G. Harikumar v. Radhakrishnan S/o Sadasivan Nair & Others; The Branch Manager, The New India Assurance Co. Ltd. (MACA No. 33 of 2020(D))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941** ## **MACA.No.33 OF 2020(D)** **AGAINST THE AWARD IN OP(MV)No.63/2012 DATED 30-11-2018 OF ADDITIONAL DISTRICT COURT-II & MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKARA** ## **APPELLANT:** **G.HARIKUMAR,AGED 32 YEARS,S/O.GANGADHARAN, KIDANGEL THEKKETHIL, KRISHNAPURAM VILLAGE, KRISHNAPURAM PANCHAYAT, WARD NO.12, KAYAMKULAM, ALAPPUZHA DISTRICT - 690502.** **BY ADV. SRI.RENJIT GEORGE** ## **RESPONDENTS:** **1 RADHAKRISHNAN,S/O.SADASIVAN NAIR, THACHETHU HOUSE (PRANAVAM), MUPPATHADAMKARA, ELOOR SOUTH, KODUNGALLOOR VILLAGE, NORTH PARAVOOR, PARAVOOR TALUK, ERNAKULAM DISTRICT-683 110. 2 SIVAPRASAD S.,PRANAVAM, MUPPATHADAMKARA,KODUNGALLOOR VILLAGE, MUPPATHADAM P.O., PARAVOOR TALUK, ERNAKULAM DISTRICT-683 110. 3 AUGUSTINE.K.E., KURISINKAL HOUSE, EDAPPALLY, KOCHI, ERNKAULAM DISTRICT-682 024.** - **4 THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO.LTD., 2ND FLOOR, RAMAN CENTRE, VALANJAMBALAM, ERNAKULAM DISTRICT KOCHI-682 016.** ## **OTHER PRESENT:** ## **SRI A.A. ZIYAD RAHMAN - STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.33 of 2020 **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.63 of 2012 on the file of the Motor Accidents Claims Tribunal, Mavelikara, 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 29.09.2009, while he was riding a motorcycle bearing registration No.KL-4/B-6730. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-07/AY6236 driven by the 1[st ] respondent, owned by the 2[nd] respondent, and insured with the 4[th] respondent. The 3[rd] respondent is the insured of the car. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.8,00,000/- under various heads. 2. Before the Tribunal, the respondents 1 to 3 remained absent and they were set ex parte. 3. The 4[th] respondent insurer filed written statement admitting insurance coverage of the car involved in the MACA No.33 of 2020 **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 driving of motorcycle by the appellant. 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 A27 were marked on the side of the appellant/claimant. The appellant and another were examined as Pws.1 and 2. 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 car by the 1[st] respondent driver. Since the said vehicle was covered by a valid insurance policy, the 4[th] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,80,657/-, together with interest at the rate of 7.5% per annum from the date of petition i.e., 06.01.2012 till date of realisation, with proportionate cost, and the 4[th] respondent insurer was directed to satisfy the MACA No.33 of 2020 **4** 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 Standing Counsel for the 4[th] 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.33 of 2020 **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; |Sl.<br>No.|The compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earnings|1,60,000/-|20,000/-|earnings for 5<br>months| |2.|Partial<br>loss<br>of<br>earnings|||| |3|Transport to hospital||4,000/-|| MACA No.33 of 2020 **6** |4|Extra nourishment|2,40,000/-|2,000/-|Reasonable estate| |---|---|---|---|---| |5|Damage to clothing||500/-|Reasonable estate| |6|Medical expenses||31,093/-|As per Ext.A18 to<br>Ext.A22.| |7|Bystander's expenses<br>future treatment||7,800|39 days IP @200| |8|Pain and suffering<br>compensation<br>for<br>disfiguration|1,00,000/-|20,000/-|Considering the<br>injuries| |9|Disability income|10,000/-|75,264/-|| |10|Compensation for loss<br>of earning power|2,00,000/-|Nil|| |11|Loss of amenities<br>compensation<br>for<br>deformity||20,000/-|Considering the<br>injuries.| ||Total|8,00,000/-|1,80,657/-|| 12. The accident occurred on 29.09.2009. At the time of accident, the appellant was aged 31 years. He claimed a monthly income of Rs.6,000/- as Salesman. In order to prove monthly income, Ext.A24 letter was marked through PW2. 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 working as a coolie MACA No.33 of 2020 **7** 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 MACA No.33 of 2020 **8** 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. 15. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2009, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.6,000/- claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 16. The document marked as Exts.A3 and A4 are the discharge cards. Ext.A7 is the copy of wound certificate. As per medical records, in the accident, the appellant sustained minimal Subarachnoid hemorrhage; hemorrhagic contusion in MACA No.33 of 2020 **9** caudate nucleus; fracture of lateral wall of right maxillary sinus; fracture of right clavicle; fracture of left tibial plateau with knee dislocation; and fracture of P3 of left index finger. He had undergone inpatient treatment for a period of 39 days. Exts.A18 to A21 series of medical bills are for a sum of Rs. 31,093/-. 17. As per Ext.X1 disability certificate, the Medical Board at Medical College Hospital, Alappuzha, assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 9%. The learned counsel for the 4[th] respondent insurer raised a contention that the disability assessed by the Medical Board is on the higher side, which cannot be accepted without examining the doctor concerned. The Tribunal took the percentage of disability as 7% for the purpose of awarding compensation under the head permanent disability. 