Hari Krishnan v. Jayaraj P.R. and Chandrika w/o Ram Babu and Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** ## **MACA.No.2420 OF 2015(B)** **AGAINST THE AWARD IN OP(MV)NO.636/2006 DATED 14-03-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA** ## **APPELLANT/PETITIONER IN OP(MV):** **HARI KRISHNAN AGED 30 YEARS S/O.GOPALAKRISHNA NAIR, KRISHNANJALI, ARUKALICKAL EAST MURI, EZHAMKULAM VILLAGE, ADOOR.** **BY ADVS. SRI.ARUN.B.VARGHESE SMT.M.B.DHANYA BABU SRI.P.HARI SRI.JAYKAR.K.S.** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** **1 JAYARAJ P.R. S/O.RAGHAVAN, PUTHIYATHU MELETHIL HOUSE, MAROOR-691 524.** **2 CHANDRIKA W/O.RAM BABU, POORNIMA INDANE SERVICE, PARAKODE, ADOOR-691 554.** **3 THE BRANCH MANAGER THE ORIENTAL INSURANCE COMPANY LIMITED,KOTTARAKARA691 506.** **R1 BY ADV. SRI.RAJESH THOMAS R3 BY ADV. SMT.REKHA NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2420 of 2015(B) 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.636 of 2006 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta, 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 04.11.2005 while he was riding a motorcycle bearing registration No.KL-3/L-2593. At the place of accident, the motorcycle was hit by a tempo van bearing registration No.KL-3/G-3770 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of tempo van by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,87,000/- under various heads, which was limited to Rs.1,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the 1[st] respondent driver and the 2[nd] respondent owner of the tempo van remained absent and they were set ex-parte. 3. The 3[rd] respondent insurer filed written statement MACA No.2420 of 2015(B) 3 admitting the insurance coverage of the tempo van involved in the accident; however, denying negligence alleged against its driver. The insurer contended that there was violation of policy conditions as the 1[st] respondent driver was not holding a valid driving licence as on the date of accident. They disputed the injuries, monthly income, etc. stated in the claim petition. It was also contended that the compensation claimed is on the higher side. 4. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral 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 tempo van by its driver. Since insurance coverage of the said 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.1,07,263/-, together with interest at the rate of 9% per annum from the date of petition, i.e., from 01.06.2006 till realisation, with proportionate cost, and the insurer was directed to satisfy the award. MACA No.2420 of 2015(B) 4 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 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 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 MACA No.2420 of 2015(B) 5 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 nonviolation of the principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded|Basis vital details| |---|---|---|---|---| |1|Loss of earnings|25,000/-|12,000/-|| |2|Transport to hospital|1,000/-|1,500/-|| |3|Extra nourishment|5,000/-|1,500/-|| |4|Damage to clothing|1,000/-||| MACA No.2420 of 2015(B) 6 |5|Medical expenses|30,000/-|17,563/-|Ext.A11| |---|---|---|---|---| |6|Bystander's expenses|10,000/-|1,500/-|| |7|Pain and sufferings|90,000/-|15,000/-|| |8|Compensation for loss<br>of earning capacity||43,200/-|| |9|Loss of amenities|25,000/-|15,000/-|| ||Total|1,87,000/-<br>Limited to<br>1,00,000/-|1,07,263/-|| 12. The accident occurred on 04.11.2005. At the time of accident, the appellant was aged 22 years. The appellant claimed a monthly income of Rs.5,000/- as Accountant. Though the appellant produced Ext.A12 last pay certificate, the same was not proved. The appellant has also not chosen to mount the box. In the absence of any reliable materials, 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 MACA No.2420 of 2015(B) 7 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. 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 MACA No.2420 of 2015(B) 8 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. 15. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2005, 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.5,000/- 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 Ext.A6 is the wound certificate; Ext.A8 is the discharge summary; and Ext.A9 is the treatment summary. As per the medical records, in the accident, the appellant sustained compound fracture of right tibia, lacerated wound on scalp, lacerated wound over the MACA No.2420 of 2015(B) 9 right leg and abrasion on right shoulder and right knee. He had undergone inpatient treatment for 8 days. Ext.A11 is the series of medical bills for a sum of Rs.17,563/-. 17. The document marked as Ext.A7 is the disability certificate issued by the Medical Board at the General Hospital, Pathanamthitta, in which the permanent disability of the appellant, on account of the injuries sustained in the accident is assessed as 10%. Considering the nature of employment of the appellant, the Tribunal took 5% permanent disability, for the purpose of awarding compensation under various heads. Considering the nature of injuries sustained and the disabilities on account of those injuries, this Court deem it appropriate to take the percentage of permanent disability as 7%, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.4,000/- for a 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 MACA No.2420 of 2015(B) 10 monthly income of the appellant is re-fixed notionally as Rs.5,000/-, the compensation under the head loss of earning is re-fixed as Rs.25,000/- (5,000 x 5), resulting an additional compensation of **Rs.13,000/-** (25,000 – 12,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 8 days. The accident is of the year 2005. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs.1,500/-** (3,000 – 1,500). 20. Towards bystander expenses, the Tribunal awarded a sum of Rs.1,500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,500/-. The accident is of the year 2005 and the appellant had undergone inpatient treatment for 8 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 under these heads represents just and MACA No.2420 of 2015(B) 11 reasonable compensation, which requires no enhancement in this appeal. 21. Towards damage to clothing and articles, no amount has been awarded by the Tribunal. Considering the fact that the accident is of the year 2005, this Court deem it appropriate to grant a sum of **Rs.750/-** under this head. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.17,563/-, covered by Ext.A11 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. 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** MACA No.2420 of 2015(B) 12 **[(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. ## 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, MACA No.2420 of 2015(B) 13 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. Towards compensation for loss of earning capacity, the Tribunal awarded a sum of Rs.43,200/- (4,000 x 12 x 18 x 5/100). Since the monthly income of the appellant is refixed notionally as Rs.5,000/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 7%, the compensation under the head loss of earning capacity is re-fixed as Rs.75,600/- (5,000 x 12 x 18 x 7/100), resulting an additional compensation of **Rs.32,400/-** (75,600 – 43,200). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and 7% permanent disability on account of those injuries, the compensation awarded by the Tribunal under this MACA No.2420 of 2015(B) 14 head cannot be said to be on the lower side, which requires no enhancement in this appeal. 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.47,650/-** (Rupees Forty seven thousand six hundred and fifty only) [13,000 + 1,500 + 750 + 32,400] 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 364 days in filing this appeal, which was condoned by the order dated 05.03.2020 in C.M.Appln.No.2750 of 2015, 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 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. 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 MACA No.2420 of 2015(B) 15 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** AV/19/3