Dhanya @ Dhanya Sreejith v. Divisional Manager, National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 01ST DAY OF OCTOBER 2019 / 9TH ASWINA, 1941** ## **MACA.No.3665 OF 2019** **AGAINST THE AWARD DATED 30.7.2016 IN OPMV 1650/2013 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/PETITIONER:** **DHANYA@DHANYA SREEJITH AGED 26 YEARS W/O. K.J.SREEJITH, KAITHAKKOTTIL HOUSE, THRIKKALATHUR, MOOVATTUPUZHA, ERNAKULAM-686 661** **BY ADVS. SRI.K.SIJU SMT.S.REKHA KUMARI** ## **RESPONDENT/3RD RESPONDENT:** **THE DIVISIONAL MNAGER M/S. NATIONAL INSURANCE COMPANY LTD, HOSPITAL ROAD, KOLLAM-691 306** **BY ADV.SRI.LAL GEORGE, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3665 OF 2019** 2 ## **JUDGMENT** Appellant is the claimant in O.P.(MV) No.1650 of 2013 on the file of the Motor Accidents Claims Tribunal, Kollam, which is 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 25.05.2013, while he was driving a Maruthi car bearing registration No.KL-17/G-4980. At the place of accident it was hit by an Innova car bearing registration No.KL-07/BL-1359, owned by the 1[st] respondent, driven by the 2[nd] respondent before the Tribunal and insured with the respondent herein. In the accident, the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the Innova car by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal the respondent insurer filed written statement admitting the insurance coverage; however, denying the negligence alleged against the driver of the offending vehicle. The insurer contended that the compensation claimed by the appellant/claimant under various heads are on the higher side. 3. The claim petition was tried along with O.P.(MV) Nos.1646 and 1647 of 2013 arising out of the very same accident. **MACA.No.3665 OF 2019** 3 Exts.A1 to A24 were marked on the side of the appellant. Her husband, who is the claimant in the connected matter, was examined as PW1. 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 its driver. Since insurance coverage of the said vehicle was not in dispute, the respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,53,580/-, together with interest at the rate of 9% per annum from the date of petition, i.e., 30.12.2013, till the date of realisation, with proportionate cost and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/claimant and the learned Standing Counsel appearing for the respondent insurer. 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 different heads. 8. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC** **MACA.No.3665 OF 2019** 4 **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 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 **MACA.No.3665 OF 2019** 5 ## of equitability. ## 10. In the instant case, the compensation awarded by the ## Tribunal under various heads reads thus: |Sl.<br>No.|Head of Claim|Amount<br>claimed|Amount<br>awarded|Basics-vital details in<br>a nut shell| |---|---|---|---|---| |1|Loss of earnings|24,000/-|20,000/-|(5000x4)| |2|Partial loss earnings|Nil|Nil|Not awarded| |3|Transport to Hospital|7,000/-|2,000/-|Awarded| |4|Extra nourishment|5,000/-|1,050/-|(150x7)| |5|Damage to clothing and<br>articles|2,000/-|1,000/-|Awarded| |6|Others<br>1. Salary and expenses<br>for the bystanders<br>2. Medicine|6,000/-<br>20,000/-|1,400/-<br>41,130/-|(200x7)<br>(As per Ext.A23(a)<br>bills)| |7|Compensation pain and<br>suffering|20,000/-|15,000/-|Awarded| |8|Compensation<br>for<br>continuing or permanent<br>disability if any|50,000/-|54,000/-|(5000x12x18x5%)| |9|Compensation for loss of<br>earning power||Nil|Not awarded| |10|Compensation for shock<br>of mental agony||Nil|Not awarded| |11|Compensation for future<br>treatment|10,000/-|Nil|Not awarded| |12|Compensation for loss of<br>amenities in life|Not claimed|18,000/-|Awarded| ||Total|1,50,000/-|1,53,580/-|With interest at 9%<br>per annum from the<br>date of petition ie.<br>30.12.13 till<br>realisation| 11. The accident occurred on 25.05.2013. At the time of accident, the appellant was aged 20 years. He claimed a monthly income of Rs.8,000/- as Computer Operator. In order to prove **MACA.No.3665 OF 2019** 6 qualification, the appellant produced Ext.A17 certificate dated 9.6.2009 issued from the State Board of Technical Examination. However, no documents were placed on record to prove the monthly income. The appellant has also not chosen to mount the box. In such circumstances, the Tribunal fixed the monthly income notionally as Rs.5,000/-. 