Baburaj v. Shajan S/o Velayudhan and Abhilash & National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941** ## **MACA.No.3909 OF 2019** **AGAINST THE AWARD IN OP(MV)NO.803/2016 DATED 28-02-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER :** **BABURAJ AGED 42 YEARS S/O. UNNIKRISHNAN, MATTAPPULLY HOUSE P.O KANDAKULAM DESOM, METHALA, KODUNGALLUR, THRISSUR DIST PIN 680 669** **BY ADVS. SMT.JEENA JOSEPH SRI.G.D.PANICKER SMT.V.J.SUMI LIZA** ## **RESPONDENTS/RESPONDENTS :** - **1 SHAIJAN S/O. VELAYUDHAN, NADUVELY HOUSE, P.O THURAVOOR, ANGAMALY, ERNAKULAM DT. PIN 683572** - **2 ABHILASH, S/O. SIVASANKARAN, JAYA NIVAS, NADUVATHAPARA, PERINGOTTUKURUSSI, PALAKKAD PIN 678 574** - **3 NATIONAL INSURANCE COMPANY LTD, REP. BY BRANCH MANAGER, KORATTY, CHALAKUDY, PIN 680 308** **R3 BY ADV. SRI.GEORGE CHERIAN (SR.) R3 BY ADV. SMT.K.S.SANTHI R3 BY ADV. SMT.LATHA SUSAN CHERIAN** ## **SRI LAL GEORGE -STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3909 OF 2019** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.803 of 2016 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/ claimant in a motor accident, which occurred on 25.03.2016, while he was travelling in a motorcycle bearing registration No.KL08/AF-48, as pillion rider. At the place of accident, the said motorcycle was hit by a tanker lorry bearing registration No.KL-41/C-5113 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of tanker lorry by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.9,05,000/-, under various heads, which was limited to Rs.9,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. **MACA.No.3909 OF 2019** **3** 3. The 3[rd] respondent/insurer filed written statement admitting the insurance coverage of the tanker lorry involved in the accident; however, denying the negligence alleged against the 2[nd] respondent driver. Insurer has also disputed the amount claimed under various heads. 4. Before the Tribunal, the claim petition was tried along with O.P(MV)No.804 of 2016, arising out of the very same accident. Exts.A1 to A11 were marked on the side of the claimants. Both sides have not chosen to adduce any oral evidence. Ext.X1 is the disability certificate of the appellant/claimant issued by the Medical Board, in which the percentage of disability is certified as 16%. 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 tanker lorry by the 2[nd] respondent driver. Since insurance coverage of the offending 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.6,91,900/-, and the insurer was directed to satisfy the award, with interest at the rate of 8% per annum from **MACA.No.3909 OF 2019** **4** 15.07.2016 till realisation, within two months from the date of 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 insurer. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 is dispensed with. 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 **MACA.No.3909 OF 2019** **5** 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 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; **MACA.No.3909 OF 2019** **6** |Sl.<br>No.|Head of Claim|Amount<br>claimed<br>(Rs.)|Amount<br>allowed<br>(Rs.)|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earnings|1,80,000|72,000|(9000x8 months)| |2|Transportation<br>expenses|10,000|3,000|| |3|Extra nourishment|20,000|1,500|| |4|Damage to clothing|5,000|1,000|| |5|Bystander’s expenses|40,000|7,200|(24x300 days)| |6|Medical expenses|4,00,000|2,43,000|| |7|Pain and suffering|50,000|60,000|| |8|Loss of earning power|50,000|Nil|| |9|Loss of amenities|50,000|40,000|| |10|Loss of permanent<br>disability|1,00,000|2,59,200|(9,000x12x15x16%)| |11|Disfiguration|Nil|5,000|| |12|Total|9,05,000/-<br>(Limited to<br>9,00,000)|6,91,900/-|Rs.6,91,900/-<br>along with interest<br>@ 8% p.a. from<br>15-07-2016<br>till<br>realisation.| 12. The accident occurred on 25.03.2016. At the time of accident, the appellant was aged 39 years. The appellant claimed a monthly income of Rs.10,000/- as a coolie (Manual Labourer). No materials were produced before the Tribunal to prove the monthly income. 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.9,000/-, for the purpose of assessing compensation under various heads. **MACA.No.3909 OF 2019** **7** 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 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** **MACA.No.3909 OF 2019** **8** **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. