Fairoos P. v. KSRTC Transport Bhavan & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941** ## **MACA.No.3010 OF 2016** **AGAINST THE AWARD IN OP(MV) 1160/2015 DATED 14-03-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER:** **FAIROOS P, S/O. ABDUL SAMAD, AGED 20 YEARS, ARADHANA (H), PIPE LINE ROAD, PUTHIYARA P.O., KOZHIKODE DT, PIN-673004.** **BY ADV. SRI.N.V.P.RAFEEQUE** ## **RESPONDENTS/RESPONDENTS:** **1 MANAGING DIRECTOR, KSRTC TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-23. 2 MUHAMMED ASHARAF N.P. S/O. MUHAMMED KOYA C.K., AGED 45 YEARS, NATTIPARAKKAL (H), MADAVOOR P.O., NARIKKUNI, KOZHIKODE DT., PIN-673585. 3 NEW INDIA ASSURANCE COMPANY LT FAIR MOUNT BUILDING, ERANJIPALAM, KOZHIKODE DT,PIN-673006.** **R1 BY SRI.P.C.CHACKO, SC, KSRTC R1 BY ADV. SRI.JOHN MATHEW, SC, KSRTC R3 BY ADV. SRI.M.PREMCHAND, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3010 OF 2016** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1160 of 2015 on the file of the Motor Accidents Claims Tribunal, Kozhikode, 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 07.04.2014, while he was riding a motorcycle bearing registration No.KL-11/AA-6338. At the place of accident, he was knocked down by a KSRTC bus bearing registration No.KL-15/7412, owned by the 1[st] respondent, driven 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 bus by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.12,45,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 filed written statement admitting the accident; however, denying the negligence alleged against the 2[nd] respondent driver. They contended that the accident occurred due to the rash and negligent riding of motorcycle by the appellant/claimant. The age, **MACA.No.3010 OF 2016** 3 occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the bus involved in the accident; however, denying negligence alleged against the 2[nd] 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. 4. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. The document marked as Ext.C1 is the disability certificate. The respondents have not chosen to adduce any oral or documentary evidence. 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 bus by the 2[nd] respondent driver. Since insurance coverage of the said 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.5,33,350/-, together with interest at the rate of 9% per annum **MACA.No.3010 OF 2016** 4 from the date of petition till date of deposit, with proportionate cost and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/claimant, the learned Standing Counsel for the 1[st] respondent KSRTC 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 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 **MACA.No.3010 OF 2016** 5 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 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; |Sl.<br>No.|The<br>compensation<br>claimed under different<br>heads|Amount<br>claimed|Amount<br>allowed|| |---|---|---|---|---| |1|Loss of earnings due to<br>the accident|1,00,000|Nil|Being a student| |2|Transport to hospital|10,000|2,000|| **MACA.No.3010 OF 2016** 6 |3|Hospitalisation for 25<br>days asper A3 & A4|25,000|20,000|800 x 25| |---|---|---|---|---| |4|Medical expenses as per<br>A7 series|50,000|2,37,500|Less objected bills<br>for Rs.7,500/-| |5|Future treatement|Nil|81,850|| |6|Pain and sufferings|2,00,000|20,000|| |7|Loss of amenities|2,50,000|10,000|| |8|Compensation for loss of<br>income due to 20%<br>disability as per C1 with<br>50% towards loss in<br>future prospects|3,00,000|1,62,000|(30000+15000)x18<br>x20%| ||||5,33,350|| 12. The accident occurred on 07.04.2014. At the time of accident, the appellant was aged 19 years. He claimed a monthly income of Rs.10,000/- as Computer Professional. 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 annual income notionally as Rs.30,000/-, 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 **MACA.No.3010 OF 2016** 7 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. 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 **MACA.No.3010 OF 2016** 8 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. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2014, 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.9,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound certificate and Exts.A3 to A5 are discharge summaries. As per Ext.A2, the appellant sustained Type III open fracture supramalleolar left leg with exposed fracture, fracture distal tibia, debridment ad vac application under SAB (surgery) and propeller flap cover and SSG under SAB (surgery). He had undergone **MACA.No.3010 OF 2016** 9 inpatient treatment for a period of 25 days. Ext.A7 series of medical bills are for a sum of Rs.2,45,197/-. The Tribunal accepted medical bills for a sum of Rs.2,37,500/-. 