Chacko and Others v. Kunjumol and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941** ## **MACA.No.882 OF 2008** **AGAINST THE AWARD IN OP(MV)NO.492/1998 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER:** |**1**|**CHACKO**| |---|---| ||**AGED 58 YEARS, S/O.MIKHAEL,**| ||**MOONUKOOTTUNKAL HOUSE, NEAR KALLATH TEMPLE,, NETTOOR,**| ||**(VIA) MARADU. (DIED)**| ||**ADDITIONAL APPELLANTS 2 TO 7 IMPLEADED**| |**2**|**MARY CHACKO**| ||**AGED 74 YEARS**| ||**W/O LATE CHACKO, MOONUKOOTTUNKAL HOUSE,**| ||**NEAR KALLATH TEMPLE, NETTOOR,**| ||**VIA MARADU, PIN 682304**| |**3**|**THANKACHAN**| ||**AGED 51 YEARS**| ||**S/O LATE CHACKO, MOONUKOOTTUNKAL HOUSE,**| ||**NEAR KALLATH TEMPLE, NETTOOR,**| ||**VIA MARADU, PIN 682304**| |**4**|**MERCY**| ||**AGED 49 YEARS**| ||**D/O LATE CHACKO, MOONUKOOTTUNKAL HOUSE,**| ||**NEAR KALLATH TEMPLE, NETTOOR, VIA MARADU, PIN 682304,**| ||**NOW RESIDING AT 27/3091, KARIPPAD**| |**5**|**SHERLY**| ||**AGED 47 YEARS**| ||**D/O LATE CHACKO, VALIYAVEETIL HOUSE,**| ||**H.NO.20/952 C, PALLURUTHY, KOCHI-6**| |**6**|**LEENA, AGED 44 YEARS**| ||**D/O LATE CHACKO, MALIYAKKAL HOUSE,**| ||**ERAMALLOOR P O, CHERTHALA, ALAPPUZHA 688537**| |**7**|**ANTONY, AGED 41 YEARS**| ||**S/O LATE CHACKO, MOONUKOOTTUNKAL HOUSE,**| ||**NEAR KALLATH TEMPLE, NETTOOR,**| ||**VIA MARADU, PIN 682304**| MACA No.882 of 2008 2 **(ADDL APPELLANTS 2 TO 7 IMPLEADED AS PER ORDER DTD 31/10/19 IN IA NO.1/19 IN MACA NO 882/08)** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI** ## **RESPONDENTS/RESPONDENTS:** - **1 KUNJUMOL, W/O.SHAMSUDEEN, KALARICKALPARAMBIL HOUSE,, NETTOOR P.O., (VIA) MARADU,, ERNAKULAM DISTRICT.** - **2 FEROS KHAN K.S., S/O.SHAMSUDEEN KALARICKALPARAMBIL HOUSE,, NETTOOR P.O. (VIA) MARADU., ERNAKULAM DIST.** - **3 THE NATIONAL INSURANCE COMPANY LIMITED P.B.NO.149, MATTANCHERY, COCHIN 682 002.** - **4 K.RAJENDRAN, S/O.KESAVAN KONATTUTHARA HOUSE, NORTH OF MUKKANNAM JUNCTION,, UZHUVAMMURI KARA, VAYALAR EAST VILLAGE,, CHERTHALA, ALAPPUZHA DIST,.** - **5 SIVAKUMAR S/O.PARAMESWARAN PILLAI, KRISHNAPURAM HOUSE, WEST OF MATTAVANA JUNCTION, VADAKKUMURI VILLAGE,, CHERTHALA TALUK, ALAPPUZHA DIST.** - **6 THE UNITED INDIA INSURANCE COMPANY LIMITED, REPRESENTED BY ITS DIVISIONAL MANAGER, COCHIN 682 016.** **R5 BY ADV. SMT.P.C.JEEVA R3 BY ADV. SMT.SARAH SALVY R5 BY ADV. SRI.T.A.SHAJI R1 BY ADV. SRI.P.M.ZIRAJ** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.882 of 2008 3 ## **JUDGMENT** The original appellant is the claimant in O.P(MV)No.492 of 1998 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam, 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 15.11.1997, while he was travelling in a taxi car bearing registration No.KL-7/B-6252, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the said vehicle was hit by another car bearing registration No.KL-7/D-234 owned by the 4[th] respondent, driven by the 5[th] respondent and insured with the 6[th] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car bearing registration No.KL-7/B-6252 by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 filed written statement denying negligence alleged against the 2[nd] respondent driver of car bearing registration No.KL-7/B-6252. They MACA No.882 of 2008 4 contended that the accident occurred due to the rash and negligent driving of car bearing registration No.KL-7/D-234 by the 5[th] respondent driver. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the car bearing registration No.KL-7/B-6252; however, denying negligence alleged against the 2[nd] respondent driver. The insurer contended that the accident occurred due to the negligence on the part of the 5[th] respondent driver of car bearing registration No.KL-7/D-234. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 3. Respondents 4 and 5 contended that the accident happened due to the rash and negligent driving of car bearing registration No.KL-7/B-6252 by the 2[nd] respondent driver. The 6[th] respondent insurer filed written statement admitting insurance coverage of the car bearing registration No.KL-7/D-234 involved in the accident; however, denying negligence alleged against its driver. The insurer contended that the accident occurred due to the negligence on the part of 2[nd] respondent driver of car bearing registration No.KL-7/B-6252. The insurer disputed the age, MACA No.882 of 2008 5 occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was tried along with connected matters. Exts.A1 to A44 were marked on the side of the claimants. On the side of the respondents, Exts.B1 to B7 were marked. 