George Joseph K. v. United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941** **MACA.No.3656 OF 2019** **AGAINST THE AWARD IN OP(MV)NO.114/2018 DATED 13-06-2019 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, TALIPARAMBA** ## **APPELLANT/PETITIONER :** **GEORGE JOSEPH K., AGED 43 YEARS, S/O.PHILOMINA, KONGOLA VEEDU, ARAVANCHAL, P.O.ARAVANCHAL, TALIPARAMBA TALUK, KANNUR DISTRICT.** ## **BY ADV. SRI.M.V.AMARESAN** ## **RESPONDENT/RESPONDENT NO.3 :** **UNITED INDIA INSURANCE COMPANY LTD., OPP.RC CHURCH, NATIONAL HIGHWAY, PAPPINISSERY, P.O.PAPPINISSERY, KANNUR DISTRICT, REPRESENTED BY ITS BRANCH MANAGER, PIN - 670 561.** ## **OTHER PRESENT:** ## **SRI P.K. MANOJ KUMAR -STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.3656 of 2019 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.114 of 2018 on the file of the Motor Accidents Claims Tribunal, Taliparamba, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 29.05.2017, while he was riding a motorcycle bearing registration No.KL-59/H-9087. At the place of accident, the motorcycle was hit by a bus bearing registration No.KL59/P-6053, driven by the 1[st] respondent and owned by the 2[nd] respondent before the Tribunal and insured with the respondent herein. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the offending bus by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,31,500/-, under various heads, which was limited to Rs.3,50,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. The 3[rd] respondent insurer M.A.C.A.No.3656 of 2019 3 filed written statement admitting the insurance coverage of the offending bus; however, denying the negligence alleged against its 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. 3. Before the Tribunal, Exhibits A1 to A11 series were marked on the side of the appellant/claimant. The disability certificate was marked as Exhibit X1. 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 on account of the rash and negligent driving of offending bus by its driver. Since insurance coverage of the offending 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.2,68,614/- and directed the respondent insurer to satisfy the said amount together with interest at the rate of 9% per annum from the date of petition, i.e. 17.02.2018, till the date of realisation, with proportionate cost. 5. Dissatisfied with the quantum of compensation M.A.C.A.No.3656 of 2019 4 awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the respondent insurer. 7. The issue that arises for consideration in this appeal is as to whether the appellant/claimant 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. M.A.C.A.No.3656 of 2019 5 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 as follows; |Sl.No<br>.|Head of Claim|Amount<br>Claimed<br>(in Rupees)|Amount<br>Awarded<br>(in Rupees)|Basis-vital<br>details in a<br>nut shell| |---|---|---|---|---| |1|Loss of earnings|25,000/-|21,000/-|| |2|Partial loss of<br>earning|---|---|| |3|Transportation<br>charges|30,000/-|24,500/-|(Ext.A11<br>series)| |4|Extra Nourishment|50,000/-|2,000/-|| M.A.C.A.No.3656 of 2019 |.A.C.A.No.3656 of 2019|.A.C.A.No.3656 of 2019|.A.C.A.No.3656 of 2019|.A.C.A.No.3656 of 2019|.A.C.A.No.3656 of 2019| |---|---|---|---|---| |6||||| |5|Damages to<br>clothing& articles|1,500/-|1,000/-|| |6|Medical Expenses|1,00,000/-|70,074/-|(Ext.A10<br>series)| |7|Bystander's<br>expenses|---|4,200/-|(600 x 7<br>days)| |8|Pain and sufferings|1,00,000/-|30,000/-|| |9|Compensation for<br>loss of amenities|1,00,000/-|10,000/-|| |10|Compensation for<br>continuing<br>permanent<br>disability|1,00,000/-|1,05,840/-|(Ext.X1)<br>(21000x12x<br>14x3/100)| |11|Compensation for<br>future treatment|25,000/-||| ||**Total**|**5,31,500/- **|**2,68,614/-**|| ||Claim limited to|**3,50,000/-**||| 11. The accident occurred on 29.05.2017. At the time of accident, the appellant was aged 42 years. He was an Exservice man. After retirement he is working as Home Guard at Fire and Rescue Station, Peringome, since 22.08.2014, drawing an emolument of Rs.21,000/- per month, as certified by the Station Officer, Fire and Rescue Station, Peringome, in Exhibit A9 employment certificate. Exhibits A3 and A5 are discharge summaries and Exhibit A4 is the wound certificates. 