Garbin v. Sunil P.J. and another and United India Insurance Co. Ltd. (MACA No. 2216 of 2007)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941** ## **MACA.No.2216 OF 2007** **AGAINST THE AWARD IN OPMV 1326/2002 DATED 05-05-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/S:** **GARBIN, AGED 27 YEARS, S/O. SEBASTIAN VELIYIL VEEDU, WARD NO.15 OF KUTHIATHODU, PANCHAYATH, CHERTHALA TALUK, ALAPPUZHA DISTRICT.** ## **BY ADV. SRI.S.SHANAVAS KHAN** ## **RESPONDENT/S:** - **1 SUNIL P.J., S/O. JACOB, POOTHARASSERIL, KATTOOR (PO), ALAPPUZHA.** - **2 ROBERT A.J. ARATTUKULANGARA POLLATHAI (P.O), ALAPPUZHA.** - **3 UNITED INDIA INSURANCE CO.LTD. CHERTHALA BRANCH, CHERTHALA (PO),, CHERTHALA.** **R3 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 2216 of 2007 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1326 of 2002 on the file of the Additional Motor Accidents Claims Tribunal, Alappuzha, which is 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 06.07.2002, while he was travelling in a mini lorry. At the place of accident, the said mini lorry was hit by another mini lorry bearing registration No.KL-4/D-5927, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the offending mini lorry by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/-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 the insurance coverage of the offending mini lorry; however, denying the -3- MACA. No. 2216 of 2007 negligence alleged against the 1[st] respondent driver. It was contended that the accident occurred due to the negligence of the driver of the mini lorry in which the appellant/claimant was travelling. 3. Before the Tribunal, Exts.A1 to A18 were marked on the side of the appellant/claimant. Respondents have not chosen to adduce any oral or documentary 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 offending mini lorry by the 1[st] respondent driver. Since insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.35,250/-, and the insurer was directed to satisfy the award, with interest at the rate of 6% per annum from the date of petition till realisation. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. -4- MACA. No. 2216 of 2007 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since the insurance coverage of the offending vehicle is admitted by the 3[rd] respondent/insurer, service of notice on respondents 1 and 2 was dispensed with, by the order of this Court dated 17.10.2019. 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 -5- MACA. No. 2216 of 2007 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 of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Head|Amount-<br>Rs.|Brief reasons| |---|---|---| |Transportation|1000|| |Damages to clothing|250|| -6- MACA. No. 2216 of 2007 |Extra Nourishment|500|| |---|---|---| |Attendant expenses|500|| |Treatment expenses|7000|| |Loss of earnings|8000|At the rate of 1500/- p.m. for<br>two months| |Pain and sufferings|12000|| |Loss of amenities in life and<br>enjoyment|6000|| |Compensation for occasional<br>functionalproblems|5000|| |**Total**|**35,250/-**|| 11. The accident occurred on 06.07.2002. At the time of accident, the appellant was aged 22 years. The learned counsel for the appellant would submit that the monthly income claimed by the appellant is Rs.2,000/-. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.1,500/-, for the purpose of assessing compensation under different heads. ## 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 -7- MACA. No. 2216 of 2007 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 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 -8- MACA. No. 2216 of 2007 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 2002, 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.2,000/- claimed by the appellant is not on the higher side, which can be taken as his notional monthly income, for the purpose of assessing compensation under various heads. 15. Ext.A5 wound certificate issued from KVM Hospital, Cherthala would show that as a result of the accident, the -9- MACA. No. 2216 of 2007 appellant sustained the deformity with pain and lenderness middle 3[rd] of upper arm; multiple abrasion of varying sizes of left side of the face, left side of neck left shoulder, left wrist, left palm, both knee joints; abrased contusion of 6 x 4cm sixe over the left poplital region; multiple abrasion of verying sizes left side of the face, left side of neck (L) shoulder, left wrist, left palm; and an abraded contusion of 6 cm x 4 cm size over the left poplital region. He suffered fracture of shaft of humerus and fracture of survical spine. He had undergone inpatient treatment for a period of three weeks. In Ext.A14 disability certificate issued by the Medical Board, the percentage of permanent disability is assessed as 24%. 16. In paragraph 7 of the Award, the Tribunal noticed that in Ext.A14 disability certificate it is mentioned that the disability comes under mild category. The Tribunal observed that the treatment records will satisfactorily show that the petitioner has not suffered any disability of permanent nature affecting his ability to earn and has only occasional functional problems due to the survical spine injury. Therefore, the Tribunal awarded a lumpsum compensation of Rs.5,000/- -10- MACA. No. 2216 of 2007 under the head compensation for occasional functional problems. 