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 car bearing registration No.KL-7/B-6252 by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. However, on a finding that, as on the date of accident the 2[nd] respondent was driving the car without a valid badge, the 3[rd] respondent insurer was granted recovery right to proceed against the 1[st] respondent owner and the 2[nd] respondent driver for recovering the amount of compensation paid to the appellant/claimant. Under various heads, the Tribunal awarded a total compensation of Rs.93,913/-, together with interest at the MACA No.882 of 2008 6 rate of 7% per annum from the date of petition till realisation, with proportionate cost, and the 3[rd] insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the original appellant/claimant filed this appeal before this Court. Pending appeal, the original appellant died and his legal representatives are impleaded as additional appellants 2 to 7. 7. Heard the learned counsel for additional appellants 2 to 7, learned Standing Counsel for the 3[rd] respondent, learned counsel for the 5[th] respondent and also the learned Standing Counsel for the 6[th] respondent. 8. The issue that arises for consideration in this appeal is as to whether additional appellants 2 to 7 are 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 MACA No.882 of 2008 7 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 compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. MACA No.882 of 2008 8 ## 11. In the instant case, the compensation awarded by the ## Tribunal under various heads reads thus; |unal under various heads reads thus;|| |---|---| |Cost of extra nourishment and wages to<br>bystanders|2,300| |Medical bills|26,313| |Transport expenses|500| |Loss of earnings|6,000| |Pain and sufferings|12,000| |Compensation for disability|46,800| |TOTAL|93,913| 12. The accident occurred on 15.11.1997. At the time of accident, the original appellant was aged 48 years. He claimed a monthly income of Rs.2,000/- as mason. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.1,500/-, 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 MACA No.882 of 2008 9 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. 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 MACA No.882 of 2008 10 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 1997, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it appropriate to re-fix the monthly income of the original appellant notionally as Rs.1,600/-, 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 summary. In the accident, the original appellant sustained comminuted fracture upper 3[rd] of shaft of left tibia and fibula, fracture right clavicle, fracture 3[rd] and 4[th] ribs right side with surgical emphysema, cerebral concussion, bleeding from the right ear, lacerated wound left knee and head injury. He had undergone inpatient treatment for 23 days. Ext.A9 series of medical bills are for a sum of Rs.26,313/-. MACA No.882 of 2008 11 17. Ext.A8(b) is the disability certificate issued by an individual doctor, in which the permanent disability of the original appellant, on account of the injuries sustained in the accident, is assessed as 20%. The Tribunal accepted the percentage of permanent disability assessed in Ext.A8(b), 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.1,500/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the original appellant is re-fixed notionally as Rs.1,600/-, the compensation under the head loss of earning is re-fixed as Rs.9,600/- (1,600 x 6), resulting an additional compensation of **Rs.3,600/-** (9,600 – 6,000). 19. On account of the injuries sustained in the accident, the original appellant had undergone inpatient treatment for 23 days. The accident is of the year 1997. