Elsy Rani v. C.S. Elias, Manickam and The Manager, New India Assurance Co. Ltd.

MACA 3551/2019 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 03RD DAY OF OCTOBER 2019 / 11TH ASWINA, 1941** ## **MACA.No.3551 OF 2019** **AGAINST THE AWARD IN OP(MV)No.721/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA** ## **APPELLANT/PETITIONER:** **ELSY RANI AGED 39 YEARS W/O.JABANASAN, ROPSON ESTATE LAYAM, PAMBANAR KARA, PEERUMEDU VILLAGE.** **BY ADVS.** **SRI.MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE** ## **RESPONDENTS/RESOIBDEBTS:** **1 C.S.ELIAS S/O.C.V.SAMUVAL, CHARUKALLUMKAL HOUSE, VAGAMON P.O., VAGAMON VILLAGE, PIN-685 503.** - **2 MANICKAM, S/O.MALLIKAYIL HOUSE, VAGAMON P.O., VAGAMON VILLAGE, PIN-685 503.** - **3 THE MANAGER, NEW INDIA ASSURANCE CO.LTD., PALA BRANCH, PALA P.O., PIN-686 575.** **R3 BY SRI A.A.ZIYAD RAHMAN- STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 3551/2019 2 ## **J U D G M E N T** The appellant is the claimant in O.P.(MV).No.721 of 2016 on the file of the Motor Accidents Claims Tribunal, Pala, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 21.06.2016, while she was travelling in an autorickshaw bearing registration No.KL37/C-6467. At the place of accident the autorickshaw was hit by a jeep bearing registration No.KL-6/B-2895, 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 rash and negligent driving of the jeep by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of 10,92,000/-, 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 admitting insurance coverage of the offending vehicle. The insurer contended that the accident occurred due to the negligence of the driver of the autorickshaw, MACA 3551/2019 3 in which the appellant/claimant was travelling. The age, occupation and monthly income stated in the claim petition were denied and it was contended that the amount of compensation claimed under various heads are excessive. 3. Before the Tribunal, O.P.(MV).No.721 of 2016 was tried along with O.P.(MV).No.729 of 2016. Exhibits A1 to A32 were marked on the side of the claimants. Both sides have not chosen to adduce any oral 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 jeep by the 1[st] respondent driver. Since insurance coverage of the said vehicle was 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 2,68,248/- together with₹ interest at the rate of 9% per annum from the date of petition till realisation, with proportionate cost and directed the 3[rd] respondent insurer to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded under various heads, the appellant is before this Court in this appeal. MACA 3551/2019 4 6. Heard the learned counsel for the appellant and also the learned Standing Counsel for the 3[rd] respondent insurer. Since insurance coverage of the offending jeep is not in dispute, service of notice on respondents 1 and 2 is dispensed with. 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 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 MACA 3551/2019 5 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. The compensation awarded by the Tribunal under ## various heads reads thus: |Sl.<br>No.|Head of Claim|Amount<br>claimed<br>(in Rupees)|Amount<br>awarded<br>(in Rupees)|Basis-<br>vital<br>details<br>in a nut<br>shell| |---|---|---|---|---| |1.|Loss of earning|30,000|27,000|| ||Partial<br>loss<br>of<br>earning|20,000|......|| |2.|Transport<br>to<br>hospital|15,000|4,800|| |3.|Extra nourishment|4,000|2,000|| |4.|Damage to clothing|3,000|1,000|| |5.|Medical<br>and<br>miscellaneous<br>expenses|25,000|8,048|| |6.|Bystander<br>expenses|15,000|5,000|| MACA 3551/2019 6 |7.|Pain and suffering|1,50,000|50,000|| |---|---|---|---|---| |8.|Compensation for<br>disability|5,00,000|1,40,400|| |9.|Compensation for<br>loss of amenities|1,00,000|30,000|| |10.|Compensation for<br>disfiguration|50,000|......|| ||Total|10,92,000/-<br>₹|2,68,248/-<br>₹|| 11. The accident occurred on 21.06.2016. At the time of accident the appellant was aged 36 years. The appellant claimed a monthly income of 9,000/- as a coolie (manual labourer). The₹ appellant has not chosen to mount the box to prove monthly income. In the absence of any reliable materials, the Tribunal took the monthly income notionally as 9,000/-.