12. The learned counsel for the appellant would point M.A.C.A.No.3656 of 2019 7 out that as per Ext.A3 and A5 the appellant sustained abrasion (L) side scalp and abrasion (L) knee. X-ray showed left 3[rd] and 7[th] rib fracture and CT scan report showed displaced healing fractures along posterior aspect of 3[rd] and 8[th] ribs on left side. After the accident, the appellant was taken to Co-operative Hospital, Payyannur. He was referred to Pariyaram Medical College. Later, he was taken to KMC Hospital, Mangalore. The appellant had undergone in patient treatment for the period from 29.05.2017 to 04.06.2017. 13. In Ext.X1 disability certificate, issued by the Medical Board at Taluk Head Quarters Hospital, Thaliparamba, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 3%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 14. The Tribunal awarded a sum of Rs.21,000/- towards loss of earning for a period of one month. Considering the nature of injuries sustained, which includes rib fracture, and the treatment the appellant had undergone, this Court deem it appropriate to grant loss of earning for a period of three M.A.C.A.No.3656 of 2019 8 months. In such circumstances, the compensation under the head of loss of earning is enhanced to Rs.63,000/- (21,000 x 3), resulting an additional compensation of **Rs.42,000/-** (63,000 - 21,000). 15. The Tribunal awarded a sum of Rs.24,500/- towards transportation charges, covered by A11 series of bills. Towards medical expenses the Tribunal awarded a sum of Rs.70,074/covered by Exhibit A10 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 16. Towards damages to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2017, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** . 17. Towards extra nourishment, the Tribunal awarded a sum of Rs.2,000/-. Towards bystander expenses the Tribunal awarded a further sum of Rs.4,200/-. Considering the nature of injuries sustained by the appellant and the inpatient treatment he had undergone for 7 days, the compensation M.A.C.A.No.3656 of 2019 9 awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 18. Towards the pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. Considering the nature of injuries sustained by the appellant and the treatment he had undergone, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. 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 M.A.C.A.No.3656 of 2019 10 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. ## 20. 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. 21. In the instant case, as on the date of accident, the appellant was aged 42 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 **14** applied by the Tribunal is correct and proper. 22. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,05,840/- (21,000 x 12 X 14 x M.A.C.A.No.3656 of 2019 11 3/100), applying the multiplier 14 applicable to the age group of the appellant and 3% permanent disability assessed in Ext.X1. At the time of accident, the appellant, who was an Exservice man, who was working as Home Guard at Fire and Rescue Station, Peringome, drawing an emolument of Rs.21,000/- per month, as certified by the Station Officer, Fire and Rescue Station, Peringome. The compensation awarded by the Tribunal under the head permanent disability represents just and reasonable compensation, which requires no enhancement in this appeal. 23. Towards loss of amenities, the Tribunal awarded a sum of Rs.10,000/-. In Ext.X1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 3%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.X1 disability certificate, 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. The appellant claimed a sum of Rs.25,000/- towards M.A.C.A.No.3656 of 2019 12 future treatment. In the absence of any reliable materials, the Tribunal rightly rejected the claim made by the appellant in this regard. 25. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.42,500/-** (Rupees forty two thousand and five hundred only) [42,000 + 500] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 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 the amount to the appellant/claimant 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/rkj **ANIL K.NARENDRAN,** **JUDGE**