Biju Kumar @ Biju v. Philip Alexander, Alex Joseph, The Oriental Insurance Co. Ltd., Biji Chacko

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941** ## **MACA.No.2408 OF 2008(Y)** **AGAINST THE AWARD IN OP(MV)NO.2504/2001 DATED 02-09-2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/CLAIMANT:** **BIJU KUMAR @ BIJU, VALIYATHOTTATHIL HOUSE, NEAR POST OFFICE, EARTHU VADAKARA P.O., VELLAVOOR VILLAGE, MANIMALA.** **BY ADV. SRI.SURIN GEORGE IPE** ## **RESPONDENTS/RESPONDENTS:** |**1**|**PHILIP ALEXANDER, KIZHAKKEKAVIL VEEDU,**| |---|---| ||**PALLICKACHIRA P.O., PAYIPPADU.**| |**2**|**ALEX JOSEPH, KADANTHOTTU VEETTIL**| ||**VANDIPETTA BHAGOM, VAZHAPPALLY PADINJARU VILLAGE,**| ||**CHANGANACHERRY, NOW RESIDING AT C/O.VIDYADHARAN,**| ||**LAYIKKADU P.O., CHANGANACHERRY.**| |**3**|**THE ORIENTAL INSURANCE CO.LTD.**| ||**KOTTAYAM.**| |**4**|**BIJI CHACKO MUTTATHETTU HOUSE**| ||**PODIPARA CHOOL NEAR PAYIPPADU KARA,, PAYIPPADU**| ||**VILLAGE.**| **R3 BY ADV. SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2408 of 2008(Y) 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2504 of 2001 on the file of the Motor Accidents Claims Tribunal, Kottayam, 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 13.07.1999, while he was travelling as pillion rider on a scooter bearing registration No.KEK-599. At the place of accident, the scooter was hit by a bus bearing registration No.KL-6/6915 owned by the 1[st] respondent, possessed by the 4[th] respondent, driven 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 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,35,000/- under various heads, which was limited to Rs.3,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1, 2 and 4 remained absent and they were set ex parte. 3. The 3[rd] respondent insurer of the bus filed written MACA No.2408 of 2008(Y) 3 statement contending that, though the bus involved in the accident was issued with an insurance policy for the period from 15.01.1999 to 14.01.2000, the cheque dated 15.01.1999 for Rs.12,999/- drawn on SBT, Paipadu Branch, issued by the insured towards premium dishonoured on presentation. Hence, they cancelled the policy and the matter was duly intimated to the 1[st] respondent. Moreover, the driver of the bus was not holding a valid and effective driving licence or badge at the time of accident. The insurer alleged negligence against the rider of the motorcycle and disputed the amount of compensation claimed. 4. Before the Tribunal, Exts.A1 to A16 were marked on the side of the appellant/claimant. On the side of the respondents, Exts.B1 to B7 were marked and RW1 was examined. 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 and the insurer was held liable to indemnify the insured. Since dishonour of cheque and the consequential cancellation of Ext.B1 insurance policy was proved by MACA No.2408 of 2008(Y) 4 examining RW1, the Tribunal held that the insurer is entitled for recovery of the amount of compensation paid to the appellant/claimant by proceeding against the 1[st] respondent owner. Under various heads, the Tribunal awarded a total compensation of Rs.59,154/-, together with interest at the rate of 6% per annum from the date of petition till date of deposit, 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 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 MACA No.2408 of 2008(Y) 5 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 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 MACA No.2408 of 2008(Y) 6 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; |Head of Claim|Amount awarded| |---|---| |Transportation|3,594/-| |Damage to clothing|500/-| |Bystander's expenses|1,500/-| |Extra nourishment|1,000/-| |Loss of earning|7,500/-| |Medical expenses|9,060/-| |Pain and suffering|18,000/-| |Loss of amenities|18,000/-| |Total|59,154/-| 12. The accident occurred on 13.07.1999. At the time of accident, the appellant was aged 25 years. The appellant claimed a monthly income of Rs.7,000/- as Diesel Mechanic. Ext.A16 is the certificate of employment issued by his employer, as per which his salary was Rs.2,500/- per month. The Tribunal fixed the monthly income of the appellant notionally as Rs.2,500/-, for the purpose of assessing compensation under various heads. 13. The document marked as Ext.A6 is a copy of wound certificate; Ext.A7 is a copy of discharge certificate; MACA No.2408 of 2008(Y) 7 and Ext.A8 is a copy of discharge card issued from Medical College Hospital, Kottayam. As evident from the medical records, in the accident, the appellant sustained open ankle injury with crushing and loss of extensor digitorum longus, extensor hallucis longus and other tendons on the anterior aspect of the ankle joint right, loss of tendons on right foot, injury on the right hand, and multiple abrasion. The appellant had undergone inpatient treatment for a period of 9 days. Ext.A12 series of medical bills are for Rs.9,051.96/and Ext.A13 series of trip sheets are for a sum of Rs.3,594/-. 