Baiju K.R. v. Chandran, Manoj and The New India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941** **MACA.No.75 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.1651/2005 DATED 18-08-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER :** **BAIJU K.R., S/O.PARAKULAM RAMAKRISHANAN PUNCHAPARAMBU, KOONTHUKUNNU, THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK.** **BY ADV. SRI.T.N.MANOJ** ## **RESPONDENTS/RESPONDENTS:** - **1 CHANDRAN, S/O.VELAYUDHAN, KOODATHINGAL HOUSE, KIZHUTHANI, THANISSERY POST,, PORATHUSSERY VILLAGE, MUKUNDAPURAM TALUK.** - **2 MANOJ K.V.S/O.KOODATHINGAL VELAYUDHAN KIZHUTHANI, THANISSERY POST,, PORATHISSERY VILLAGE, MUKUNDAPURAM TALUK.** - **3 THE MANAGER NEW INDIA INSURANCE COMPANY LTD., IRINJALAKUDA** ## **R3 BY ADV. SMT.P.K.SANTHAMMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.75 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1651 of 2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda, 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 28.11.2004, while he was riding a motorcycle. At the place of accident, the motorcycle was hit by a car bearing registration No.KL/H-1610 driven by the 1[st] respondent, owned 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 car by the 1[st] respondent, claim petition was filed before the Tribunal claiming compensation 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 insurance coverage of the car involved in the accident; however, denying the negligence alleged against the 1[st] respondent driver. The **MACA.No.75 OF 2010** **3** insurer contended that the 1[st] respondent was not holding a valid driving licence at the time of accident and that, the accident occurred due to the rash and negligent riding of the motorcycle by the appellant/claimant. 3. Before the Tribunal, the claim petition was tried along with connected matter filed by the pillion rider. Exts.A1 to A15 were marked on the side of the claimants. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. Both sides have not chosen to adduce any oral 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 driving of the car by the 1[st] respondent driver. As evident from Ext.A2 charge sheet, the 1[st] respondent driver was holding a valid driving licence at the time of accident. 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.54,240/together with interest at the rate of 7% per annum from the **MACA.No.75 OF 2010** **4** date of petition till realisation, with proportionate cost and the 3[rd] respondent insurer was directed to 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. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 2[nd] respondent is dispensed with. 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 **MACA.No.75 OF 2010** **5** 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 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. **MACA.No.75 OF 2010** **6** ## 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Head|Amount allowed in<br>rupees| |---|---| |Medical expenses|15,100/-| |Hospitalisation|700/-| |Transportation|1,000/-| |Loss of income|4,000/-| |Pain and suffering|10,000/-| |Discomfort and loss of amenities|4,000/-| |Disability compensation|19,440/-| |**TOTAL**|**54,240/-**| 11. The accident occurred on 28.11.2004. At the time of accident, the appellant was aged 28 years. The appellant claimed a monthly income of Rs.4,000/- as Supplier. 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.2,000/-, 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 **MACA.No.75 OF 2010** **7** 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. 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** **MACA.No.75 OF 2010** **8** **(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. 14. 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, the monthly income of Rs.4,000/- claimed in the claim petition is not on the higher side. Therefore, the same is accepted as the notional monthly income of the appellant for the purpose of assessing compensation under various heads. **MACA.No.75 OF 2010** **9** 15. As per Ext.A11 and Ext.A13 discharge summaries issued from the West Fort Hospital, Thrissur, the appellant was admitted there on 28.11.2004 as referred from Taluk Head Quarters Hospital, Irinjalakuda, with minimally displaced fracture of the right ulna, soft tissue injury under the right foot, lacerated wound over the right hand and transcaphoid perilunate dislocation. He had undergone inpatient treatment for a period of 7 days in two different spells. 16. Ext.A14 is the disability certificate, wherein the permanent disability of the appellant, on account of malunion of right ulna and stiffness of right wrist, was assessed as 12%. The said certificate was not proved by examining the concerned doctor. After converting the percentage of disability assessed in Ext.A14 into whole body disability, the Tribunal took the percentage of permanent disability as 4.5%, for the purpose of awarding compensation under various heads. Considering the nature of injuries sustained and the disabilities noted in Ext.A14, the procedure adopted by the Tribunal in this regard cannot **MACA.No.75 OF 2010** **10** be said to be either arbitrary or illegal warranting an interference in this appeal. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.4,000/-, at the rate of Rs.2,000/- 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.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.16,000/- (4,000 x 4), resulting an additional compensation of **Rs.12,000/-** (16,000 – 4,000) 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 7 days in two different spells. 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 under this head is re- **MACA.No.75 OF 2010** **11** fixed as Rs.2,000/-, resulting an additional compensation of **Rs.1,000/-** (2,000 – 1,000). 19. Towards Hospital expenses, the Tribunal awarded a consolidated sum of Rs.700/-. The accident is of the year 2004. Considering the nature of injuries sustained and the treatment the appellant had undergone for a period of 7 days, this Court deem it appropriate to grant a sum of Rs.1,050/- (150 x 7) under the head by-stander's expenses and a further sum of Rs.700/- (100 x 7) under the head extra nourishment. After deducting Rs.700/- awarded by the Tribunal under the head hospital expenses, the appellant is entitled for an additional compensation of **Rs.1,050/-** [(1,050 + 700) – 700)] under these heads. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.15,100/-, covered by Ext.A15 bills and vouchers. 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. 21. As compensation towards pain and suffering, the **MACA.No.75 OF 2010** **12** Tribunal awarded a sum of Rs.10,000/-. 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.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 – 10,000). 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 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 **MACA.No.75 OF 2010** **13** **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 28 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 18 applied by the Tribunal is not correct and the proper multiplier to be applied is **17** . 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.19,440/- (8,000 x 12 x 15 x 8/100). Since the monthly income of the appellant is re- **MACA.No.75 OF 2010** **14** fixed notionally as Rs.4,000/-, applying the multiplier of 17 applicable to the age group of the appellant and the percentage of permanent disability as 4.5%, the compensation under the head permanent disability is refixed as Rs.36,720/- (4,000 x 12 x 17 x 4.5/100), resulting an additional compensation of **Rs.17,280/-** (36,720 – 19,440). 26. Towards loss of amenities, the Tribunal awarded a sum of Rs.4,000/-. Considering the nature of injuries sustained and the disabilities noted in Ext.A14 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs. 10,000/-, resulting an additional compensation of **Rs.6,000/-** (10,000 – 4,000). 27. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.42,330/-** (Rupees Forty two thousand three hundred and thirty only) [12,000 + 1,000 + 1,050 + 5,000 + 17,280 + 6,000] 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/insurer shall satisfy the additional compensation **MACA.No.75 OF 2010** **15** 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 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/3/12