C.K. Paulose v. L. Arivalagan and M/s R.P. Transporters and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941** ## **MACA.No.821 OF 2010** **AGAINST THE AWARD IN OPMV 2600/2003 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, TRICHUR** ## **APPELLANT:** **C.K.PAULOSE, S/O.KURIYAN, CHERUVATHOOR HOUSE, P.O.MUNDATHICODE, THRISSUR. BY ADV. SRI.SHEJI P.ABRAHAM** ## **RESPONDENTS:** |**1**|**L.ARIVALAGAN,**| |---|---| ||**S/O.KURUDATHEVAR, 41/03 PARIYAKULAM,**| ||**KATTAR STREET, THENNI DISTRICT.**| |**2**|**MS.R.P.TRANSPORTERS, RAVI, LABB I PET**| ||**VIJAYAWADA 10.**| |**3**|**THE ORIENTAL INSURANCE CO.LTD.**| ||**D.O.2 P.B.NO.782, SIDHARTHA WOMENS COLLEGE**| ||**ROAD, VIJAYAWADA P.NO.5573/02.**| ||**R1 BY ADV. SRI.P.JAYASANKAR**| ||**R3 BY ADV. SRI.N.S.NAJEEB**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.821 OF 2010 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2600 of 2003 on the file of the Additional Motor Accidents Claims Tribunal, Thrissur, 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 07.02.2003, while he was riding a motorcycle bearing registration No.KL-08/W-1033. At the place of accident, the motorcycle was hit by a lorry bearing registration No.KA-21/B5587 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of offending vehicle by the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] and 2[nd] respondents remained absent and they were set ex-parte. The 3[rd] respondent/insurer filed written statement admitting the insurance coverage of the lorry involved in the accident; 3 MACA No.821 OF 2010 however, denying the negligence alleged against the 1[st] respondent driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. The document marked as Ext.A11 is the disability certificate issued by the Medical Board assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the motor accident. 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 offending lorry by the 1[st] respondent driver. Since insurance coverage of the offending 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.78,100/-, together with interest at the rate of 7% per annum from the date of petition till date of deposit, with proportionate cost of 4 MACA No.821 OF 2010 Rs.1,500/- and the 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. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 was dispensed with, by the order of this Court dated 16.10.2019. 7. 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. 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 5 MACA No.821 OF 2010 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 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 awarded by 6 MACA No.821 OF 2010 ## the Tribunal under various heads reads thus; ||Head of the claim|Amount claimed|Amount awarded| |---|---|---|---| |1|Loss of earning (total)|25,000/-|7,500/-| |2|Loss of earning (partial)|15,000/-|| |3|Transport to hospital|15,000/-|1,500/-| |4|Extra nourishment|20,000/-|500/-| |5|Damage to clothing|10,000/-|500/-| |6|Treatment expenses|50,000/-|25,000/-| |7|Personal assistance|10,000/-|1,500/-| |8|Pain and suffering|30,000/-|12,000/-| |9|Permanent disability|1,00,000/-|21,600/-<br>(2,500x12x18x4/<br>100)| |10|Loss of earning power|50,000/-|| |11|Future medical expenses|20,000/-|| |12|Loss of amenities|15,000/-|8,000/-| ||Total claim Limited to|2,00,000/-|78,100/-<br>with 7% interest| 11. The accident occurred on 07.02.2003. At the time of accident, the appellant was aged 27 years. The appellant claimed a monthly income of Rs.5,000/- as a marble worker. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,500/-, for the purpose of assessing compensation under various heads. 7 MACA No.821 OF 2010 ## 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, 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 8 MACA No.821 OF 2010 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. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2003, 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 appellant notionally as Rs.4,000/-, for the purpose of assessing compensation under various heads. 9 MACA No.821 OF 2010 15. The document marked as Ext.A2 is the wound certificate and Exts.A6 and A7 are the discharge summaries. Ext.A8 is the discharge card and Ext.A9 is the discharge certificate. As per medical records, the appellant had sustained fracture on both bones of right leg and abrasion on right leg. The document marked as Ext.A6 is the discharge card issued by Deepa Nursing Home, Kanhangad, which would show that the appellant was admitted on 07.02.2002 with the above mentioned injuries and was treated conservatively and discharged at request on 08.02.2002. Ext.A7 is the discharge summary issued by Jubilee Mission Hospital, Thrissur, which would indicate that the appellant was admitted on 08.02.2003 with fracture on tibia and he was treated by open reduction and internal fixation and discharged on 14.02.2003. Ext.A8 series is the discharge summaries issued by Jubilee Mission Hospital, Thrissur. 16. The discharge summary dated 24.02.2003 would show that the appellant was admitted on 22.02.2003 with pain on right leg and he was treated conservatively and POP cast applied and was discharged on 24.02.2003. Another discharge 10 MACA No.821 OF 2010 summary would indicate that he was again admitted in the Jubilee Mission Hospital on 26.07.2005 for removal of implant and thereafter, he was discharged on 30.07.2003. Ext.A9 is another discharge summary, which would show that he was admitted in the hospital for the treatment of fracture on both bones of right leg from 09.02.2003 and he was treated by closed inter locking nailing and PTP cast. Ext.A10 series of medical bills are for a sum of Rs.24,913.29/-. 