Cyril, S/o Mathew v Payambally Johnson and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941** ## **MACA.No.788 OF 2008** **AGAINST THE AWARD IN OPMV 1065/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANT:** **CYRIL, S/O.MATHEW, AGED 27 YEARS, KALLAKAVINGAL HOUSE, P.O.PAISAKKARY.** **BY ADV. SRI.C.P.PEETHAMBARAN** ## **RESPONDENTS:** - **1 PAYAMBALLY JOHNSON, S/O.JOSEPH, PAYYAVOOR P.O., PAYYAVOOR.** - *** 2 K.NIZAR, S/O.KUNHIMOIDEEN, MANDISSERY HOUSE, HOUSE NO.550/IV, P.O.ERUVASSERY. (DELETED)** - *** THE RESPONDENT NO.2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 12/07/17 IN IA NO 2305/17 IN MACA 788/08.** - **3 UNITED INDIA INSURANCE CO.LTD., KANNUR.** **R3 BY SRI.P.K.MANOJKUMAR,STANDING COUNSEL, UNITED INDIA INSURANCE CO. LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.788 OF 2008** -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.1065 of 2002 on the file of the Motor Accidents Claims Tribunal, Thalassery, 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 04.11.2001 while he was travelling in a jeep bearing registration No.KL-10/B-959, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the jeep fell into a pit on the road. The appellant/claimant was thrown out of the jeep and he sustained injuries. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the said vehicle by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed written statement denying the insurance **MACA.No.788 OF 2008** -3- coverage of the offending vehicle. The insurer contended that the accident occurred only due to the negligence of the appellant/claimant himself. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. Thereafter, the 3[rd] respondent insurer filed additional written statement admitting the insurance coverage of the offending vehicle, as on the date of accident. 3. Before the Tribunal, Exts.A1 to A10 series were marked on the side of the appellant/claimant and PWs 1 to 3 were examined. 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 offending vehicle by the 1[st] respondent driver. Since insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,24,833/-, which was rounded off to Rs.1,24,850/-, and **MACA.No.788 OF 2008** -4- the insurer was directed to satisfy the award, together with interest at the rate of 7% per annum from the date of petition till realisation, with proportionate cost. 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. Despite service of notice, none appears for the 1[st] respondent. The 2[nd] respondent was deleted from the party array, at the risk of the appellant. 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 **MACA.No.788 OF 2008** -5- 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 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- **MACA.No.788 OF 2008** -6- ## violation of the principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||Head of claim|Amount<br>allowed|Details| |---|---|---|---| |1|Loss of earning|4,000/-|| |2|Transportation expenses|1,750/-|| |3|Medical expenses|73,983/-|| |4|Bystanders expenses|4,100/-|| |5|Extra nourishment|1,000/-|| |6|Pain and suffering|15,000/-|| |7|Compensation for the<br>disability|25,000/-|| ||Total|**1,24,833/-**|Rounded to<br>**Rs.1,24,850/-**| 11. The accident occurred on 04.11.2001. At the time of accident, the appellant was aged 22 years. He claimed a monthly income of Rs.5,000/- as Electronic Technician in Thomson Radio Service, Sreekandapuram. The appellant was examined as PW1. In order to prove his qualification and monthly income, Ext.A5 certificate issued by the Indian Technical Education Society, Mumbai in Transistor Servicing was produced. Ext.A6 is the employment cum salary certificate issued by the proprietor, Thomson Radios and **MACA.No.788 OF 2008** -7- Electronics, who was examined as PW3, who deposed that the appellant was working with him in the shop from 15.02.2000 to 03.11.2001 on a monthly salary of Rs.3,000/-. After the accident, the appellant had not attended the job. However, the appellant/claimant who was examined as PW1 claimed a monthly salary of Rs.5,000/-. After analysing the materials on record and also oral evidence of PWs 1 and 3, the Tribunal fixed the monthly income of the appellant, notionally, as Rs.2,000/-. 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 **MACA.No.788 OF 2008** -8- 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 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 **MACA.No.788 OF 2008** -9- 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 2001, 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.3,000/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A2 is the accident register cum wound certificate issued from the Dhanalakshmi Hospital, Kannur. In Ext.A2, wound certificate, it is noted that as a result of the accident, the appellant sustained two lacerated wounds on the anterior aspect of middle 3[rd] of right leg, about 4x5 cms and 3x2 cms; multiple abrasions on the both forearm and hands; lacerated wound right lateral to anal orifice, about 5x2 cms; and tenderness, deformity