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2016, 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.10,000/- claimed by the appellant cannot be said to be on a higher side. Therefore, this Court deem it appropriate **MACA.No.3909 OF 2019** **9** to re-fix the monthly income of the appellant notionally as Rs.10,000/-, for the purpose of assessing compensation under various heads. 16. Ext.A3 is the discharge summary, which would show that on account of the accident, the appellant had sustained Displaced tibia and fibula fracture mid 3[rd] right leg; Bilateral pleural effusion with multiple rib fractures 2 to 8 right side; Liver laceration with hemoperitomum; and Right massive pleural effusion with underlying collapse of the lung. 17. In Ext.X1 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 16%. 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.72,000/-, at the rate of Rs.9,000/- per month for a period of 8 months. Considering the nature of injuries sustained by the appellant, who is a manual labourer, which includes multiple fractures, and the treatment the appellant **MACA.No.3909 OF 2019** **10** had undergone, as borne out from medical records, the period of 8 months fixed by the Tribunal for granting loss of earning is re-fixed as 10 months. Since the monthly income of the appellant is re-fixed notionally as Rs.10,000/-, the compensation under the head loss of earning is re-fixed as Rs.1,00,000/- (10,000x10), resulting an additional compensation of **Rs.28,000/-** (1,00,000 – 72,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 24 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.7,200/- (24 x 300). Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,500/-. The accident is of the year 2016 and the appellant had undergone inpatient treatment for 24 days. **MACA.No.3909 OF 2019** **11** 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 bystander expense cannot be said to be on the lower side, which requires no enhancement in this appeal. However, the compensation under the head extra nourishment is re-fixed as Rs.3,600/- (24 x 150), resulting an additional compensation of **Rs.2,100/-** (3,600 – 1,500). 21. Towards damage to clothings, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2016, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 - 1,000). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.2,43,000/- covered by Ext.A4 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.60,000/- and towards loss of **MACA.No.3909 OF 2019** **12** amenities, a further sum of Rs.40,000/- has been granted. Considering the nature of injuries sustained, which includes multiple fractures, and also the physical condition of the appellant as seen from Ext.A6 photographs, which has been made available for the perusal of this Court by the learned counsel for the appellant, the compensation awarded by the Tribunal under these heads cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under these heads. 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** and **Charlie** ], which starts with an operative multiplier of **18** [for the age groups of 15 to 20 and 21 to 25 years], **MACA.No.3909 OF 2019** **13** 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 39 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 correct and proper. 27. Towards compensation for permanent disability, **MACA.No.3909 OF 2019** **14** the Tribunal awarded a sum of Rs.2,59,200 (9,000 x 12 x 15 x 16/100). Since the monthly income of the appellant is refixed notionally as Rs.10,000/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of permanent disability as 16%, the compensation under the head permanent disability is refixed as Rs.2,88,000/- (10,000 x 12 x 15 x 16/100), resulting an additional compensation of **Rs.28,800/-** ( 2,88,000 – 2,59,200) under this head. 28. Under the head disfiguration, the Tribunal awarded a sum of Rs.5,000/-. Considering the disfiguration, as reflected in Ext.A6 series of photographs, this Court deem it appropriate to re-fix the compensation under this head as Rs.15,000/-, resulting an additional compensation of **Rs.10,000/-** (15,000 – 5,000). 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.69,400/-** (Rupees Sixty nine thousand and four hundred only) [28,000 + 2,100 + 500 + 28,800 + 10,000] 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 **MACA.No.3909 OF 2019** **15** 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 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** AV/18/11