Fr. Xavier Sajan v. Ajaya Kumar M.K, Muneer K.M. and Oriental Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** # **MACA.No.1697 OF 2013(C)** **AGAINST THE AWARD IN O.P.(MV) NO.1127/2008 DATED 12-04-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT:** **FR. XAVIER SAJAN, AGED 32 YEARS, S/O. ANTONY PADIYARAM PARAMBIL, ASST. VICAR, ST. JUDE CHURCH, THEVARA, ERNAKULAM DISTRICT.** **BY ADVS. SRI.JOHN MATHEW SMT.M.BINDUDAS** ## **RESPONDENTS:** |**1**|**AJAYA KUMAR M.K,**| |---|---| ||**AGED 30 YEARS, S/O. KUTTAPPAN,**| ||**KALAMBATTU (VALIYAPARAMBU) HOUSE,**| ||**BEHIND MAKTHAI TEMPLE,**| ||**NORTH PARUR, ERNKULAM.**| |**2**|**MUNEER K.M.,**| ||**S/O.MUHAMMED,**| ||**KALLUNGAL HOUSE,**| ||**THAIKKATTUKARA, CHOORNIKKARA,**| ||**ALUVA, ERNAKULAM.**| |**3**|**ORIENTAL INSURANCE COMPANY LTD.,**| ||**BRANCH OFFICE, P.B.NO.8,**| ||**JYOTHI SUPER BAZAR,**| ||**THODUPUZHA.**| ||**R3 BY ADV. SRI.P.JACOB MATHEW**| ||**R3 BY ADV. SRI.MATHEWS JACOB SR.**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1697 of 2013(C) -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.1127 of 2008 on the file of the Motor Accidents Claims Tribunal, Ernakulam, 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 05.08.2006, while he was riding a motorcycle bearing registration No.KL-7/AR-3958. At the place of accident, the motorcycle was hit by a tipper lorry bearing registration No.KL05/J-2309 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the tipper lorry by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.20,11,651/under various heads, which was limited to Rs.15,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 an 2 remained absent and they were set ex-parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the tipper lorry involved in the MACA No.1697 of 2013(C) -3- accident; however, denying negligence alleged against the 1[st] respondent driver. The insurer contended that the accident occurred due to the rash and negligent riding of motorcycle by the claimant. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A15 were marked on the side of the claimant and he was examined as PW1. The document marked as Ext.C1 is the disability certificate issued by the Medical Board at Government Medical College Hospital, Kottayam assessing the permanent disability of the claimant, on account of the injuries sustained in the accident. 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 tipper lorry 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 Rs.9,19,500/-, together with interest at the rate of 8% per annum from the date of petition till realisation, with proportionate cost, and the MACA No.1697 of 2013(C) -4- 3[rd] respondent 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 and also the learned Senior 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 clearly indicate that the MACA No.1697 of 2013(C) -5- 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; |Heads|Amount<br>claimed|Amount<br>allowed|| |---|---|---|---| |Compensation for loss of income|48,000/-|20,000/-|| |Compensation for disfiguration|1,00,000/-|50,000/-|| |Transport to hospital and back<br>home|10,000/-|3,000/-|| |Compensation for pain and|1,00,000/-|50,000/-|| MACA No.1697 of 2013(C) -6- |suffering|||| |---|---|---|---| |Damage to clothes and articles|10,000/-|1,000/-|| |Extra nourishment|25,000/-|5,000/-|| |Medical expenses|4,38,651/-|3,52,000/-|Ext.A15 bills for<br>Rs.3,51,691/-| |Bystander expenses|30,000/-|6,300/-|42 x 150| |Compensation for continuing and<br>permanent physical disability|7,50,000/-|3,07,200/-|(4,000 x 12 x 16 x<br>40%)| |Compensation for loss of<br>amenities and enjoyment in life|2,00,000/-|75,000/-|| |Compensation for future<br>treatment|3,00,000/-|50,000/-|| |TOTAL<br>**Claim limited to Rs.2,50,000/-**|20,11,651/-|9,19,500/-|| 12. The accident occurred on 05.08.2006. At the time of accident, the appellant was aged 31 years. He claimed a monthly income of Rs.6,000/- as Priest. The appellant was examined as PW1. No materials were produced before the Tribunal to prove the monthly income of the appellant. In the absence of any reliable materials, the Tribunal fixed the monthly income, notionally, as Rs.4,000/-, 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 MACA No.1697 of 2013(C) -7- 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 cannot be expected to produce MACA No.1697 of 2013(C) -8- 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 Rs.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 decisions referred to supra, and also the evidence of PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.5,750/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A9 is the wound certificate issued from Medical Trust Hospital, Ernakulam. Exts.A10 to A12 are discharge summaries. As per medical records, in the accident, the appellant sustained comminuted fracture on frontal bone; bilateral supraorbital fracture; fracture nasal bone; bilateral zygomaxillary fracture; bilateral MACA No.1697 of 2013(C) -9- orbital floor fracture; left maxillary comminuted fracture; left eye EOM - absent, Left eye vision - absent with left eye laterally and inferiorly displaced; and bilateral parasymphyseal fracture (segmental fracture) left plus lower central, lateral incisor and 1[st] molar teeth loss. He had undergone inpatient treatment for a period of 42 days. Ext.A15 series of medical bills are for a sum of Rs.3,51,691/-. 17. The document marked as Ext.C1 disability certificate issued by the Medical Board in which the permanent whole body disability of the appellant, on account of the injuries sustained in the accident, is assessed as 51%. The Tribunal took the percentage of permanent disability as 40%, considering the nature of work being done by the appellant as a Priest. 18. In **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343]** , the Apex Court laid down the principles governing assessment of future loss of earning due to permanent disability. The Apex Court held that where the claimant suffers a permanent disability as a result of the injuries, the assessment of compensation under the head loss of future earnings would depend upon the effect and impact of such MACA No.1697 of 2013(C) -10- permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What requires to be assessed by the Tribunal is the effect of permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependancy). 