Davis M.V. v. P.P. Basheer, Nousha Beegam, and The Manager, New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941** ## **MACA.No.544 OF 2010** **AGAINST THE JUDGMENT DATED 29.06.2009 IN OP(MV) NO.1725/2006 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR APPELLANT/S:** **DAVIS M.V., 36 YEARS S/O VARGHESE MADATHUM KUDY HOUSE, ANGAMALY SOUTH.P.O,, ERNAKULAM DISTRICT.** **BY ADVS. SRI.PAUL JACOB SRI.K.M.AJITH SRI.K.A.HASHIM SRI.K.R.MURALI SRI.PEARL K.DAVIS SRI.I.K.RAJU** ## **RESPONDENT/S:** **1 P.P.BASHEER, S/O PAKKO PEEDIYAKKAL HOUSE, SOUTH VELLARAPPILLY,, CHOVARA TEKKUM BHAGAM VILLAGE,, ERNAKULAM DISTRICT-PIN-683 574. 2 SMT.NOUSHA BEEGAM, W/O.BASHEER.P.P PEEDIYAKKAL HOUSE, SOUTH VELLARAPPILLY,, CHOVARA TEKKUM BHAGAM VILLAGE,, ERNAKULAM DISTRICT-PIN-683 574.** **3 THE MANAGER NEW INDIA ASSURANCE CO.LTD.,, ST.JOSEPH BUILDING, A M ROAD,, PERUMBAVOOR. R1 BY ADV. SRI.M.A.ANZAR R1 BY ADV. SMT.M.HEMALATHA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.544 OF 2010** ..2.. ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.1725/2006 on the file of the Motor Accident Claims Tribunal, Perumbavoor, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained in a motor accident, which occurred on 12.06.2006, while he was riding a motorcycle bearing Registration No.KL-01C/4326. At the place of accident, the motorcycle was hit by a Maruti car bearing Registration No.KL-08/S-1728, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the Maruti car by its driver, claim petition was filed before the Tribunal, claiming total compensation of Rs.7,00,000/under various heads. 2. Respondents 1 and 2 filed joint written statement admitting the accident; however, denying the negligence alleged against the 2[nd] respondent driver. They have also disputed the age, occupation, income etc., of the claimant. **MACA.No.544 OF 2010** ..3.. It was pointed out that at the time of accident, the driver was having a valid driving licence and the vehicle was also insured with the 3[rd] respondent insurer. 3. The 3[rd] respondent insurer filed a written statement admitting the insurance coverage of the offending vehicle. The insurer contended that the 1[st] respondent was driving the car with due care and caution and the accident occurred due to the negligence of the appellant, who was riding the motorcycle. The insurer contended further that, the compensation claimed under various heads is exorbitant. 4. The claim petition was tried along with connected matters. On the side of the claimants, Exts.A1 to A30 were marked and a copy of the policy was marked as Ext.B1 on the side of the respondents. The appellant was examined as PW1, one Muraleedharan as PW2; and Dr. Mohammed Ali, who issued A24 disability certificate was examined as PW3. 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 car by the 2[nd] respondent driver. Since insurance coverage of the **MACA.No.544 OF 2010** ..4.. said vehicle is not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.2,79,963/-, which was rounded off to Rs.2,79,970/-, and directed the 3[rd] respondent insurer to deposit the said amount together with interest at the rate of 8% per annum from the date of petition till realisation. The insurer was directed to satisfy the award within one month from the date of award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. 8. 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. 9. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under **MACA.No.544 OF 2010** ..5.. 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 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 **MACA.No.544 OF 2010** ..6.. 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: Rupees Loss of earnings Rs. 18,000/Treatment expenses Rs.1,43,343/Transportation Expenses Rs. 1,500/Damage to clothings and other articles Rs. 500/Pain and suffering Rs. 24,000/Loss of amenities Rs. 10,000/Extra nourishment Rs. 2,000/Attendant's charges Rs. 1,500/Disability Rs. 69,120/Disfiguration Rs. 5,000/Future treatment expenses Rs. 5,000/-------------Total Rs.2,79,963/=========== **MACA.No.544 OF 2010** ..7.. 12. The accident occurred on 12.06.2006 and at the time of accident, the appellant was aged 33 years. He claimed a monthly income of Rs.6,000/- as an Electrician. In order to prove income, Exts.A13 to A16 documents were marked. However, nobody was examined to prove the monthly income certified in Exts.A14 and A15 certificates. In the absence of any reliable materials, the Tribunal took the monthly income of the appellant notionally, at Rs.3,000/- 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 **MACA.No.544 OF 2010** ..8.. 