Assainar Haji v. P Mohanan, Santosh Babu, Oriental Insurance Co. Ltd., Unnikrishnjan, The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941** ## **MACA.No.869 OF 2013** **AGAINST THE AWARD IN OPMV 53/2009 DATED 06-03-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** **APPELLANT/S: ASSAINAR HAJI, AGED 65 YEARS S/O MAMMUTTI HAJI, KUNDUPARAMBIL VEEDU, CHERPULASSERY, PALAKKAD, NOW RESIDING AT MADAPPULLY VEEDU, VILAYANCHATHANNUR, THENKURUSSI POST, ALATHUR TALUK, PALAKKAD.** **BY ADVS. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA** ## **RESPONDENT/S:** **1 P MOHANAN, PONNATH VEEDU, KARALMANNA POST, THENKURUSSI, PALAKKAD-678 671. 2 SANTHOSH BABU, S/O KOLAVAN, KUNDANCHIRA VEEDU, MANALAYA, ANAMANGAD, PERINTHALMANNA-379 357. 3 THE ORIENTAL INSURANCE CO.LTD. PATTAMBI, PALAKKAD-679 303. 4 UNNIKRISHNAN, S/O MADHAVIKUTTY AMMA, PUTHANAIKKAL VEEDU, CHERPULASSERY, PALAKKAD-679 503. [DELETED] R4 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 19.11.19 IN IA 1/19 IN MACA 869/13. 5 THE NEW INDIA ASSURANCE CO.LTD. OTTAPPALAM-679 101. R1 BY ADV. SRI.R.AJITH KUMAR 12884 R1, R5 BY ADV. SMT.RAJI T.BHASKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 869 of 2013 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.53 of 2009 on the file of the Motor Accidents Claims Tribunal, Palakkad, 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 06.08.2008, while he was driving an autorickshaw bearing registration No.KL-10/C-5581. At the place of accident, the autorickshaw was hit by a bus bearing registration No.KL10/M-3449, owned by the 1[st] respondent, driven by the 2[nd] respondent and and insured with the 3[rd] respondent. The 4[th] respondent is the owner of the autorickshaw in which the appellant/claimant was the driver and the 5[th] respondent is the insurer of that autorickshaw. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.6,00,000/-, under various heads. -3- MACA. No. 869 of 2013 2. Before the Tribunal, respondents 1, 2 and 4 remained absent and they were set ex parte. The 3[rd] respondent insurer filed written statement admitting the accident; however, denying the negligence alleged against the 2[nd] respondent driver. It was pointed out that the bus involved in the accident was having valid insurance coverage, at the time of accident. 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. The 5[th] respondent insurer of the autorickshaw filed a written statement admitting insurance coverage of the said vehicle. The insurer contended that there was no negligence on the part of the appellant, who was driving that autorickshaw. 4. Before the Tribunal, Exts.A1 to A24 were marked on the side of the appellant/claimant. The document marked as Ext.X1 is the disability certificate issued by the Special Medical Board at District Hospital, Palakkad, assessing the permanent disability of the appellant/claimant, on account of the -4- MACA. No. 869 of 2013 injuries sustained in the accident. 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 offending bus by the 2[nd] 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.1,94,500/-, together with interest at the rate of 7.5% per annum from 15.1.2009 till realisation, with proportionate cost 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, the learned Standing Counsel for the 3[rd] respondent/insurer, and also the learned Standing Counsel for the 5[th] respondent insurer. 8. The issue that arises for consideration in this -5- MACA. No. 869 of 2013 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 Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the -6- MACA. No. 869 of 2013 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<br>.|Head of claim|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning|45000|9000|On a just<br>estimate| |2|Medical<br>and<br>miscellaneos expenses|350000|114500|On a just<br>estimate| |3|Future treatment|80000|Not allowed|| |4|Bystander expenses|15000|2550|On a just<br>estimate| |5|Transportation<br>expenses|15000|3000|On a just<br>estimate| |6|Extra nourishment||2000|On a just<br>estimate| -7- MACA. No. 869 of 2013 |7|Damage to clothing|1000|500|On a just<br>estimate| |---|---|---|---|---| |8|Pain and sufferings|50000|25000|On a just<br>estimate| |9|Loss of amenities and<br>conveniences etc.|50000|12000|On a just<br>estimate| |10|Permanent disability|50000|25920|On a just<br>estimate| ||**Total**|**600000**|**1,94,500/**<br>**-**|Rs.1,94,500/-<br>along<br>with<br>interest at the<br>rate of 7.5% p.a.<br>From 15.1.2009<br>till realisation.| 12. The accident occurred on 06.08.2008. At the time of accident, the appellant was aged 60 years. The appellant claimed a monthly income of Rs.3,500/- as a coolie (manual labourer). The appellant has not chosen to mount the box to prove his monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.3,000/-, for the purpose of assessing compensation under various heads. ## 13. 