17. The document marked as Ext.C1 is the disability certificate issued by a doctor appointed by the Tribunal, in which the percentage of permanent disability is assessed as 20%. The Tribunal accepted the assessment of disability in Ext.C1 for the purpose of awarding compensation under various heads. 18. The Tribunal awarded no amount towards loss of earning. 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 for a period of 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.9,500/-, the compensation under the head loss of earning comes to **Rs.38,000/-** (9,500 x 4). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 25 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical **MACA.No.3010 OF 2016** 10 records, the compensation under this head is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs.1,000/-** (3,000 – 2,000). 20. Towards Hospitalisation charges, the Tribunal awarded a sum of Rs.20,000/-. The accident is of the year 2014 and the appellant had undergone inpatient treatment for a period of 25 days. The appellant can be granted a sum of Rs.6,250/- (250 x 25) under the head bystander expenses and a sum of Rs.3,750/(150 x 25) under the head extra nourishment. Therefore, the total compensation payable under the head hospitalisation charges is scaled down to Rs.10,000/- (6,250 + 3,750), resulting an **excess payment** of **Rs.10,000/-** (20,000-10,000). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.2,37,500/-, covered by Ext.A7 series of medical bills, less objected bills for a sum of Rs.7,500/-. 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. 22. Towards future treatment, the Tribunal awarded a sum of Rs.81,850/-. The basis for award of such an amount towards **MACA.No.3010 OF 2016** 11 future treatment is not discernible from the impugned award. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under this head is scaled down to Rs.15,000/-, resulting an **excess payment** of **Rs.66,850/-** (81,850 – 15,000). 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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 **MACA.No.3010 OF 2016** 12 [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. ## 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 19 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 **MACA.No.3010 OF 2016** 13 correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,62,000/- [(30,000 + 15,000) x 18 x 20/100)]. The Tribunal fixed the annual income of the appellant as Rs.30,000/- and added Rs.15,000/- (50% of Rs.30,000/-) towards future prospects. 28. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11 th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is **MACA.No.3010 OF 2016** 14 restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a notional monthly income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, **MACA.No.3010 OF 2016** 15 that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and **MACA.No.3010 OF 2016** 16 keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 29. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** , to injured persons having higher percentage of functional disability. 30. In the instant case, Ext.C1 disability certificate is one issued by an individual doctor. The nature of disabilities noted in Ext.C1 would make it clear that the case of the appellant will not fall within the category of cases with higher percentage of functional disability. Therefore, the appellant is not entitled for payment of disability compensation, by adding future prospects. **MACA.No.3010 OF 2016** 17 31. Since the monthly income of the appellant is re-fixed notionally as Rs.9,500/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 20%, the compensation under the head permanent disability is re-fixed as Rs.4,10,400/- (9,500 x 12 x 18 x 20/100), resulting an additional compensation of **Rs.2,48,400/-** (4,10,400 - 1,62,000). 32. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. In Ext.C1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 20%. Considering the nature of injuries sustained and the permanent disability that has been assessed in Ext.C1 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.10,000/-** (20,000 – 10,000). In the result, the appellant will be entitled for payment of an additional compensation of **Rs.2,20,550/-** (Rupees two lakhs twenty thousand five hundred and fifty only) [(38,000 + 1,000 + 2,48,400 + 10,000) – (10,000 + 66,850)] in this appeal, which **MACA.No.3010 OF 2016** 18 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 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** JV