Chandran and Others v Cherian and The New India Assurance 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.2493 OF 2009** **AGAINST THE AWARD IN OP(MV)No.128/2001 DATED 28-02-2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, WAYANAD, KALPETTA** ## **APPELLANT/PETITIONER:** **1 CHANDRAN AGED 49 YEARS ANTHOORKUNNATH HOUSE, PUTHIYAPADAM, CHIRAKKARA P.O., THALAPUZHA, MANANTHAVADY TALUK, WAYANAD DISTRICT.** **2 JISHANTH S/O.CHANDRAN, AGED 22 YEARS, ANTHOORKUNNATH HOUSE, PUTHIYAPADAM, CHIRAKKARA P.O., THALAPUZHA,MANANTHAVADY TALUK, WAYANAD DISTRICT. 3 NIMISHA D/O.CHANDRAN, AGED 17 YEARS ANTHOORKUNNATH HOUSE, PUTHIYAPADAM,CHIRAKKARA P.O., THALAPUZHA,MANANTHAVADY TALUK, WAYANAD DISTRICT, (3RD APPELLANT BEING MINOR,REP. BY NEXT FRIEND AND GUARDIAN,FATHER, IST APPELLANT). BY ADV. SRI.N.J.ANTONY** MACA No.2493 of 2009 -:2:- ## **RESPONDENTS/RESPONDENTS:** **1 CHERIAN AGED 26 YEARS, S/O.ANTONY, PALAMOOTTIL HOUSE, MALAVAYAL, NENMENI, S.BATHERY TALUK, WAYANAD DISTRICT. (DRIVER CUM OWNER OF THE AUTORICKSHAW NO.KL-12A/3487. D.L.NO.NOT KNOWN). 2 THE NEW INDIA ASSURANCE CO. LTD. KALPETTA. (POLICY NO.3176060472581. VALID UP TO 31.1.2001). R2 BY ADV. SRI.P.K.BABU, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2493 of 2009 -:3:- ## **JUDGMENT** The appellants are the legal heirs (husband, son and daughter) of the claimant in O.P(MV)No.128 of 2001 on the file of the Motor Accidents Claims Tribunal, Wayanad, Kalpetta, 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 28.02.2007 while she was travelling in an autorickshaw bearing registration No.KL-12/A-3487, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. At the place of accident, the autorickshaw capsized and the claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cumdriver filed written statement contending that the accident occurred due to brake failure of the autorickshaw. He disputed the claim made under various heads. 3. The 2[nd] respondent insurer filed written statement admitting the insurance coverage of the autorickshaw involved in MACA No.2493 of 2009 -:4:- the accident; however denying negligence alleged against the 1[st] respondent driver. The insurer disputed the claim made under various heads. 4. Before the Tribunal, Exts.A1 to A9 were marked on the side of the claimant. Both sides have not chosen to adduce any oral evidence. 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 autorickshaw by the 1[st] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.44,950/-, together with interest at the rate of 6% per annum from the date of petition till payment. Subsequent to the award, the claimant died on 24.08.2007. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants, who are the legal heirs of the deceased claimant, are before this Court in this appeal. 7. Heard the learned counsel for the appellants and also the learned Standing Counsel for the 2[nd] respondent insurer. MACA No.2493 of 2009 -:5:- Since insurance coverage of the autorickshaw involved in the accident is admitted by the 2[nd] respondent insurer, service of notice on the 1[st] respondent owner-cum-driver was dispensed with, by the order of this Court dated 03.12.2019. 8. The issue that arises for consideration in this appeal is as to whether the appellants 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 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 MACA No.2493 of 2009 -:6:- 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; ||Heads of claim|Amount awarded| |---|---|---| |1|Loss of earning|6,700/-<br>(101 days)| |2|Transportation to hospital|700/-| |3|Extra nourishment|500/-| |4|Damage to clothing and articles|250/-| |5|Bystander’s expenses|1,000/-| |6|Pain and suffering|5,000/-| |7|Disability compensation|20,400/-<br>(2,000 x 12 x 17 x 5/100)| |8|Medical expenses|10,400/-<br>(Ext.A9 bills for<br>Rs.10381.48| ||Total amount|44,950**/-**| 12. The accident occurred on 07.11.2000. At the time of accident, the claimant was aged 30 years. She claimed a monthly income of Rs.3,000/- as a coolie. The claimant has not MACA No.2493 of 2009 -:7:- chosen to mount the box. The Tribunal fixed the monthly income of the claimant, 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 the relevant MACA No.2493 of 2009 -:8:- 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 2000, 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 claimant notionally as Rs.2,500/-, for the purpose MACA No.2493 of 2009 -:9:- of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound certificate and Ext.A4 is the treatment certificate. As borne out from medical records, in the accident, the claimant sustained spine compression, myelopathy C8 with neurological deficits. She had undergone inpatient treatment for a period of 121 days. The document marked as Ext.A4 is the treatment certificate, as per which the claimant sustained posterior fracture dislocation of C6-C7 vertebra, which was reduced by skull traction. Ext.A9 series of medical bills are for a sum of Rs.10,400/-. 