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 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 **MACA.No.3665 OF 2019** 7 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 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 2013, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court finds that the monthly income of Rs.8,000/- claimed by the appellant in the claim petition, cannot be said to be on the higher **MACA.No.3665 OF 2019** 8 side, which can be taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 15. Ext.A18 wound certificate would show that the appellant sustained fracture rib 1 right, brain concussion, blunt chest trauma and other injuries. She had undergone inpatient treatment for 7 days. Considering the nature of injuries, the Tribunal fixed the permanent disability of the appellant as 5%, for the purpose of assessing compensation under various heads. The assessment so made by the Tribunal warrants no interference in this appeal. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.20,000/-, at the rate of Rs.5,000/- for 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant loss of earning to the appellant for a period of six months. Since the monthly income of the appellant is notionally fixed as Rs.8,000/-, the compensation under head loss of earning is re-fixed as Rs.48,000/- (8000 x 6), resulting an additional compensation of **Rs.28,000/-** (48,000 – 20,000). 17. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/- and a further sum of Rs.1,050/- (150 x 7) was **MACA.No.3665 OF 2019** 9 awarded towards extra nourishment. Considering the nature of injuries sustained and the inpatient treatment the appellant had undergone for 7 days, the compensation awarded by the Tribunal under these heads represents just and reasonable, which requires no enhancement in this appeal. 18. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. The compensation awarded by the Tribunal represents just and reasonable, which warrants no enhancement. 19. Towards bystanders expense, the Tribunal awarded a sum of Rs.1,400/- (200 x 7). The compensation under this head is re-fixed as Rs.1,750/- (250 x 7), resulting an additional compensation of **Rs.350/-** (1,750 – 1,400). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.41,130/- covered by Ext.A23 (a) series of bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head is just and reasonable, which warrants no enhancement. 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** **MACA.No.3665 OF 2019** 10 ## **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. 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 20 years. In the light of the decisions of the **MACA.No.3665 OF 2019** 11 Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the multiplier of **18** applied by the Tribunal is correct and proper. 24. Towards compensation for continuing disability, the Tribunal awarded a sum of Rs.54,000/- (5,000 x 12 x 18 x 5/100). Since the monthly income of the appellant is notionally re-fixed as Rs.8,000/-, the compensation under this head is refixed as Rs.86,400/- (8,000 x 12 x 18 x 5/100), resulting an additional compensation of **Rs.32,400/-** (86,400 – 54,000). 25. Towards loss of amenities in life, the Tribunal has awarded Rs.18,000/-. Considering the nature of injuries sustained and also the assessment of permanent disability by the Tribunal at the rate of 5%, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side. Hence no interference is warranted. In the result, the appellant will be entitled for payment of an enhanced compensation of **Rs.60,750/-** (Rupees Sixty Thousand Seven Hundred and Fifty only) [28,000 + 350 + 32,400] in this appeal, which will carry interest at the rate of 8% per annum, from the date of petition, i.e., 30.12.2013, till the date of realisation, excluding the period of delay of 1011 days in filing this appeal, which was condoned vide order dated 23.09.2019 in **MACA.No.3665 OF 2019** 12 C.M.Application No.1 of 2019, subject to the condition that in case enhanced compensation is awarded in this appeal, the appellant shall not be entitled for interest for the enhanced compensation amount for the period of delay. The respondent insurer shall satisfy the additional compensation granted in this appeal together with interest, within 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. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant as per 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** jv **JUDGE**