18. The assessment of disability in Ext.X1 is by the Medical Board attached to the Medical College Hospital, Alappuzha. In the absence of any vitiating circumstances pointed out in the assessment of disability by the Medical Board, the Tribunal went wrong in scaling down the percentage MACA No.33 of 2020 **10** of disability to 7%. Considering the nature of injuries and the disabilities, the percentage of permanent disability is taken as 9%, as assessed by the Medical Board in Ext.X1, for the purpose of assessing compensation under various heads. 19. Towards loss of earning, 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 just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.6,000/-, the compensation under the head loss of earning is re-fixed as Rs.30,000/- (6,000 x 5), resulting an additional compensation of **Rs.10,000/-** (30,000 - 20,000). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 39 days. The accident is of the year 2009. Towards transportation to hospital, the Tribunal awarded a sum of Rs.4,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the MACA No.33 of 2020 **11** compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards bystander expenses the Tribunal awarded a sum of Rs.7,800/- (200 x 39). Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2009 and the appellant had undergone inpatient treatment for 39 days. 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 towards bystander expenses represents just and reasonable compensation, which requires no enhancement in this appeal. The compensation under the head extra nourishment is re-fixed as Rs.5,850/- (150 x 39), resulting an additional compensation of **Rs.3,850/-** (5,850 - 2,000). 22. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2009, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). MACA No.33 of 2020 **12** 23. Towards medical expenses, the Tribunal awarded a sum of Rs.31,093/-, covered by Exts.A18 to A21 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. 24. 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 the head pain and suffering is re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.5,000/-** (25,000 - 20,000) under this head. 25. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th 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 MACA No.33 of 2020 **13** 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 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 monthly notional 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 MACA No.33 of 2020 **14** 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, 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 MACA No.33 of 2020 **15** 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 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]** . 26. 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 MACA No.33 of 2020 **16** 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]** . A reading of the said decision would show that the injured before the Apex Court were having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity, and it was in such circumstances that the Apex Court granted them disability compensation by adding future prospects. 27. In the impugned award, the Tribunal added 40% of the notional monthly income of the appellant towards future prospects. As per Ext.X1 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is only 9%. Considering the nature of injuries sustained and the permanent disability arising therefrom, the appellant cannot be treated as an injured having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity. Therefore, the appellant is not entitled for grant of compensation under the head permanent disability, MACA No.33 of 2020 **17** adding future prospectus to his notional monthly income. 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 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. MACA No.33 of 2020 **18** 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.75,264/- [(4,000 + 1,600) x 12 x 16 x 7/100). Since the monthly income of the appellant is refixed notionally as Rs.6,000/-, applying the multiplier of 16 applicable to the age group of the appellant and the percentage of permanent disability as 9%, the compensation under the head permanent disability is re-fixed as Rs.1,03,680/- (6,000 x 12 x 16 x 9/100), resulting an additional compensation of **Rs.28,416/-** (1,03,680 - 75,264). MACA No.33 of 2020 ## **19** 32. Towards loss of amenities the Tribunal awarded a sum of Rs.20,000/-. In Ext.X1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 9%. Considering the nature of injuries sustained and 9% permanent disability on account of those injuries, as assessed in Ext.X1 disability certificate, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 33. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.47,766/-** (Rupees Forty seven thousand seven hundred and sixty six only) [10,000 + 3,850 + 500 + 5,000 + 28,416] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 286 days in filing this appeal, which was condoned by the order dated 10.02.2020, subject to the condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said amount for the period of delay. The 4[th] respondent insurer shall satisfy the additional MACA No.33 of 2020 **20** 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 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.D1-62475/2016 dated 07.11.2019. The appellant shall provide 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** MIN