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the MACA No.882 of 2008 12 nature of injuries sustained and the treatment the original appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.2,000/-, resulting an additional compensation of **Rs.1,500/-** (2,000 - 500). 20. Towards bystander expenses and extra nourishment, the Tribunal awarded a consolidated amount of Rs.2,300/-. The accident is of the year 1997 and the original appellant had undergone inpatient treatment for 23 days. Considering the nature of injuries sustained and the treatment he had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.3,450/- (150 x 23), and the compensation under the head extra nourishment is refixed as Rs.2,300/- (100 x 23), resulting an additional compensation of **Rs.3,450/-** [(3,450 + 2,300) – 2,300)]. 21. Towards medical expenses, the Tribunal awarded a sum of Rs.26,313/-, covered by Ext.A9 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. 22. As compensation towards pain and suffering, the MACA No.882 of 2008 13 Tribunal awarded a sum of Rs.12,000/-. 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 refixed as Rs.15,000/-, resulting an additional compensation of **Rs.3,000/-** (15,000 – 12,000). 23. 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 MACA No.882 of 2008 14 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. 24. 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. 25. In the instant case, as on the date of accident, the appellant was aged 48 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 **13** applied by the Tribunal is correct and proper. 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.46,800/- (1,500 x 12 x 13 x 20/100). Since the monthly income of the appellant is re-fixed notionally as Rs.1,600/-, applying the multiplier of 13 applicable to the age group of the appellant and the percentage of MACA No.882 of 2008 15 permanent disability as 20%, the compensation under the head permanent disability is re-fixed as Rs.49,920/- (1,600 x 12 x 13 x 20/100), resulting an additional compensation of **Rs.3,120/-** ( 49,920 - 46,800). 27. Towards loss of amenities the Tribunal awarded no amount. In Ext.A8(b) disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 20%. Considering the nature of injuries sustained and 20% permanent disability on account of those injuries, as assessed in Ext.A8(b) disability certificate, this Court deem it appropriate to grant a sum of **Rs.25,000/-** towards loss of amenities. 28. The Tribunal granted recovery right to the 3[rd] respondent insurer, since the 2[nd] respondent driver was not holding a valid badge to drive a taxi car. As evident from Ext.B7, the 2[nd] respondent was holding a valid driving licence to drive a light motor vehicle. In view of the law laid down in the Apex Court in **Mukund Dewangan v. Oriental Insurance Company Limited [2017 (3) KLT 1000]** a driver who is holding licence to drive 'light motor vehicle' can drive a transport vehicle, the MACA No.882 of 2008 16 unladen weight of which does not exceed 7,500 kg, for which no separate endorsement is required. The law laid down by the Apex Court was followed by this Court in **Shaji v. Pradeesh [2018 (2) KLT 136]** . Therefore, the 3[rd] respondent insurer to satisfy the additional compensation granted in this appeal, which cannot be recovered from the 1[st] respondent owner or the 2[nd] respondent driver. 29. In the result, additional appellants 2 to7/legal representatives of the original appellant/claimant will be entitled for payment of an additional compensation of **Rs.39,670/-** (Rupees Thirty nine thousand six hundred and seventy only) (3,600 + 1,500 + 3,450 + 3,000 + 3,120 + 25,000) in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The additional compensation granted in this appeal shall be paid to additional 2[nd] appellant, who is the wife of the original appellant/claimant. 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 claimant MACA No.882 of 2008 17 towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to additional 2[nd] appellant 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. Additional 2[nd] appellant shall provide her 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 certified copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K. NARENDRAN** JV **JUDGE**