14. The document marked as Ext.A9 is the disability certificate issued by a Lecturer in Orthopaedics at the Medical College, Kottayam, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 11%. The appellant has not chosen to prove Ext.A9 certificate by examining the doctor concerned. The Tribunal, instead of granting compensation under the head permanent disability, awarded a sum of Rs.18,000/- under the head loss of amenities and pleasure of enjoyment in life, stating that the claimant has no case MACA No.2408 of 2008(Y) 8 that on account of the disability he lost his job. The nature of disabilities noted in Ext.A9 disability certificate are foot drop due to loss of tendons – 5%; and partial ankylosis ankle from 90 degree ankle to 125 degree plantar flexion – 6%. Considering the nature of injuries sustained and also the disabilities noted in the Ext.A9, this Court deem it appropriate to take 5% permanent disability, for the purpose of awarding compensation under the head permanent disability. 15. Towards loss of earning, the Tribunal awarded a sum of Rs.7,500/-, at the rate of Rs.2,500/- 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 5 months. Accepting the notional monthly income of the appellant as Rs.2,500/-, as awarded by the Tribunal, the compensation under the head loss of earning is re-fixed as Rs.12,500/(2,500 x 5), resulting an additional compensation of **Rs.5,000/-** (12,500 – 7,500). 16. On account of the injuries sustained in the MACA No.2408 of 2008(Y) 9 accident, the appellant had undergone inpatient treatment for 9 days. The accident is of the year 1999. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,594/- covered by Ext.A13 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. 17. Towards bystander expenses, the Tribunal awarded a sum of Rs.1,500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 1999 and the appellant had undergone inpatient treatment for 9 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 under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 18. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 1999, the compensation MACA No.2408 of 2008(Y) 10 under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 19. Towards medical expenses, the Tribunal awarded a sum of Rs.9,060/-, covered by Ext.A12 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. 20. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.18,000/-. 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.20,000/-, resulting an additional compensation of **Rs.2,000/-** (20,000 – 18,000) under this head. 21. 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.** MACA No.2408 of 2008(Y) 11 **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. 22. 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. MACA No.2408 of 2008(Y) 12 23. In the instant case, as on the date of accident, the appellant was aged 25 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 to be applied is **18** . 24. The Tribunal awarded no compensation under the head permanent disability. Instead the Tribunal awarded a sum of Rs.18,000/- under the head loss of amenities and pleasure of enjoyment in life. The Tribunal took the monthly income of the appellant notionally as Rs.2,500/-. Applying the multiplier of 18 applicable to the age group of the appellant and taking the percentage of permanent disability as 5%, he is granted a sum of Rs.27,000/- (2,500 x 12 x 18 x 5/100) under the head permanent disability. Considering the nature of disabilities noted in Ext.A9 disability certificate, the appellant is granted a sum of Rs.7,500/- as compensation under the head loss of amenities. Deducting Rs.18,000/- awarded by the Tribunal under the head loss of amenities and pleasure of enjoyment in life, the appellant will be entitled for an additional compensation of **Rs.16,500/-** [(27,000 + 7,500) – 18,000] under the heads MACA No.2408 of 2008(Y) 13 ## permanent disability and loss of amenities. 25. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.23,750/-** (Rupees Twenty three thousand seven hundred and fifty only) [5,000 + 250 + 2,000 + 16,500] 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 424 days in filing this appeal, which was condoned by the order dated 24.01.2020 in C.M.Appln.No.2473 of 2008, subject to the condition that in case enhanced compensatin is granted in this appeal, the appellant shall not be entitled for interest on the said amount for the period of delay. 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 3[rd] respondent insurer will be entitled to recover the said amount by proceeding against the 1[st] respondent owner. The disbursement of additional MACA No.2408 of 2008(Y) 14 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 insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV/1/2