Chandran s/o Kumaran v. Hyderaly K.S., K.M. Abdulkhader, United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** ## **MACA.No.1099 OF 2010** ## **AGAINST THE AWARD IN OP(MV)No.1446/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM** ## **APPELLANT/PETITIONER:** **CHANDRAN S/O KUMARAN, THANDAMPARAMBIL HOUSE, ROYAL STREET, MUKKATTUKARA, NETTISSERY VILLAGE, THRISSUR.** ## **BY ADV. SRI.SHEJI P.ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** **1 HYDERALY K.S. S/O SHAMSUDHEEN KANJIRAMPARAMBIL HOUSE, MANNAMPETTA, KUNNATHUKARA DESOM, OLLUR VILLAGE, THRISSUR TALUK, PIN-680 002. 2 K.M.ABDULKHADER X/377-A, KOTTEKAD P.O. THRISSUR DISTRICT - 680 013. 3 UNITED INDIA INSURANCE CO.LTD. SIMIS COMPLEX, KURUPPAM ROAD, THRISSUR, PIN-680016, POLICY NO. 100606/31405/05440, VALID FROM 5/2/05 TO 4/2/06. R1 BY ADV. SRI.N.S.MOHAMMED USMAN R1 BY ADV. SRI.SANTHEEP ANKARATH R1 BY ADV. SMT.M.SINDHU THANKAM THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1099 of 2010 -:2:- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1446 of 2005 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 22.10.2005, while he was travelling as a pillion rider on a scooter bearing registration No.KL-8/D-926. At the place of accident, the scooter was hit by a car bearing registration No.KL-7/C-3314 (3344), driven by the 1[st] respondent, owned by the 2[nd] respondent, and insured with the 3[rd] respondent. In the accident, the claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.6,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent driver of the car remained absent and he was set exparte. The 2[nd] respondent owner filed written statement admitting the accident; however, denying the negligence alleged against the 1[st ] respondent driver. The 3[rd] respondent insurer filed written statement admitting MACA No.1099 of 2010 -:3:- insurance coverage of the car involved in the accident; however denying negligence alleged against the 1[st] respondent driver. The insurer contended that the accident occurred due to the rash and negligent riding of scooter by its rider. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A11 were marked on the side of the claimant. The respondents have not chosen to adduce any oral or documentary evidence. 4. 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 car by the 1[st] respondent driver. Since insurance coverage of the said vehicle is not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. The Tribunal originally passed an award dated 17.01.2008, awarding a total compensation of Rs.1,52,900/- together with interest at the rate of 7% per annum from the date of petition till realisation, with proportionate cost. The said award was under challenge before this Court in M.A.C.A. No.1602 of 2008. That appeal was allowed by the judgment dated 28.11.2008, remanding the matter to the MACA No.1099 of 2010 -:4:- Tribunal, with a direction to re-fix the compensation, after considering the contentions regarding income, percentage of disability, etc. After the remand, Exts.A12 to A15 were marked on the side of the claimant. The Tribunal passed the impugned award dated 14.10.2009, whereby the claimant is granted an additional compensation of Rs.1,07,400/- (Rs.77,700/- towards medical expenses and Rs.29,700/- towards permanent disability) together with interest at the rate of 7% per annum from the date of petition, i.e., 30.12.2005 till realisation with a cost of Rs.1,500/-, over and above Rs.1,52,900/- originally awarded by the Tribunal, and the 3[rd] respondent insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the MACA No.1099 of 2010 -:5:- compensation awarded by the Tribunal in the impugned award dated 14.10.2009. 8. 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. 9. 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 MACA No.1099 of 2010 -:6:- 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. 10. In the instant case, the compensation originally awarded by the Tribunal under the head loss of earning, and the re-fixed compensation, after the remand, under the heads medical expenses and permanent disability reads thus; |al expenses and permanent|disability reads thus;| |---|---| |Head of claim|Amount awarded<br>(in Rs.)| |Loss of income|10,000/-<br>(2,500 x 4)| |Medical expenses|1,17,700/-<br>(40,050 + 77,700)| |Permanent disability|29,700/-<br>(79,200 – 49,500)| |Total|2,60,300/-<br>(1,52,900 + 1,07,400)| 11. The accident occurred on 22.10.2005. At the time of accident, the appellant was aged 52 years. The appellant claimed a monthly income of Rs.5,000/- as a casual labourer (Painter) in KSRTC. No documents were placed on record to prove the monthly income of the appellant. The appellant has not chosen MACA No.1099 of 2010 -:7:- to mount the box to prove the monthly income. The Tribunal fixed the monthly income notionally as Rs.2,500/- for the purpose of assessing compensation under various heads. 12. 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, MACA No.1099 of 2010 -:8:- which may include the ground realities prevailing at the relevant point of time. 13. 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. 14. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2005, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.5,000/- MACA No.1099 of 2010 -:9:- claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 15. As per medical records, in the accident, the appellant sustained avulsion injury bottom right big toe; lacerated wound right leg with calf muscles exposed; Type III fracture both bone right leg. The appellant had undergone inpatient treatment for a total period of 80 days. Ext.A14 series of medical bills produced after the remand are for a total sum of Rs.77,700/-. 16. The document marked as Ext.X1 is the disability certificate issued by the Medical Board at the Government Medical College, Thrissur in which the permanent disability of the appellant, on account of the injury sustained in the accident, is assessed as 24%. The Tribunal accepted the assessment of permanent disability assessed in Ext.X1, for the purpose of awarding compensation under various heads 17. Towards loss of earning, the Tribunal awarded a sum of Rs.10,000/-, at the rate of Rs.2,500/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from MACA No.1099 of 2010 -:10:- 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 appellant is re-fixed notionally as Rs.5,000/-, the compensation under the head loss of earning is re-fixed as Rs.30,000/- (5,000 x 6), resulting in an additional compensation of **Rs.20,000** /- (30,000 – 10,000). 18. Towards medical expenses, the Tribunal awarded an additional compensation of Rs.77,700/-, covered by Ext.A14 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. 19. 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 MACA No.1099 of 2010 -:11:- 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. 20. 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. 21. In the instant case, as on the date of accident, the appellant was aged 52 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 **11** applied by the Tribunal is MACA No.1099 of 2010 -:12:- correct and proper. 22. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.79,200/- (2,500 x 12 x 11 x 24/100). Since the monthly income of the appellant is re-fixed notionally as Rs.5,000/-, applying the multiplier of 11 applicable to the age group of the appellant and the percentage of permanent disability as 24%, the compensation under the head permanent disability is re-fixed as Rs.1,58,400/- (5,000 x 12 x 11 x 24/100), resulting an additional compensation of **Rs.79,200/-** (1,58,400 – 79,200). 23. The Tribunal awarded no compensation towards loss of amenities. Considering the nature of injuries sustained and 24% permanent disability assessed in Ext.X1 disability certificate, the appellant is granted a sum of **Rs.25,000/-** as compensation under this head. 24. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,24,200/-** (Rupees one lakh twenty four thousand and two hundred only) [20,000 + 79,200 + 25,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition MACA No.1099 of 2010 -:13:- 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 Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant/claimant shall furnish 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** vps