GOPINATH @ GOPI v. HDFC ERGO GENERAL INSURANCE COMPANY LTD

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 03RD DAY OF OCTOBER 2019 / 11TH ASWINA, 1941** ## **MACA.No.476 OF 2017** **AGAINST THE AWARD IN OPMV 648/2011 DATED 29-02-2016 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT:** **GOPINATH @ GOPI, S/O.KUMARAN, KOLPURATH HOUSE, KAITHARAM P.O., KOTTUVALLY VILLAGE, N.PARAVUR TALUK, ERNAKULAM DISTRICT** **BY ADVS. SRI.A.N.SANTHOSH SRI.G.BALAMURALEEDHARAN** ## **RESPONDENT:** **HDFC ERGO GENERAL INSURANCE COMPANY LTD. 6TH FLOOR, LEELA BUSINESS PARK, ANDERI EAST, MUMBAI-400059** **R1 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.476 OF 2017 ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.648 of 2011 on the file of the Motor Accident Claims Tribunal, North Paravur, 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 27.03.2011, while he was riding a motorcycle bearing registration No.KL-42/D-4576. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-17/E5909, 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, he sustained injuries. Alleging that the accident occurred due to rash and negligent driving of the car by the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.12,20,000/- under various heads, which was limited to Rs.8,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the 1[st] and 2[nd] respondents filed joint written statement denying the negligence alleged against the 1[st] respondent driver. It was pointed out that the vehicle 3 MACA No.476 OF 2017 was covered by a valid insurance policy issued by the 3[rd] respondent insurer. They contended that the accident occurred due to the negligence of the appellant/claimant and that, the compensation claimed is excessive. 3. The 3[rd] respondent insurer filed a written statement, admitting insurance coverage of the offending vehicle; however denying negligence alleged against the 1[st] respondent driver. The age, occupation, monthly income, nature of injuries, the period of treatment, etc., in the claim petition were denied and it was contended that the compensation claimed under various heads are on the higher side. 4. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. He was examined as PW1. The police records and the disability certificate were marked as Exts.X1 and X2. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to rash and negligent driving of the car by the 1[st] respondent driver. Since the insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held 4 MACA No.476 OF 2017 liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.5,41,500/-, together with interest at the rate of 8% per annum from the date of petition till the date of realisation, with proportionate cost. The 3[rd] respondent insurer was directed to satisfy the award within 30 days from the date of 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 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 5 MACA No.476 OF 2017 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. 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 6 MACA No.476 OF 2017 ## equitability. 11. In the instant case, the compensation awarded by ## the Tribunal under various heads reads thus; |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded<br>(in rupees)|| |---|---|---|---|---| |1|Total loss of earning|1,00,000|15,000|5000x3<br>months| |2|Expenses incurred<br>for medical<br>treatment till date|3,50,000|3,81,631|A4<br>series| |3|Expenses for<br>bystander and<br>transportation for<br>treatment purposes|50,000|6,000|A6<br>series| |4|Extra nourishment|15,000|3,000|| |5|Damage to cloths<br>and articles|5,000|500|| |6|Expenses for further<br>medical treatment|1,00,000|20,000|| |7|Compensation for<br>pain and sufferings|2,00,000|40,000|| |8|Compensation for<br>loss of enjoyment<br>and amenities of life|1,00,000|15,000|| |9|Compensation for<br>permanent disability,<br>compensation for the<br>loss of earning power<br>and loss of future<br>expectation of life.|3,00,000|60,000|5000x5x<br>12x20%| ||Total|Rs.<br>12,20,000/<br>- Limited<br>to Rs.<br>8,00,000/-|Rs.5,41,131<br>/- rounded<br>to<br>Rs.5,41,500|| 12. The accident occurred on 27.03.2011. At the time of 7 MACA No.476 OF 2017 accident, the appellant was aged 66 years. The appellant claimed a monthly income of Rs.6,000/- as a self-employed person. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has 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. 