Balachandran v. United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941** ## **MACA.No.2940 OF 2008** **AGAINST THE AWARD IN OP(MV) 1107/2004 DATED 17-11-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **BALACHANDRAN, AGED 42 YEARS S/O.BALAKRISHNAN, C/O.JAYARAJAN T.V. VADAKKEKKARAVEEDU,P.O.EZHUVANTHALA, OTTAPALAM,, PALAKKAD.** **BY ADV. SRI.M.B.PRAJITH** ## **RESPONDENTS/RESPONDENTS:** - **1 JOSE, S/O.ANTONY, PUTHUR HOUSE, PUTHURUTHY.** - **2 MANOHARAN, S/O.SANKARANARAYANAN AMMATH HOUSE, VARAVOOR.P.O, WADAKANCHERRY,, THRISSUR.** - **3 THE UNITED INDIA INSURANCE CO.LTD BRANCHK OFFICE PARK HOUSE, ROUND NORTH, THRISSUR.** **R3 BY ADV. SMT.P.A.REZIYA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2940 OF 2008** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1107 of 2004 on the file of the Motor Accidents Claims Tribunal, Ottapalam, 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 30.04.2004, while he was driving an autorikshaw bearing registration No.KL-8/V-7576. At the place of accident, the autorikshaw was hit by a bus bearing registration No.KL-8/X-7095, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of bus by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the bus involved in the accident; however, denying the negligence alleged against its driver. The insurer disputed the age, occupation, monthly income, etc. stated **MACA.No.2940 OF 2008** 3 in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the offending bus was marked as Ext.B1. The document marked as Ext.X1 is the disability certificate issued by the Medical Board assessing the permanent disability of the appellant/claimant, on account of the 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 bus by its 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.2,90,750/-, together with interest at the rate of 7% per annum from the date of petition till realisation, with a cost of Rs.2,500/-, 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. **MACA.No.2940 OF 2008** 4 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. 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 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 **MACA.No.2940 OF 2008** 5 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; |bunal under various heads reads thus;|| |---|---| |Compensation for disability<br>(2,000 x 12 x 15 x 60/100)|2,16,000| |Medical expenses<br>(covered by Exts.A6 and A8 series of bills)|53,900| |Bystander expense|2,850| |Transportation to hospital|1,500| |Extra nourishment|1,000| |Damage to clothing|500| |Pain and sufferingand loss of amenities|15,000| ||**2,90,750**| 12. The accident occurred on 30.04.2004. At the time of accident, the appellant was aged 42 years. The appellant claimed a monthly income of Rs.5,000/- as an autorikshaw driver. The accident occurred while the appellant was driving an autorikshaw. **MACA.No.2940 OF 2008** 6 He was not charge sheeted by the Police for driving the autorikshaw without a valid driving licence. The Tribunal fixed the monthly income notionally as Rs.2,000/-, 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 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 **MACA.No.2940 OF 2008** 7 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. 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 fact that at the time of accident, the appellant was driving an autorikshaw, who was not charge sheeted by the Police for **MACA.No.2940 OF 2008** 8 driving the autorikshaw without a valid driving licence, this Court deem it appropriate to re-fix his monthly income notionally as Rs.4,750/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A5 is the wound certificate and Ext.A7 is the discharge summary. As per medical records, in the accident, the appellant sustained two lacerated wounds 1.5x0.5cm each on occipital area, abrasions right forehead, left knee, pain and numbness and inability to move limbs. X-ray revealed fracture of cervical spine, C5 fracture body with grade-I, C5 and C6, fracture portion of C5 right side. Ext.A7 discharge summary showed traumatic guadriplegia, occipital laceration. The appellant had undergone inpatient treatment for a period of 19 days. Exts.A6 and A8 series of medical bills are for a sum of Rs.53,863/- and the Tribunal granted Rs.53,900/- towards medical expense. 17. The document marked as Ext.X1 is the disability certificate, in which the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 60%. It is certified in Ext.X1 the appellant was having fracture subluxation C5, C6 resulting on traumatic **MACA.No.2940 OF 2008** 9 quadriplegia, and noted a quadripanesis without bladder bowel involvement. The appellant appeared before the Tribunal and the Tribunal found that he was walking without much strain. However, he was disabled and crippling, his right hand was found stiff. Therefore, 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 no compensation. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant loss of earning for a period of 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,750/-, the compensation under the head loss of earning comes to **Rs.28,500/-** (4,750 x 6). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 19 days. The accident is of the year 2004. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,500/-. 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-fixed as Rs.3,000/-, resulting an additional **MACA.No.2940 OF 2008** 10 compensation of **Rs.1,500/-** (3,000 – 1,500). 20. Towards bystander expenses the Tribunal awarded a sum of Rs.2,850/- (150 x 19). Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 19 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 towards bystander expense represents just and reasonable compensation, which requires no enhancement in this appeal. The compensation under the head extra nourishment is re-fixed as Rs.1,900/- (100 x 19), resulting an additional compensation of **Rs.900/-** (1,900 - 1,000). 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2004, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 22. As compensation towards pain and suffering and loss of amenities, the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and the treatment the appellant **MACA.No.2940 OF 2008** 11 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.30,000/-. In Ext.X1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 60%. Considering the nature of injuries sustained and 60% permanent disability on account of those injuries, as assessed in Ext.X1 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.60,000/-. In the result, the appellant will be entitled for an additional compensation of **Rs.75,000/-** [(30,000 + 60,000) – 15,000] under the head pain and suffering and loss of amenities. 