Gopi v. Abdul Kabeer, Jayaprakash and The National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **MACA.No.3091 OF 2019** **AGAINST THE AWARD IN OPMV 1136/2012 DATED 23-01-2019 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT:** **GOPI, AGED 50 YEARS, S/O. KUMARAN, RESIDING AT THEKKETHARA PADINJARE HOUSE, P.O. PADOOR, ALATHUR, THRISSUR DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS:** **1 ABDUL KABEER, S/O. AVARANKUTTY, RESIDING AT MANDAPPURAM HOUSE, PARAPUR ROAD, KOTTAKAL, TIRUR, MALAPPURAM-676101. 2 JAYAPRAKASH, S/O. ACHUTHAN NAIR, RESIDING AT NANDANAM, VALIYAPARAMBU, KOTTAKKAL, MALAPPURAM -676503. 3 THE NATIONAL INSURANCE COMPANY LIMITED, BMC HOUSE, CONNAUGHT PLACE, NEW DELHI-110001. SRI. LAL GEORGE, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.3091 OF 2019 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1136 of 2012 on the file of the Motor Accidents Claims Tribunal, Thrissur, 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 09.09.2011, while he was travelling in a motorcycle bearing registration No.KL-49/A-5815. At the place of accident, the motorcycle was hit by an autorickshaw bearing registration No.KL-55/B-2119, owned by the 1[st] respondent, driven 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 autorickshaw by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,01,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 2[nd] respondent filed written statement admitting the insurance coverage of the autorickshaw involved in the accident; however, denying the 3 MACA No.3091 OF 2019 negligence alleged against the 2[nd] respondent driver. It was contended that the appellant/claimant had no valid driving licence at the time of accident. There were two pillion riders. 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, Exts.A1 to A11 were marked on the side of the appellant/claimant and Exts.B1 and B2 were marked on the side of the respondents. 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 autorickshaw by the 2[nd] respondent driver. Since the 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.1,65,125/- and the insurer was directed to satisfy the award, with interest at the rate of 8% per annum from the date of petition, i.e., 29.05.2012, till date of deposit, together with proportionate cost. The 3[rd] respondent insurer was 4 MACA No.3091 OF 2019 directed to satisfy the award within one month from the date of award. 5. Dissatisfied with the quantum of compensation 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 3[rd] respondent/insurer. Since the insurance coverage of the offending vehicle is not in dispute, service of notice on respondents 1 and 2 is dispensed with. 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 different 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 5 MACA No.3091 OF 2019 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. 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 6 MACA No.3091 OF 2019 ## the Tribunal under different heads reads thus; ||The compensation claimed<br>under different heads|Amount<br>claimed|Amount<br>allowed| |---|---|---|---| |1|Loss of earning (Total)|63,000/-|30,000/-| |2|Transportation expenses|3,000/-|2,000/-| |3|Extra nourishment|10,000/-|4,000/-| |4|Damage to clothingetc.|1,000/-|1,000/-| |5|Medical expenses|15,000/-|3,125/-| |6|Bystander expenses|4,000/-|3,000/-| |7|Future treatment|10,000/-|----| |8|Pain and suffering|25,000/-|30,000/-| |9|Compensation for the loss<br>of earning power|75,000/-|72,000/-| |10|Compensation for the loss<br>of earning power|75,000/-|----| |11|Loss of amenities and<br>enjoyment of life|20,000/-|20,000/-| ||Total|**3,01,000/-**|**1,65,125/-**| 11. The accident occurred on 09.09.2011. At the time of accident, the appellant was aged 43 years. He claimed a monthly income of Rs.9,000/- as a rubber tapper. No materials were produced before the Tribunal to prove the monthly income of the claimant. He has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.5,000/-, for the purpose of assessing compensation under various heads. 7 MACA No.3091 OF 2019 ## 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 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** 8 MACA No.3091 OF 2019 **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 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. Considering the economic conditions prevailed at the time of accident, i.e., during the year 2011, 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 at Rs.8,000/-, for the purpose of assessing 9 MACA No.3091 OF 2019 ## compensation under various heads. 15. Exts.A4 discharge certificate and Ext.A9 discharge summary would show that the appellant sustained fracture shaft of femur and lacerated wound of right ankele. He was admitted in the hospital on 09.09.2011 and after surgery, he was discharged on 24.09.2011. The appellant had undergone treatment for a period of 15 days. Ext.A10 is the series of medical bills for an amount of Rs.3,121.95/-, which was rounded as Rs.3,125/-. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.30,000/-, at the rate of Rs.5,000/- per month for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of six months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is refixed notionally as Rs.8,000/-, the compensation under the head loss of earning is re-fixed as Rs.48,000/- (8,000x6), resulting an additional compensation of **Rs.18,000/-** (48,00030,000). 10 MACA No.3091 OF 2019 17. 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, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 18. Towards extra nourishment, the Tribunal awarded a sum of Rs.4,000/-, which cannot be said to be on the lower side, considering the nature of injuries sustained and the inpatient treatment for a period of 15 days. Towards bystander expenses, the Tribunal awarded a sum of Rs.3,000/-, which represents just and reasonable compensation under that head. 19. Towards damage to clothing, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2011, the compensation under the head damage to clothing is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500-1,000). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.3,125/-. In the absence of any reliable materials placed on record, the compensation awarded by the Tribunal 11 MACA No.3091 OF 2019 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.3,000/-. 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.3,750/- (250x15), resulting an additional compensation of **Rs.750/-** . 22. Towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under the head pain and suffering cannot be said to be on a lower side, which requires no enhancement in this appeal. 23. In Ext.A11 disability certificate issued by Dr.Jyothish K., Associate Professor in Orthopaedicas, Medical College Thrissur, the permanent disability of the appellant was assessed as 9%. Ext.A11 disability certificate was marked subject to proof, in view of the objection raised by the insurer. The appellant has not taken steps to prove Ext.A11 by 12 MACA No.3091 OF 2019 examining the doctor. Considering the nature of injuries, age of the petitioner at the time of accident and the physical condition noted in the disability certificate, the Tribunal fixed the percentage of whole body disability as 8%. The assessment so made by the Tribunal warrants no interference. 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 13 MACA No.3091 OF 2019 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 43 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 15 applied by the Tribunal is incorrect and the proper multiplier to be applied is **14** . 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.72,000/- (5,000x12x15x8/100). Since the monthly income of the appellant is re-fixed notionally as Rs.8,000/-, the compensation under this head is re-fixed as 14 MACA No.3091 OF 2019 Rs.1,07,520/- (8,000x12x14x8/100), resulting an additional compensation of **Rs.35,520/-** . 28. In the result, the appellant will be entitled for an additional compensation of **Rs.54,770/-** (Rupees Fifty Four Thousand Seven Hundred and Seventy only) [18,000 + 500 + 750 + 35,520] 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 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. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** **yd**