19. In **Raj Kumar** , the Apex Court held that, if the Tribunal concludes that there is permanent disability as a result of the injuries, then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a MACA No.1697 of 2013(C) -11- result of the permanent disability. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood; or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on; or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. When compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear or a token or nominal amount may have to be awarded under that head. 20. In the instant case, in Ext.C1 disability certificate, the Medical Board assessed the permanent whole body disability of the appellant, on account of the injuries sustained in the accident, as 51%. The Tribunal took it as 40%. MACA No.1697 of 2013(C) -12- Considered the nature of injuries sustained and the disabilities noted in Ext.C1, in the light of the law laid down by the Apex Court in **Raj Kumar** , the loss of future earning capacity of the appellant, who is a Priest, on account of the injuries sustained in the accident, is taken as 45%, for the purpose of awarding compensation under various heads. 21. Towards loss of income, the Tribunal awarded a sum of Rs.20,000/-, at the rate of Rs.4,000/- for a period of 5 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 5 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.5,750/-, the compensation under the head loss of earning is re-fixed as Rs.34,500/- (5,750 x 6), resulting an additional compensation of **Rs.14,500/-** (34,500 - 20,000). 22. As compensation for disfiguration, the Tribunal awarded a sum of Rs.50,000/- and a further sum of Rs.75,000/- is awarded as loss of amenities. The photographs of the appellant showing serious disfiguration on his forehead and nasal bones are made available for the perusal of this MACA No.1697 of 2013(C) -13- Court by the learned counsel for the appellant. Considering the nature of disfiguration, the compensation under this head is re-fixed as Rs.75,000/-, resulting an additional compensation of Rs.25,000/- (75,000 – 50.000). At the same time, Rs.75,000/- awarded by the Tribunal under the head loss of amenities is on the higher side, considering 45% permanent disability on account of the injuries sustained in the accident, as taken by this Court. Therefore, the compensation under the head loss of amenities is scaled down to Rs.50,000/-, which would represent just and reasonable compensation, resulting an excess payment of Rs.25,000/- (75,000 – 50,000), which is adjusted towards the additional compensation granted under the head disfiguration. 23. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 42 days. The accident is of the year 2006. Towards transportation to hospital, the Tribunal awarded a sum of Rs,3,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.4,000/-, resulting an additional compensation of MACA No.1697 of 2013(C) -14- ## **Rs.1,000/-** (4,000 - 3,000). 24. Towards bystander expenses, the Tribunal awarded a sum of Rs.6,300/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.5,000/-. The accident is of the year 2006 and the appellant had undergone inpatient treatment for 42 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under the head bystander expenses is re-fixed as Rs.8,400/- (200 x 42), resulting an additional compensation of **Rs.2,100/-** (8,400 - 6,300). The compensation under the head extra nourishment is re-fixed as Rs.6,300/- (150 x 42), resulting an additional compensation of **Rs.1,300/-** (6,300 - 5,000). 25. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. The accident is of the year 2006. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 26. Towards medical expenses, the Tribunal awarded a sum of Rs.3,52,000/-, covered by Ext.A15 series of medical bills. In the absence of any further materials, the MACA No.1697 of 2013(C) -15- compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 27. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.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. 28. 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 MACA No.1697 of 2013(C) -16- 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. 29. 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. 30. In the instant case, as on the date of accident, the appellant was aged 31 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 **16** applied by the Tribunal is correct and proper. 31. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.3,07,200/- (4,000 x 12 x 16 x MACA No.1697 of 2013(C) -17- 40/100). Since the monthly income of the appellant is re-fixed notionally as Rs.5,750/-, applying the multiplier of 16 applicable to the age group of the appellant and the percentage of permanent disability as 45%, the compensation under the head permanent disability is re-fixed as Rs.4,96,800/- (5,750 x 12 x 16 x 45/100), resulting an additional compensation of **Rs.1,89,600/-** (4,96,800 - 3,07,200). 32. Towards future treatment, the Tribunal awarded a sum of Rs.50,000/-. Considering the nature of injuries sustained and the disabilities noted in Ext.C1, and also the serious disfiguration on the forehead and nasal bones, the compensation awarded by the Tribunal cannot be said to be on the lower side, which requires no enhancement in this appeal. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.2,08,500/-** (Rupees two lakh eight thousand five hundred only) [14,500 + 1,000 + 2,100 + 1,300 + 1,89,600] in this appeal, 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 MACA No.1697 of 2013(C) -18- 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 additional compensation to the appellant/claimant shall be made taking note of the law on the point and 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.D162475/2016 dated 07.11.2019. The appellant shall submit his Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- ## **ANIL K. NARENDRAN JUDGE** bpr