17. In Ext.A11 disability certificate, the Medical Board assessed the permanent whole body disability of the appellant, on account of the injuries sustained in the accident, as 7%. However, the Tribunal reduced the percentage of disability to 4% and the reasoning of the Tribunal, as contained in paragraph 12 of the award, reads thus; “According to the petitioner that in the accident he had sustained severe injuries and those injuries caused disability and discomfort which affects his enjoyment of amenities in life. To prove that he is having disability, he has produced a disability certificate issued by Dr.P.J.Jacob, Assistant Professor in Orthopaedics, Medical College Hospital, Thrissur, in which he certified that on 04.06.2008 he had examined Mr.Poulose, aged 27, who had sustained fracture both bone of right leg 11 MACA No.821 OF 2010 following a road traffic accident. He was treated with inter locking nailing and was discharged on 12.02.2003 with an advise of non weight bearing cretch walking for 3 months. The discharge summary issued from Deepa Clinic, Kanhangad which indicate that the petitioner had sustained both bone fracture. It is evident from Ext.A6 that the petitioner had sustained both bone fracture of right leg where as the discharge summary issued from Jubilee Mission Hospital, Thrissur which would indicate that the petitioner had sustained tibia fracture alone. But the doctor who has issued disability certificate stated that the petitioner had sustained both bone fracture. The documents produced by the petitioner are self contradictory to each other with regard to the nature of injury sustained to the petitioner. However, Dr.P.J.Jacob has assessed the permanent disability of 7% as whole body on the basis of the difficulties suffering by the petitioner. According to him, that the petitioner has pain in right leg on walking some distance, stiffness of right ankle and difficulty in climbing up and down stairs. He has 1.2cm shortening in right leg, he has united fracture of tibia and malunited fracture of fibula right. Dorsiflexion and planterflexion were restricted. So in the light of the discrepancies with regard to the injury noted in the medical certificate issued from the hospital, where he had undergone treatment, it would be difficult to accept the certificate issued by Dr.P.J.Jacob. However, the petitioner had sustained fracture on his leg. Ext.A7 and A8 series are discharge summaries issued from Jubilee Mission Hospital, which indicate that the 12 MACA No.821 OF 2010 petitioner had sustained fracture on tibia. So in the above facts and circumstances, the petitioner had sustained disability of 4% and that 4% disability which affects his earning capacity by 4% and for fixing compensation, his annual income is multiplied with a multiplier 18 with 4% disability which would come to Rs.21,600/- and the same is awarded as compensation for loss of earning capacity.” 18. The learned counsel for the appellant has made available for the perusal of this Court the medical records. A perusal of those records would show that, in the accident, the appellant sustained multiple fracture. The disabilities noted in Ext.A11 disability certificate includes shortening of right leg by 1.2 cm, and malunited fracture of fibula right. Dorsiflexion and planterflexion were restricted. In such circumstances, the reasoning of the Tribunal in reducing the percentage of permanent disability assessed in Ext.A11 from 7% to 4% cannot be sustained. Therefore, it is held that the appellant is entitled for disability compensation, treating the percentage of whole body disability as 7%, as certified in Ext.A11. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.7,500/-, at the rate of Rs.2,500/- per month for a period of 3 months. Considering the nature of injuries 13 MACA No.821 OF 2010 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 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.16,000/- (4,000 x 4), resulting an additional compensation of **Rs.8,500/-** (16,000 - 7,500). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 14 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is refixed as Rs.2,500/-, resulting an additional compensation of **Rs.1,000/-** (2,500 - 1,500). 21. Towards bystander expenses the Tribunal awarded a sum of Rs.1,500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2003 and the appellant had undergone inpatient treatment for 14 days. Considering the nature of injuries sustained and the 14 MACA No.821 OF 2010 treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.2,100/- (150 x 14), resulting an additional compensation of **Rs.600/-** (2,100 - 1,500). The compensation under the head extra nourishment is re-fixed as Rs.1,400/- (100 x 14), resulting an additional compensation of **Rs.900/-** (1,400 - 500). 22. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2003, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 23. Towards medical expenses, the Tribunal awarded a sum of Rs.25,000/-, covered by Ext.A10 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. 24. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. Considering the 15 MACA No.821 OF 2010 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.15,000/-, resulting an additional compensation of **Rs. 3,000/-** (15,000 - 12,000) under this head. 25. 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, 16 MACA No.821 OF 2010 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. ## 26. 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. 27. In the instant case, as on the date of accident, the appellant was aged 27 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 18 applied by the Tribunal is not correct and and the proper multiplier to be applied is **17** . 28. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.21,600/- (2,500 x 12 x 18 x 4/100). Since the monthly income of the appellant is re-fixed 17 MACA No.821 OF 2010 notionally as Rs.4,000/-, applying the multiplier of 17 applicable to the age group of the appellant and the percentage of permanent disability re-fixed as 7%, the compensation under the head permanent disability is re-fixed as Rs.57,120/- (4,000 x 12 x 17 x 7/100), resulting an additional compensation of **Rs.35,520/-** (57,120 - 21,600). 29. Towards loss of amenities the Tribunal awarded a sum of Rs.8,000/-. In Ext.A11 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is re-fixed as 7%. Considering the nature of injuries sustained and the permanent disability that has been assessed in Ext.A11 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.2,000/-** (10,000 - 8,000) under this head. 30. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.51,770/-** (Rupees Fifty One Thousand Seven Hundred and Seventy only) [8,500 + 1,000 + 600 + 900 + 250 + 3,000 + 35,520 + 18 MACA No.821 OF 2010 2,000] 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 the amount to the appellant shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** **yd**