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 High Court to ask for evidence to prove his monthly **MACA.No.544 OF 2010** ..9.. 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 2006, and taking note of the fixation of notional monthly income by the Apex Court in the decision referred to above, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.5,500/- for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A6 is the wound certificate, as per which the appellant sustained fracture both bones right leg with compartment syndrome; and near total amputation of right little finger. Ext.A8 is the discharge summary, as per which the appellant had undergone inpatient treatment at Specialist Hospital, Ernakulam from 12.06.2006 to 15.07.2006. In Ext.P6 it is shown that wound debridment was done and external fixator was applied in **MACA.No.544 OF 2010** ..10.. right leg. The appellant got punctured wound P/3[rd] and D/3[rd] with injury to tendo achilles and posterior tibial artery. On 12.06.2006 wound debridement, fasciotomy, hybrid external fixation were done. On 16.06.2006 repair of tendo achilles, SSC of fasciotomy raw area were done. On 15.07.2006 raw area 3 x 1 over distal end leg SSG, external fixator removal and LL slab were given. At the time of discharge wounds were healed. 17. Ext.A9 is another discharge summary from the very same hospital. As per Ext.A9 closed reamed interlocking nail was applied in right tibia. The wounds were healed and no DNVD (Digital Neuro Vascular Deficit). There was frankly mobile at fracture site. Closed reamed interlocking nail right on tibia and fibula osteotomy were done on 14.08.2006. Sutures were removed on 27.08.2006. 18. Ext.A10 is another treatment summary by the Medical Superintendent of that hospital, wherein it has been stated that the appellant had developed post traumatic arthritis right ankle, which requires implant removal and arthroscopic debridement. Ext.A11 is the certificate issued **MACA.No.544 OF 2010** ..11.. by the Administrative Officer of that hospital showing approximate expenditure for implant removal, medicines and hospitalisation as Rs.70,000/-. 19. Ext.A18 series and A25 series are medical bills. As per Ext.A18 series, the treatment expenses incurred by the appellant comes to Rs.1,22,919/-. As per Ext.A25 series, the amount comes to Rs.20,424/-. Thus, the total amount covered by Exts.A18 and Ext.A25 comes to Rs.1,43,343/-. 20. In Ext.A24 disability certificate issued by PW2, 15% permanent whole body disability has been assessed. The clinical findings in Ext.A24 are:- Right little finger – FFD (Fixed Flexion Deformity) at 45 degree knee movements from 180 degree to 70 degree flexion – 95 degree to 105 degree plantar flexion; Adducation, adduction, inversion, eversion – 5 degree each; Radiology X-ray right leg – united fracture tibia L/3, united segmental fracture fibula; and Right knee partial ankylosis. 21. After considering the assessment of disability in Ext.A24 disability certificate and also the evidence of the doctor, who was examined PW3, the Tribunal reduced the **MACA.No.544 OF 2010** ..12.. ## percentage of permanent disability as 12%. The reasoning of the Tribunal in paragraph 15 of the award reads thus:- “Based on the above findings the whole body permanent physical disability of the petitioner as per McBride's scale is assessed as 15%. The evidence of PW3 would show that he had examined all the medical documents in relation to the treatment of the petitioner and arrived at the above said conclusion. PW3 has issued Ext.A24 not as a member of the Medical Board, but as in individual doctor. As the assessment was not made by the Medical Board, the 15% disability as stated above cannot be taken as such. I have verified the details given in Ext.A24 in the light of Ext.A8 and A9 discharge summaries and Ext.A10 treatment summary. In Ext.A8 it is stated that at the time of discharge of the petitioner on 20.07.2006 his wounds were healed. In enquiry it is stated that at the time of discharge on 27.08.2006 his X-ray was taken and there was no sign of callous formation in right leg. In Ext.A10 dated 20.08.2008 it is stated that he has developed post traumatic arthritis right ankle and required implant removal and arthroscopic debridement. PW3 had conducted examination subsequent to Ext.A10 and issued certificate stating that the fractures were united well. There is no case of malunion. The assessment made by PW3 before the removal of implant could not be taken as such. On considering all these aspects, his whole body disability is found to be 12%. “ **MACA.No.544 OF 2010** ..13.. 