17. In Ext.A3 the disability certificate issued by an Assistant Professor at the Medical College Hospital, Kozhikode the permanent disability of the claimant, on account of the injuries sustained in the accident, is assessed as 10%. No steps were taken to prove Ext.A3 disability certificate by examining the doctor concerned. The Tribunal, instead of discarding the assessment of disability in Ext.A3 in toto, took the percentage of disability as 5%. Considering the nature of injuries sustained and the disabilities noted in Ext.A3, the procedure adopted by the Tribunal cannot be said to be arbitrary or illegal, warranting interference in this appeal MACA No.2493 of 2009 -:10:- 18. Towards loss of earning, the Tribunal awarded a sum of Rs.6,700/-, for a period of 101 days. Considering the nature of injuries sustained and the treatment the claimant had undergone, as borne out from medical records, the period of nearly 4 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the claimant is re-fixed notionally as Rs.2,500/-, the compensation under the head loss of earning is re-fixed as Rs.15,000/- (2,500 x 6), resulting an additional compensation of **Rs.8,300/-** (15,000 – 6,700). 19. On account of the injuries sustained in the accident, the claimant had undergone inpatient treatment for 121 days. The accident is of the year 2000. Towards transportation to hospital, the Tribunal awarded a sum of Rs.700/-. Considering the nature of injuries sustained and the treatment the claimant had undergone, the compensation under this head is re-fixed as Rs.2,000/-, resulting an additional compensation of **Rs. 1,300/-** (2,000 – 700). 20. Towards bystander expenses the Tribunal awarded a sum of Rs.1,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year MACA No.2493 of 2009 -:11:- 2000 and the claimant had undergone inpatient treatment for 121 days. Considering the nature of injuries sustained and the treatment the claimant had undergone, the compensation under the head bystander expenses is re-fixed as Rs.18,150/- (150 x 121), resulting an additional compensation of **Rs.17,150/-** (18,150 – 1,000). The compensation under the head extra nourishment is re-fixed as Rs.12,100/- (100 X 121), resulting an additional compensation of **Rs.11,600/-** (12,100 - 500). 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.250/-. The accident is of the year 2000. Therefore, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.10,400/-, 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained and the treatment the claimant had MACA No.2493 of 2009 -:12:- undergone, the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.30,000/-, resulting an additional compensation of **Rs.25,000/-** (30,000 – 5,000). 24. 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 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. MACA No.2493 of 2009 -:13:- 25. 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. 26. In the instant case, as on the date of accident, the claimant was aged 30 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. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.20,400/- (2,000 x 12 x 17 x 5/100). Since the monthly income of the claimant is re-fixed notionally as Rs.2,500/-, applying the multiplier of 17 applicable to the age group of the claimant and the percentage of permanent disability as 5%, the compensation under the head permanent disability is re-fixed as Rs.25,500/- (2,500 x 12 x 17 x 5/100), resulting an additional compensation of **Rs.5,100/-** (25,500 – 20,400) MACA No.2493 of 2009 -:14:- 28. The Tribunal awarded no amount towards loss of amenities. Considering the nature of injuries sustained by the claimant and 5% permanent disability on account of those injuries, as taken by the Tribunal, this Court deem it appropriate to grant a sum of **Rs.5,000/-** as compensation under this head. 29. In the result, the appellants/legal heirs of the deceased claimant will be entitled for payment of an additional compensation of **Rs.73,950/-** (Rupees seventy three thousand nine hundred and fifty only) [8,300 + 1,300 + 17,150 + 11,600 + 500 + 25,000 + 5,100 + 5,000] 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 825 days in filing this appeal, which was condoned by the order dated 03.12.2019, subject to the condition that, in case enhanced compensation is awarded, the appellants will not be entitled for interest for the said amount for the period of delay. The amount of compensation shall be apportioned among the appellants, equally. The 2[nd] 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 MACA No.2493 of 2009 -:15:- any, of the claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the appellants 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 appellants shall provide their 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** vps