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 -8- MACA. No. 869 of 2013 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)** , -9- MACA. No. 869 of 2013 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. 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.3,500/- as claimed in the claim petition, cannot be said to be on the higher side, which can be taken as the notional monthly income of the appellant, for the purpose of assessing -10- MACA. No. 869 of 2013 compensation under various heads. 16. The document marked as Ext.A14 is the wound certificate. Exts.A15 to A19 are discharge summaries; Ext.A20 is the scan report and Ext.A21 is the treatment certificate. Ext.A22 series of medical bills are for a sum of Rs.1,14,500/-. As per Ext.A14 wound certificate, in the accident, the appellant sustaned fracture both bone left leg, contusion left chest and fracture nasal bone. Exts.A15 and A19 discharge summaries would show that the appellant was admitted in Alshifa Hospital, Perinthalmanna from 06.08.2008 to 22.08.2008. He had undergone surgery on 11.08.2008. The injuries noted in the discharge summary are both bones fracture left leg at middle and lower 1/3[rd] junction, MC fracture right hand, blunt injury abdomen and chest, fracture nasal bone, facial injury. As per Ext.A20 CT scan report, the appellant had sustained bilateral pleural effusion and fracture rib left side. 17. In Ext.X1 disability certificate, the Special Medical Board assessed the permanent disability of the appellant, on -11- MACA. No. 869 of 2013 account of the injuries sustained in the accident, as 8%. The disability noted by the Medical Board in Ext.X1 are left knee partial anklyosis with knee terminal flexion limitation, partial anklylosis of index finger right hand. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.9,000/-, at the rate of Rs.3,000/- for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, the compensation under the head loss of earning is re-fixed as Rs.21,000/- (3,500 x 6), resulting an additional compensation of **Rs.12,000/-** (21,000 – 9,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for -12- MACA. No. 869 of 2013 16 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,000/-. 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. 20. Towards bystander expenses the Tribunal awarded a sum of Rs. 2,550/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. 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.3,200/- (200 x 16), resulting an additional compensation of **Rs.650/-** (3,200 – 2,550). The compensation under the head extra nourishment is re-fixed as Rs.2,400/- (150 x 16), resulting an additional compensation of **Rs.400/-** (2,400 - 2000). 21. Towards damage to clothing and articles, the -13- MACA. No. 869 of 2013 Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2008, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/** -(1,000 – 500). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.1,14,500/-, covered by Ext.A22 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. 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. 24. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its -14- MACA. No. 869 of 2013 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 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 -15- MACA. No. 869 of 2013 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 60 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 **9** applied by the Tribunal is correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.25,920/- (3,000 x 12 x 9 x 8/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, applying the multiplier of 9 applicable to the age group of the appellant and the percentage of permanent disability as 8%, the compensation under the head permanent disability is re-fixed as Rs.30,240/(3,500 x 12 x 9 x 8/100), resulting an additional compensation of **Rs.4,320/-** (30,240 – 25,920). -16- MACA. No. 869 of 2013 28. Towards loss of amenities the Tribunal awarded a sum of Rs.12,000/-. In Ext.X1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 8%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.X1 disability certificate, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.17,870/-** (Rupees seventeen thousand eight hundred and seventy only) [12,000 + 650 + 400 + 500 + 4,320] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] respondent/insurer shall satisfy the additional compensation granted in this appeal, together with interest, excluding the period of delay of 354 days in filing the appeal, which was condoned as per order dated 19.11.2019 in C.M.Appln. No.1 of 2019, subject to the -17- MACA. No. 869 of 2013 condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the period of delay, 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 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 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 JUDGE** das