Bushara K.M v. M.K. Jithin, Abdul Salam Ananganady & United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941** ## **MACA.No.3003 OF 2015** **AGAINST THE AWARD IN OPMV 917/2007 DATED 17-06-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/PETITIONER:** **BUSHARA K.M AGED 33 YEARS W/O.LATHEEF, KATTUMUNDA HOUSE, MEPADAM P.O., MAMPAD AMSOM, NILAMBUR TALUK, MALAPPURAM DISTRICT-676542.** **BY ADV. SRI.K.M.MOHAMED ABDURAHIMAN** ## **RESPONDENTS/RESPONDENTS:** - **1 M.K.JITHIN S/O.M.K.KRISHNAN, MENETHAL HOUSE, P.O.METHALA, MALAPPURAM DT.683545(DRIVER).** - **2 ABDUL SALAM ANANGANADY QUARTERS, NEAR MUNDUPARAMBA, KSEB STATION, P.O.MALAPPURAM-676505 (OWNER).** - **3 UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, KILIYAMANNIL PALACE, UP HILL, MALAPPURAM PIN-676505.** **R1 & R2 BY ADV. SRI.C.T.BASHEER R3 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3003 OF 2015** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.3003 of 2015 on the file of the Motor Accidents Claims Tribunal, Manjeri, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 04.04.2007, while she was travelling in an autorikshaw bearing registration No.KL-10/G-4987. At the place of accident, the autorikshaw was hit by a lorry bearing registration No.KL-10/X-7309 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent driver remained absent and he was set ex parte. Though the 2[nd] respondent entered appearance, no written statement has been filed. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the lorry involved in the accident; however, denying the negligence alleged against its **MACA.No.3003 OF 2015** 3 driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant and the appellant was examined as PW1. The document marked as Ext.X1 is the disability certificate issued by the District Medical Board at General Hospital, Manjeri, assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident, as 10%. 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 lorry 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.2,32,186.04 (which was rounded off to Rs.2,32,200/-) together with interest at the rate of 9% per annum from the date of petition till date of deposit, with proportionate cost, and the insurer was directed to satisfy the award. **MACA.No.3003 OF 2015** 4 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, learned counsel for respondents 1 and 2 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 **MACA.No.3003 OF 2015** 5 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; |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(in Rs.)|Amount<br>awarded<br>(in Rs.)|Basis-vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|48,000|27,000|| |2|Partial loss of earning|Nil|Nil|Nil| |3|Transport to hospital|Nil|3,500|| |4|Bystander expenses|Nil|6,000|(250x4)| |5|Damage to clothing and<br>articles|Nil|1,000|| **MACA.No.3003 OF 2015** 6 |6|Extra nourishment|15000|5,000|| |---|---|---|---|---| |7|Medical expenses|80000|77,886|Ext.A12 series| |8|Pain and suffering|50000|20,000|| |9|Continuing or permanent<br>disability, if any|30000|91,800|| |10|Loss of earning power|90000|Nil|| ||TOTAL|3,13,000<br>claim<br>limited to<br>3,00,000|2,32,186.04<br>rounded to<br>2,32,200|| 12. The accident occurred on 04.04.2007. At the time of accident, the appellant was aged 28 years. She claimed a monthly income of Rs.4,500/- as a tailor. The Tribunal accepted the said amount as the monthly income of the appellant, for the purpose of assessing compensation under various heads. 13. The document marked as Ext.A2 is the accident register cum wound certificate and Exts.A4 to A8 are the discharge summaries. Ext.A9 is the outpatient ticket and Ext.A10 is the scan report. As per medical records, the appellant sustained lacerated wound on left upper lip; fracture of right shaft; fracture of left tibia; laceration on left side of gum; loss of two teeth on left upper jaw; laceration on lower lip; fracture of two portions of right hand; injury left side of chill; contusion on head; injury on chest; and contusion both eyes. She had **MACA.No.3003 OF 2015** 7 undergone inpatient treatment for a total period of 24 days. 14. The document marked as Ext.X1 is the disability certificate issued by the Medical Board at District Hospital, Manjeri, in which the permanent disability of the appellant on account of the injuries sustained in the accident is assessed as 10%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 15. Towards loss of earning, the Tribunal awarded a sum of Rs.27,000/-, at the rate of Rs.4,500/- for a period of 6 months. 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. 16. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 24 days. The accident is of the year 2007. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,500/-. Considering the nature of injuries sustained and the treatment the appellant **MACA.No.3003 OF 2015** 8 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. 17. Towards bystander expenses the Tribunal awarded a sum of Rs.6,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.5,000/-. The accident is of the year 2007 and the appellant had undergone inpatient treatment for 24 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.1,000/-. Considering the fact that the accident is of the year 2007, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. Considering the nature **MACA.No.3003 OF 2015** 9 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. 20. 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 **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 **MACA.No.3003 OF 2015** 10 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. 21. 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. 22. 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 **17** applied by the Tribunal is correct and proper. 23. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.91,800/- (4,500 x 12 x 17 x 10/100). The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 24. The Tribunal awarded no compensation towards loss of **MACA.No.3003 OF 2015** 11 amenities. In Ext.X1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. Considering the nature of injuries sustained and 10% permanent disability on account of those injuries, as assessed in Ext.X1 disability certificate, this Court deem it appropriate to grant a sum of **Rs.10,000/-** towards loss of amenities. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.10,000/-** (Rupees ten thousand only) 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 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 **MACA.No.3003 OF 2015** 12 Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall provide her bank account details 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/-** JV **ANIL K.NARENDRAN JUDGE**