Baby v. Mathew T. Joseph & KSRTC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** ## **MACA.No.487 OF 2015** **AGAINST THE AWARD IN OP(MV) No. 886/2005 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, MAVELIKKARA** ## **APPELLANT/S:** **BABY, S/O.OONNUNNY, PUTHEN VEETTIL, (BIJU BHAVANAM),CHERUKOLE P.O., (MAVELIKKARA).** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SMT.PARVATHY NAIR** ## **RESPONDENT/S:** **1 MATHEW T. JOSEPH KODIKULAM VEETTIL, PERUMPAYIKKADU, PARAMPUZHA - 686 032 (KSRTC DEPOT KOTTAYAM). 2 KSRTC REPRESENTED BY ITS DIVISIONAL MANAGER TRIVANDRUM - 690 001.** ## **OTHER PRESENT:** ## **SRI P.C.CHACKO-STANDING COUNSEL,KSRTC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 487 of 2015 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.886 of 2005 on the file of the Motor Accidents Claims Tribunal, Mavelikkara 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 05.07.2004, while he was riding a scooter. At the place of accident, the scooter was hit by a KSRTC bus bearing registration No.KL-15/4795 driven by the 1[st] respondent and owned by the 2[nd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,25,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set ex parte. 3. The 2[nd] respondent owner filed written statement admitting the accident; however, denying the negligence alleged against the 1[st] respondent driver. The 2[nd] respondent -3- MACA. No. 487 of 2015 contended that the accident occurred due to negligence of the appellant/claimant and that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A17 were marked on the side of the appellant/claimant and he was examined as PW1. The document marked as Ext.A17 is the disability certificate issued by an individual doctor assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident. 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 bus by its driver. Since the vehicle was not covered by a valid insurance policy, respondents 1 and 2 were jointly and severally held liable to compensate the appellant/claimant. Under various heads, the Tribunal awarded a total compensation of Rs.85,013/-, together with interest at the rate of 9% per annum from the date of petition till realisation, -4- MACA. No. 487 of 2015 with a cost of Rs.1,000/-, and respondents 1 and 2 were 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 2[nd] respondent owner. Despite service of notice, none appears for the 1[st] respondent driver. 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 -5- MACA. No. 487 of 2015 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 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. -6- MACA. No. 487 of 2015 ## 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head of Claim|Amount<br>claimed|Amount<br>allowed|Details in a nut<br>shell| |---|---|---|---|---| |1|Loss of earnings|30000|6000|For 2 months| |2|Medical and<br>miscellaneous<br>expenses|25000|30374|As per Ext.A10<br>bills| |3|Bystander's expense|3000|1000|For ten days| |4|Transportation<br>charges and others|2000|1315|As per Ext.A11| |5|Extra nourishment|3000|500|Moderate rate| |6|Damage to clothing<br>etc.|1000|500|Moderate rate| |7|Pain and sufferings|40000|15000|Considering the<br>nature of<br>injuries| |8|Loss of amenities in<br>life|30000|3000|Considering the<br>nature of<br>injuries| |9|Compensation for<br>disability & loss of<br>earning power|60000|27324|3450x12x6x11/<br>100| ||**Total**|1,94,000<br>(limited to<br>Rs.1,25,000)|**85013**|| 12. The accident occurred on 05.07.2004. At the time of accident, the appellant was aged 52 years. The appellant claimed a monthly income of Rs.5,000/- as auto electrician. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant was examined -7- MACA. No. 487 of 2015 as PW1. 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 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 -8- MACA. No. 487 of 2015 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)** , 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. -9- MACA. No. 487 of 2015 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2004, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, and also the evidence of PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.4,750/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A6 is the wound certificate and Ext.A7 is the discharge card. As per medical records, in the accident, the appellant sustained fracture lower end of radius right, abrasion over chin and area over the upper lip. He had undergone inpatient treatment for a period of 12 days. Ext.A10 series of medical bills are for a sum of Rs.30,375.53 and Ext.A11 series of trip sheets are for a sum of Rs.1,315/- towards travelling expenses. 17. In Ext.A17 disability certificate issued by an individual doctor, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed -10- MACA. No. 487 of 2015 as 8%, as per Mc bride scale. The appellant failed to prove Ext.A17 disability certificate by examining the doctor concerned. In the absence of proof, the Tribunal took the percentage of permanent disability as 6%, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.3,000/- for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 months fixed by the Tribunal for granting loss of earning is re-fixed as 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,750/-, the compensation under the head loss of earning is re-fixed as Rs.19,000/- (4,750 x 4), resulting an additional compensation of **Rs.13,000/-** (19,000 – 6,000). 19. 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 -11- MACA. No. 487 of 2015 Rs.1,315/-covered by Ext.A11 series of trip sheets. 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. 20. Towards bystander expenses the Tribunal awarded a sum of Rs.1,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. 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.800/-** (1,800 – 1,000). The compensation under the head extra nourishment is re-fixed as Rs.1,200/- (100 x 12), resulting an additional compensation of **Rs.700/-** (1,200 - 500). 21. Towards damage to clothing the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of -12- MACA. No. 487 of 2015 the year 2004, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 -500). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.30,374/-, covered by Ext.A10 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.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. 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** -13- MACA. No. 487 of 2015 **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 Apex Court held that, as far as the multiplier is concerned, the -14- MACA. No. 487 of 2015 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 52 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 **11** applied by the Tribunal is correct and proper. 27. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able -15- MACA. No. 487 of 2015 to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a notional monthly income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. -16- MACA. No. 487 of 2015 Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v.** -17- MACA. No. 487 of 2015 **Madan Mohan [(2009) 13 SCC 422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 28. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex -18- MACA. No. 487 of 2015 Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** , to injured persons having higher percentage of functional disability. 29. In the instant case, as per Ext.A17 disability certificate, the percentage of permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 8%, and the Tribunal took the percentage of permanent disability as 6% for the purpose of assessing the disability compensation. In the light of the decisions in **Mekala, Syed Sadiq** , the appellant is not entitled for award of compensation under the head permanent disability adding future prospects to his notional monthly income. 30. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.27,324/- (3,450 x 12 x 11 x 6/100) adding 15% towards future prospects. Since the -19- MACA. No. 487 of 2015 monthly income of the appellant is re-fixed notionally as Rs.4,750/-, applying the multiplier of 11 applicable to the age group of the appellant and the percentage of permanent disability as 6%, the compensation under the head permanent disability is re-fixed as Rs.37,620/- (4,750 x 12 x 11 x 6/100), resulting an additional compensation of **Rs.10,296/-** ( 37,620 – 27,324). 31. Towards loss of amenities the Tribunal awarded a sum of Rs.3,000/-. In Ext.A17 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 8%. The Tribunal took the percentage of permanent disability as 6%. Considering the said fact, the compensation awarded by the Tribunal under the head loss of amenities is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.7,000/-** (10,000 – 3,000). 32. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.32,046/-** (Rupees thirty two thousand and forty six only) [13,000 + -20- MACA. No. 487 of 2015 800 + 700 + 250 + 10,296 + 7,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The respondents 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 his 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 2[nd] respondent KSRTC, within one month from the date of receipt of a certified copy of this judgment. -21- MACA. No. 487 of 2015 This appeal is disposed of as above. No order as to costs. All pending interlocutory applications in this appeal are closed. Sd/- **ANIL K.NARENDRAN JUDGE** das