₹ ## 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 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 MACA 3551/2019 7 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 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 MACA 3551/2019 8 ## 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 2016, 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 10,500/-, for the purpose₹ of assessing compensation under various heads. 15. The document marked as Ext.A3 is the wound certificate and Ext.A6 is the discharge certificate. As per medical records, in the accident, the appellant sustained pain and swelling in right forearm; pain and swelling right leg; lacerated wound 25x3 cm proximal leg extending part on both sides; closed fracture distal end of radius right; soft tissue injury proximal leg right; and tenderness and odema on right wrist. 16. After the accident the appellant was taken to Taluk Head Quarters Hospital, Peermedu and then referred to Medical College Hospital, Kottayam, where she had undergone inpatient treatment from 21.06.2016 to 30.06.2016 (10 days). Thereafter she had undergone inpatient treatment at Taluk Headquarters Hospital from 25.06.2016 to 05.07.2016 (10 days). MACA 3551/2019 9 17. The document marked as Ext.A13 is the disability certificate in which the percentage of permanent disability is assessed as 10%. The Tribunal accepted the percentage of disability assessed in Ext.A13 for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of 27,000/- at the rate of 9,000/- for a period of 3 months.₹ ₹ Considering the nature of injuries 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 ₹10,500/the compensation under the head loss of earning is re-fixed as ₹42,000/- (10,500 x 4), resulting an additional compensation of **₹15,000/-** (42,000 - 27,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 20 days during two different spells. Towards transportation to hospital, the Tribunal awarded a sum of ₹4,800/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation MACA 3551/2019 10 awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards bystander expenses the Tribunal awarded a sum of ₹5000/-. Towards extra nourishment, the Tribunal awarded a further sum of 2,000/-. The accident is of the year₹ 2016 and the appellant had undergone inpatient treatment for 20 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 7,000/- (350 x 20), resulting an₹ additional compensation of ₹ **2,000/-** (7,000 – 5,000). The compensation under the head extra nourishment is re-fixed as ₹ 5,000/- (250 x 20), resulting an additional compensation of ₹ **3,000/-** (5,000-2,000). 21. Towards transportation to hospital, the Tribunal awarded a sum of ₹4,800/-. 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 represents just and reasonable compensation, which requires no enhancement in this appeal. MACA 3551/2019 11 22. Towards medical expenses, the Tribunal awarded a sum of ₹8,048/-, covered by Ext.A17 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of ₹50,000/-. 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 cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 24. 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** MACA 3551/2019 12 **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. 25. 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. 26. In the instant case, as on the date of accident, the appellant was aged 36 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 13 applied by the Tribunal is not correct and proper and the proper multiplier to be applied is **15** . MACA 3551/2019 13 27. Towards compensation for disability the Tribunal awarded a sum of 1,40,400/- [9,000 x 12 x 13 x 10/100].₹ Since the monthly income of the appellant is notionally re-fixed as 10,500/- the compensation under this head is re-fixed as₹ ₹1,89,000/- [10,500 x 12 x 15 x 10/100], resulting an additional compensation of **₹48,600/-** (1,89,000 – 1,40,400). 28. Towards loss of amenities the Tribunal awarded a sum of 30,000/-. Considering the nature of injuries sustained and the₹ disability that had arisen out of those injuries, as certified in Ext.A13 disability certificate at 10%, the compensation awarded by the Tribunal under the aforesaid head cannot be said to be on the lower side, which requires no enhancement in this appeal. 29. In the result, the appellant is entitled for an additional compensation of **₹68,600/-** (Rupees Sixty Eight Thousand Six Hundred only) [15,000 + 2,000 + 3,000 + 48,600) 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 MACA 3551/2019 14 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** DG