOUSE, POST BEYPOORE, KOZHIKODE DISTRICT-673 015.** **BY ADV. SRI.A.V.M.SALAHUDIN** ## **RESPONDENT/3RD RESPONDENT:** **NEW INDIA ASSURANCE COMPANY LIMITED, SHAFEER COMPLEX, OPPOSITE YMCA, KANNUR ROAD, KOZHIKODE DISTRICT-673 001.** ## **SRI A.A.ZIYAD RAHMAN-STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.3764 of 2019 -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.2257 of 2017 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, 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 14.06.2017 while he was riding a scooter bearing registration No.KL-11/AY-3814. At the place of accident, the said scooter was hit by a motorcycle bearing registration No. KL-11/S-2352 owned by the 1[st] respondent, ridden by the 2[nd] respondent before the Tribunal and insured with the respondent herein. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by its rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/- under various heads. 2. Before the Tribunal, the owner and rider of the offending motorcycle remained absent and they were set exparte. The insurer filed a written statement admitting the insurance coverage; however, denying negligence alleged against the rider of the motorcycle. The age, occupation, MACA.No.3764 of 2019 -3- 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, Exts.A1 to A11 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce the evidence. 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 riding of the offending motorcycle by its respondent rider. Since insurance coverage of the offending 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.2,56,800/- and the insurer was directed to satisfy the award, together with interest at the rate of 8% per annum from the date of petition till date of deposit, with proportionate cost. 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/ MACA.No.3764 of 2019 -4- claimant and also 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 MACA.No.3764 of 2019 -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. 10. In the instant case, the compensation awarded by ## the Tribunal under various heads reads thus; |Sl.<br>No.|The<br>compensation<br>claimed<br>under<br>different heads|Amount<br>claimed<br>(Rs.)|Amount<br>allowed<br>(Rs.)|Basis/vital details in<br>a nutshell| |---|---|---|---|---| |1|Loss of earning power|1,00,000|2,01,600|8000x12x14x15/10<br>0| |2|Pain and suffering|50000|15000|| |3|Loss of amenities and<br>enjoyment in life|50000|10000|| |4|Medical bills|1,00,000|68907|| |5|Damage to clothing<br>and articles|50000|18900|A10 series| |6|Bystander's expenses|10000|6300|700x9 days| |7|Transport to hospital|5000|2000|| MACA.No.3764 of 2019 -6- |8|Damage to clothing|2000|1000|| |---|---|---|---|---| |9|Extra nourishment|5000|2000|| ||**Total**||**2,56,800**|| 11. The accident occurred on 14.06.2017. At the time of accident, the appellant was aged 45 years. The appellant claimed a monthly income of Rs.20,000/- as fisherman. 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.8,000/-, 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 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 MACA.No.3764 of 2019 -7- 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 no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of MACA.No.3764 of 2019 -8- 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 2017, 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.11,000/-, for the purpose of assessing compensation under different heads. 15. The document marked as Ext.A2 is the wound certificate, as per which the appellant sustained fracture of both bone right leg lower 1/3[rd] , deformity over right leg and abrasions over right foot and right leg. As per Ext.A6 reference card, the appellant underwent inpatient treatment at Medical College Hospital, Kozhikode from 14.06.2017 till 16.06.2017. He underwent CRIF and fixation implant. Ext.A7 is the treatment certificate in this regard. As per Ext.P8 reference card, as per which he was again admitted at Medical College MACA.No.3764 of 2019 -9- Hospital as inpatient, for the period from 09.08.2017 till 14.08.2017, for a period of 6 days. Ext.A9 series are O.P. tickets relating to follow up treatment. In Ext.A11 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 15%. The Tribunal took the percentage of disability as 15% for the purpose of awarding compensation under various heads. 16. Towards loss of earning, no amount has been awarded by the Tribunal. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, loss of earning can be granted for a period of three months. Since the monthly income of the appellant is re-fixed notionally as Rs.11,0000/-, he is granted a sum of **Rs.33,000/-** (11,000 x 3) as compensation under the head loss of earnings. 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 9 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from MACA.No.3764 of 2019 -10- medical records, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 18. Towards bystander expenses the Tribunal awarded a sum of Rs.6,300/- (700 x 9). Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2017 and the appellant had undergone inpatient treatment for 9 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 cannot be said to be on the lower side. 19. 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 2017, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 – 1,000). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.18,900/-, covered by Ext.A10 series of medical bills. In the absence of any further materials, the compensation MACA.No.3764 of 2019 -11- awarded by the Tribunal under this 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.15,000/-. 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. 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 MACA.No.3764 of 2019 -12- 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. 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 45 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 **14** applied by the Tribunal is correct and proper. MACA.No.3764 of 2019 -13- 25. Towards loss of earning power (permanent disability), the Tribunal awarded a sum of Rs.2,01,600/(8,000 x 12 x 14 x 15/100). Since the monthly income of the appellant is re-fixed notionally as Rs.11,000/-, applying the multiple of 14 applicable to the age group of the appellant and the percentage of permanent disability as 15%, the compensation under the head loss of earning power (permanent disability) is re-fixed as Rs.2,77,000/- (11,000 x 12 x 14 x 15/100), resulting an additional compensation of **Rs.75,600/-** (2,77,200 – 2,01,600). 26. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. In Ext.A11 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 15%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.A11 disability certificate, the compensation awarded by the Tribunal under this head re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 – 5,000) under this head. MACA.No.3764 of 2019 -14- 27. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,14,100/-** (Rupees one lakh fourteen thousand and one hundred only) [33,000 + 500 + 75,600 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. 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 the amount to the appellant/claimant 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** bpr