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 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 8 MACA No.476 OF 2017 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 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 9 MACA No.476 OF 2017 vegetable vendor is reasonably capable of earning 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 2011, 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 by the appellant cannot be said to be on a higher side, which can be taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 16. The documents marked as Exts.A1(a) to A(c) are discharge summaries issued from the Medical Trust Hospital, Ernakulam and Ext.A2 is the medical certificate issued from the Government Ayurveda Hospital, North Paravur. As per medical records, the appellant sustained lacerated wound scalp about 5cm x 1 cm; deformity on right hand; and pain and restricted mobility of right hip. He was under in-patient treatment for skeletal traction. He has also undergone ORIF on right posterior wall acetabulum with three cancellous screws 10 MACA No.476 OF 2017 and argumented with 10 hole recon neutralisation place with 4 cortical screws on either side. Wound inspection and suture removal were done. He was again admitted for treatment for closed comminuted posterior wall (R) acetabulam and the deficient posterior acetabular wall was reconstructed with contincocancellous bone graft harvested from same side femoral head and 2 cencellous screws. The appellant had undergone in-patient treatment for a total period of 62 days. Ext.A4 series of medical bills are for a sum of Rs.3,78,522.86/and Ext.A4 series of medical bills are for an additional sum of Rs.3,109/-. Ext.A6 series of bills are for a sum of Rs.5,050/towards transportation expenses. 17. In Ext.X2 disability certificate, the Medical Board at Medical College Hospital, Kottayam assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 20%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.15,000/-, at the rate of Rs.5,000/- per month for a 11 MACA No.476 OF 2017 period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 5 months. 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.15,000/-** (30,000 - 15,000). 19. Towards bystander expenses and transportation to hospital, the Tribunal awarded a sum of Rs.6,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.3,000/-. Ext.A6 series of bills regarding transportation expenses are for a sum of Rs.5,050/-. Therefore, Rs.6,000/awarded by the Tribunal is treated as compensation under the head transportation to hospital. The accident is of the year 2011 and the appellant had undergone inpatient treatment for 62 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander 12 MACA No.476 OF 2017 expenses is re-fixed as Rs.15,500/- (250 x 62), resulting an additional compensation of **Rs.9,500/-** (15,500 - 6,000). The compensation under the head extra nourishment is re-fixed as Rs.9,300/- (150 x 62), resulting an additional compensation of **Rs.6,300/-** (9,300 - 3,000). 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2011, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.3,81,631/-, covered by Ext.A4 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. 22. Towards future medical expenses, the Tribunal awarded a sum of Rs.20,000/-. In the absence of any reliable materials, considering the nature of injuries sustained, the compensation awarded by the Tribunal cannot be said to be on 13 MACA No.476 OF 2017 the lower side, which requires no enhancement in this appeal. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.40,000/-. 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. 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 14 MACA No.476 OF 2017 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. 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 66 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 **5** applied by the Tribunal is correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.60,000/- (5,000 x 12 x 5 x 15 MACA No.476 OF 2017 20/100). Since the monthly income of the appellant is re-fixed notionally as Rs.6,000/-, applying the multiplier of 5 applicable to the age group of the appellant and the percentage of permanent disability as 20%, the compensation under the head permanent disability is re-fixed as Rs.72,000/- (6,000 x 12 x 5 x 20/100), resulting an additional compensation of **Rs.12,000/-** (72,000 - 60,000). 28. Towards loss of amenities, the Tribunal awarded a sum of Rs.15,000/-. In Ext.X2 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 20%. Considering the nature of injuries sustained and the permanent disability that has been assessed in Ext.X2 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.5,000/-** (20,000 - 15,000). 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.48,300/-** (Rupees Forty Eight Thousand Three Hundred only) [15,000 + 9,500 + 6,300 + 500 + 12,000 + 5,000] in this appeal, which 16 MACA No.476 OF 2017 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. The disbursement of the amount to the appellant 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/- **ANIL K. NARENDRAN JUDGE** **yd**