and **MACA.No.788 OF 2008** -10- abnormal mobility at middle 3[rd] of right leg, tibia fragment is seen outside. X-ray of right leg showed comminuted fracture of shaft of right tibia and fibula. Ext.A3 is the discharge card issued from the said hospital, in which the date of admission and discharge are noted as 04.11.2001 and 05.12.2001 respectively. Wound debrided and extensor fixation done under spine anesthesia on 04.11.2001. Cross leg flap done under spine anesthesia on 05.11.2001. Flap division done under spine anesthesia on 26.11.2001. Removal of fixator and AK cast application done under general anesthesia. Sutures removed and flap taken. There was 4 reviews. Ext.A8 series of inpatient medical bills are for a sum of Rs.48,726.17; and Ext.A10 series of inpatient medical bills are for a sum of Rs.25,256.71, totalling to Rs.73,982.88. 16. Ext.A9 is the disability certificate issued by Dr.Narayana Prasad K. of Dhanalakshmi Hospital, who examined the appellant on 29.01.2003. The Tribunal noticed that, while the claimant was examined as PW1, he was having partial ankylosis of his right ankle joint with flexion and extension motions limited to an arc from 90 degree ankle **MACA.No.788 OF 2008** -11- to 125 degree plantar flexion (5/15); and partial ankylosis of his right knee movements motion limited to an arc from 180 degree to 110 degree flexion (2/6). He was also having one inch shortening of right tibial component. The Doctor, who issued Ext.A9 was also examined as PW2. In Ext.A9 disability certificate, the doctor assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 8%. Though the Tribunal accepted the percentage of permanent disability assessed in Ext.A9, awarded only a lump sum amount of Rs.25,000/- under the head disability compensation. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.4,000/-, at the rate of Rs.2,000/- for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 months fixed by the Tribunal for granting loss of earning is re-fixed as 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,000/-, the compensation under the head loss of earning is re-fixed as Rs.15,000/- (3000 x 5), resulting an additional **MACA.No.788 OF 2008** -12- compensation of **Rs.11,000** /-(15000 - 4000). 18. Towards medical expenses, the Tribunal awarded a sum of Rs.73,983/- covered by Exts.A8 and 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. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.4,100/- (100 x 41). Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2001 and the appellant had undergone inpatient treatment for 41 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.6,150/- (150 x 41), resulting an additional compensation of **Rs.2,050/-** (6,150 - 4,100). The compensation awarded under the head extra nourishment is re-fixed as Rs.4,100/- (100 x 41), resulting an additional compensation of **Rs.3,100/-** (4,100 - 1,000). **MACA.No.788 OF 2008** -13- 20. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. 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 this head is refixed as Rs.20,000/-, resulting an additional compensation of **Rs.5,000/-** (20000-15000). 21. 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, **MACA.No.788 OF 2008** -14- 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. 22. 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. 23. In the instant case, as on the date of accident, the appellant was aged 22 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 appellant is entitled for disability compensation, applying the multiplier of **18** . 24. Towards compensation for permanent disability, the Tribunal awarded a lump sum amount of Rs.25,000/-. Since the monthly income of the appellant is re-fixed **MACA.No.788 OF 2008** -15- notionally as Rs.3,000/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 8%, the compensation under the head permanent disability is re-fixed as Rs.51,840/- (3,000 x 12 x 18 x 8/100), resulting an additional compensation of **Rs.26,840/-** (51840 - 25000). 25. Towards loss of amenities no compensation amount has been awarded by the Tribunal. In Ext.A9 disability certificate the permanent whole body disability of the appellant, on account of the injuries sustained in the accident, is assessed as 8%. Considering the nature of injuries sustained and the permanent disability that has been assessed in Ext.A9, this Court deem it appropriate to grant a sum of **Rs.10,000/-** under the head loss of amenities. 26. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.57,990/-** (Rupees fifty seven thousand nine hundred and ninety only) [11,000 + 2,050 + 3,100 + 5,000 +26,840 + 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period **MACA.No.788 OF 2008** -16- of delay of 444 days, which was condoned as per order dated 11.10.2019 in C.M.Application No.784 of 2008 on condition that in case enhanced compensation is granted in this appeal, the appellant shall not be entitled for interest on the said amount for the period of delay. 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** bpr