17. Permanent disability of less than 40% which is categorised as disability of 'mild category' under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, will certainly dis-entitle a person from claiming benefits under the said Act. However, categorisation of permanent disability below 40% as disability of 'mild category' in the disability certificate issued by the Medical Board will not dis-entitle a person, who sustained injuries in a motor accident, from claiming just and reasonable compensation under the head disability compensation, based on the percentage of permanent disability assessed by the Medical Board. Therefore, the percentage of permanent disability assessed by the Medical Board as 24% in Ext.A14 can be taken for granting compensation under the head permanent disability. Considering the nature of injuries sustained and the disability that had arisen out of those injuries, as borne out from medical records, the appellant, who is a fisherman, is entitled -11- MACA. No. 2216 of 2007 for disability compensation treating the percentage of permanent disability as 24%, as certified in Ext.A14. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.3,000/-, at the rate of Rs.1,500/- per month for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 months fixed by the Tribunal is re-fixed as 4 for granting loss of earning. Since the monthly income of the appellant is re-fixed notionally as Rs.2,000/-, the compensation under the head loss of earning is re-fixed as Rs.8,000/- (Rs.2,000/- x 4) resulting an additional compensation of Rs. **5,000** /- (8,000 – 3,000). 19. Towards extra nourishment, the Tribunal awarded a sum of Rs.500/-. The appellant had undergone inpatient treatment for 25 days. Therefore, the compensation under this head is refixed as Rs.2,500/- (Rs.100 x 25), resulting an additional compensation of **Rs.2,000** /- (2,500 - 500). 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.250/-. Considering the fact that -12- MACA. No. 2216 of 2007 the accident is of the year 2014, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.1,250** /- (1,500 - 250). 21. Towards attendance expenses, the Tribunal awarded a sum of Rs.500/-. The appellant had undergone inpatient treatment for 25 days. Therefore, the compensation under this head is refixed as Rs.3,750/- (Rs.150 x 25), resulting an additional compensation of **Rs.3,250/-** (3,750 - 500). 22. Towards treatment expenses, the Tribunal awarded a sum of Rs.7,000/- covered by Ext.A16 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head is just and reasonable. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. 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 is refixed as Rs.15,000/-, resulting an additional compensation -13- MACA. No. 2216 of 2007 ## of Rs. **3,000** /- (15,000 – 12,000). 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 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. -14- MACA. No. 2216 of 2007 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 22 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 correct and proper. 27. As compensation for functional disability, the Tribunal awarded a consolidated amount of Rs.5,000/-. Considering the nature of injuries sustained and 24% permanent disability, as certified in Ext.A14 disability certificate, the appellant is granted Rs.1,03,680/- (Rs.2,000 x 12 x 18 x 24/100), under the head permanent disability. Deducting Rs.5,000/- granted under the head compensation for functional disability, the appellant will be entitled for a sum -15- MACA. No. 2216 of 2007 of Rs. **98,680/-** (1,03,680 – 5000) under the head permanent disability. 28. Towards loss of amenities the Tribunal awarded a sum of Rs.6,000/-. Considering the nature of injuries sustained and 24% permanent disability certified by the Medical Board in Ext.A14 disability certificate, the compensation awarded by the Tribunal under this head is refixed as Rs.25,000/-, resulting an additional compensation of Rs. **19,000** /- (25,000 – 6,000). 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,32,180/-** (Rupees one lakh thirty two thousand one hundred and eighty only) [5,000 + 3,000 + 19,000 + 98,680 + 1250 + 2000 + 3250] in this appeal. 30. The appeal was filed with a delay of 89 days. The delay was condoned by order dated 17.10.2019 in CM. Appln.No.2328 of 2007, subject to the condition that the question as to whether the appellant will be entitled to interest for the enhanced compensation, for the period from 5.12.2007 till 17.10.2019 for not paying process to serve -16- MACA. No. 2216 of 2007 notice on the respondents, is left open to be decided at the time of final hearing. In such circumstances, rate of interest for the additional compensation granted in this appeal will be 7% 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. 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 JUDGE** das