22. The Tribunal awarded a sum of Rs.18,000/- towards loss of earning for a period of 6 months at the rate of Rs.3,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, this Court finds that the period of 6 months fixed by the Tribunal for granting loss of earning, warrants no interference. Since the monthly income of the appellant is notionally re-fixed as Rs.5,500/-, the compensation under the head loss of earning is re-fixed as Rs.33,000/- (5,500 x 6), resulting an additional compensation of **Rs.15,000/-** (33,000 – 18,000). 23. Towards treatment expenses, the Tribunal awarded a sum of Rs.1,43,343/- covered by Exts.A18 and A25 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under the said head is just and reasonable, which requires no enhancement in this appeal. 24. Towards transportation expenses, 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, this Court **MACA.No.544 OF 2010** ..14.. deem it appropriate to re-fix the compensation under this head as Rs.3,000/-, resulting an additional compensation of **Rs.1,500/-** (3,000 – 1,500). 25. Towards damage to clothings and other article, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2006, this Court deem it appropriate to re-fix the compensation under this head as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). 26. Towards pain and suffering, the Tribunal awarded a sum of Rs.24,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, this Court deem it appropriate to re-fix the compensation under this head as Rs.25,000/-, resulting an additional compensation of **Rs.1,000/-** (25,000 – 24,000). 27. Towards loss of amenities, the Tribunal awarded an amount of Rs.10,000/-. Considering the nature of injuries sustained and the disability that had arisen out of those injuries, as borne out from Ext.A24 disability certificate, this Court deem it appropriate to re-fix the compensation **MACA.No.544 OF 2010** ..15.. awarded under this head as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 – 10,000). 28. Towards extra nourishment, the Tribunal awarded a sum of Rs.2,000/- and towards attendant charges, the Tribunal awarded as sum of Rs.1,500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded under the head extra nourishment is re-fixed as Rs.3,300/-, resulting an additional compensation of **Rs.1,300/-** (3,300 – 2,000) and that under the head attendant charge is re-fixed as Rs.4,950/-, resulting an additional compensation of **Rs.3,450/-** (4,950 – 1,500). 29. 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 **MACA.No.544 OF 2010** ..16.. 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. 30. 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. 31. In the instant case, as on the date of accident, the appellant was aged 33 years. In the light of the decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's** **MACA.No.544 OF 2010** ..17.. **case** referred to supra, the multiplier of **16** applied by the Tribunal is correct and proper. 32. Towards disability compensation, the Tribunal awarded a sum of Rs.69,120/- [3,000 x 12 x 16 x 12%]. Since the monthly income of the appellant is notionally refixed as Rs.5,500/-, the compensation under this head is refixed as Rs.1,26,720/- [5,500 x 12 x 16 x 12/100], resulting an additional compensation of **Rs.57,600/-** (1,26,720 – 69,120). 33. Towards future treatment, the Tribunal awarded a sum of Rs.5,000/-. Considering the fact that the appellant had to undergo process for removal of implant, this Court deem it appropriate to re-fix the compensation under this head as Rs.15,000/-, resulting an additional compensation of **Rs.10,000/-,** which will carry no interest. 34. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.95,350/-** (Rupees ninety five thousand three hundred and fifty only), [5,000 + 1,500 + 500 + 1,000 + 5,000 + 1,300 + 3,450 + 57,600 + 10,000] which will carry interest at 8% per annum, **MACA.No.544 OF 2010** ..18.. for a sum of Rs.95,350/- 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/-** SB/17/10/2019 **ANIL K.NARENDRAN JUDGE**