23. 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. **MACA.No.2940 OF 2008** 12 She is not able 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. 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 **MACA.No.2940 OF 2008** 13 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. 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 **MACA.No.2940 OF 2008** 14 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]** . 24. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex 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. 25. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, the determination of 'just compensation' has to be **MACA.No.2940 OF 2008** 15 on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in **Sarla Verma [(2009) 6 SCC 121]** and it has been approved in **Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65]** . The age and income, as stated earlier, have to be established by adducing evidence. The Tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the Tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. In **Pranay Sethi** the Apex Court approved the principle of 'standardisation' so that a specific and certain multiplicand is **MACA.No.2940 OF 2008** 16 determined for applying the multiplier on the basis of age. 26. In **Rajesh v. Rajbir Singh [(2013) 9 SCC 54]** , a ThreeJudge Bench of the Apex Court held that, in case of selfemployed persons also, if the deceased victim is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. In **Munna Lal Jain v. Vipin Kumar Sharma [(2015) 6 SCC 347]** another ThreeJudge Bench followed the principle stated in **Rajesh** . In **Pranay Sethi** , after expressing the opinion that the dicta laid down in **Reshma Kumari** being earlier in point of time would be a binding precedent and not the decision in **Rajesh** , the Constitution Bench observed that, in **Munna Lal Jain** , the Three-Judge Bench should have been guided by the principle stated in **Reshma Kumari** which has concurred with the view expressed in **Sarla Devi** or in case of disagreement, it should have been well advised to refer the case to a Larger Bench. 27. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench held that, while determining the income, an addition of **50%** of actual salary to the income of the deceased towards future prospects, where the deceased had a **permanent** **MACA.No.2940 OF 2008** 17 **job** and was **below the age of 40 years** , should be made. The addition should be **30%** , if the age of the deceased was **between 40 to 50 years** . In case the deceased was between the age of **50 to 60 years** , the addition should be **15%** . Actual salary should be read as actual salary less tax. The Apex Court held further that, in case the deceased was **self-employed** or on a **fixed salary** , an addition of **40%** of the established income should be the warrant where the deceased was **below the age of 40 years** . An addition of **25%** where the deceased was **between the age of 40 to 50 years** and **10%** where the deceased was between the age of **50 to 60 years** should be regarded as the necessary method of computation. The established income means the income minus the tax component. 28. In the instant case, at the time of accident, the appellant was aged 42 years. He claimed a monthly income of Rs.5,000/- as autorikshaw driver. The Tribunal fixed the monthly income notionally as Rs.2,000/-, which has already been re-fixed in this appeal as Rs.4,750/-. As already noticed, no reliable materials were placed before the Tribunal to show that, at the time of accident, the appellant had a permanent job. Therefore, he can only be treated as a self employed. In view of the law laid down by **MACA.No.2940 OF 2008** 18 the Apex Court in **Mekala** , **Syed Sadiq** and **Pranay Sethi,** an addition of **25%** of the notional monthly income of the appellant, as re-fixed in this appeal considering the economic conditions prevailing at the time of accident and taking note of the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and in **Syed Sadiq** referred to supra, can be made towards future prospects, since the appellant was between the age of **40 to 50 years** . 29. Therefore, for the purpose of re-fixing the compensation under the head disability compensation, **25%** of the monthly income of the appellant notionally re-fixed in this appeal as Rs.4,750/-, i.e., a sum of Rs.1,187.50 (4,750 x 25/100) has to be added towards future prospects. In the result, the monthly income of the appellant, for the purpose of re-fixing the compensation under the head loss of dependency, is reckoned as Rs.5,937/(4,750 + 1,187). 30. 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]** **MACA.No.2940 OF 2008** 19 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. 31. 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. 32. In the instant case, as on the date of accident, the appellant was aged 42 years. In the light of the decisions of the **MACA.No.2940 OF 2008** 20 Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the multiplier of 15 applied by the Tribunal is not correct and the proper multiplier to be applied is **14** . 33. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.2,16,000/- (2,000 x 12 x 15 x 60/100). Since the monthly income of the appellant is re-fixed notionally as Rs.5,937/-, applying the multiplier of 14 applicable to the age group of the appellant and the percentage of permanent disability as 60%, the compensation under the head permanent disability is re-fixed as Rs.5,98,449/- (5,937 x 12 x 14 x 60/100), resulting an additional compensation of **Rs.3,82,449/-** (5,98,449 – 2,16,000). In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.4,88,599/-** (Rupees four lakhs eighty eight thousand five hundred and ninety nine only) [28,500 + 1,500 + 900 + 250 + 75,000 + 3,82,449] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 286 days in filing this appeal, which was condoned by the order dated 24.10.2016, on condition that the appellant will not be entitled to get interest for the period of delay, in case **MACA.No.2940 OF 2008** 21 enhancement of compensation is granted. The 3[rd] 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. 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 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 insurer within one month from the date of certified copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN** JV ## **JUDGE**