Henry Devadasan v. The New India Assurance Co. Ltd. and Mathew K. Varghese

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **MACA.No.2492 OF 2012** **AGAINST THE AWARD IN OP(MV)No.1147/2006 DATED 15-06-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT:** **HENRY DEVADASAN, S/O.PAUL RAJ, KARADIKUZHI ESTATE, PIRUMEDU, KARADIKUZHI, IDUKKY, NOW RESIDING AT EVANGELIC CHURCH QUARTERS, KOTHAMANGALAM.** **BY ADVS. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU** ## **RESPONDENTS:** * **1 MOHANAN A.T. AICKARA HOUSE, MANJAPARA P.O., ANGAMALY, PIN-683572.[DELETED]** * **2 ABBAS.V.A. S/O.AHAMMED, VARIKKADAN HOUSE, MARAMPILLY VILLAGE, PALLIPARAM KARA, PERUMBAVOOR, PIN-683542.[DELETED]** ## *** R1 & R2 DELETED** *** RESPONDENTS 1 & 2 ARE DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 13.11.2017 IN I.A.NO.4094/2017 IN MACA NO.2492/2012.** **3 THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO.LTD., PERUMBAVOOR, PIN-683542. 4 MATHEW.K.VARGHESE S/O.VARGHESE, KUNNATHU HOUSE, RAYAMANGALAM P.O., PIN-683545. BY ADV. SMT.M.MEENA JOHN BY ADV. SRI.VIJU THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2492 of 2012 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1147 of 2006 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, 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 21.01.2006, while he was travelling as pillion rider on a scooter bearing registration No.KL-7/H-7097. At the place of accident, the scooter was hit by a bus bearing registration No.KL-07/AR-7506 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. 4[th] respondent is the owner of the scooter. In the accident, appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.7,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver remained absent and they were set ex parte. MACA No.2492 of 2012 3 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the bus involved in the accident; however, denying the negligence alleged against its driver. The insurer contended that the accident occurred due to the rash and negligent driving of scooter by its rider. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was filed along with connected matter. Exts.A1 to A18 were marked on the side of the claimants. Doctor who issued Ext.A15 Disability Certificate was examined as PW1. 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 bus by the 2[nd] respondent driver, who was charge sheeted by the police in Ext.A5 charge sheet. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.4,06,887/-. Since MACA No.2492 of 2012 4 the rider of the scooter was not holding a valid driving licence, against whom the police registered M.V. Petty No.76 of 2006, the Tribunal deducted a sum equal to 7.5% of the total compensation and the net compensation payable was worked out as Rs.3,76,370/-, which was rounded off to Rs.3,76,500/-, together with interest at the rate of 8% per annum from the date of petition till date of deposit, with proportionate cost, and the insurer was directed to satisfy the 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 3rd 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 MACA No.2492 of 2012 5 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. 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, MACA No.2492 of 2012 6 reasonableness and non-violation of the principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.N<br>o.|The compensation claimed<br>under various heads|Amount claimed<br>(in Rs.)|Amount allowed<br>(in Rs.)| |---|---|---|---| |1|Loss of earning|36,000/-|24,000/-| |2|General expenses:<br>Transportation expenses,<br>extra nourishment, damage to<br>clothing, attendant expenses.|<br>35,500/-|12,000/-| |3|Medical bills|2,00,000/-|1,16,687| |4|Pain and suffering|50,000/-|25,000/-| |5|Loss of amenities|1,00,000/-|15,000/-| |6|Compensation for disability|2,50,000/-|2,14,200/-<br>(3000x12x17x<br>35/100)| ||Total|6,71,500/-|4,06,887/-| 12. The accident occurred on 21.01.2006. At the time of accident, the appellant was aged 32 years. The appellant claimed a monthly income of Rs.4,000/- as Evangelist. No materials were produced before the Tribunal to prove the monthly income of the appellant. 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.3,000/-, for the purpose of assessing compensation under MACA No.2492 of 2012 7 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 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. MACA No.2492 of 2012 8 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 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 2006, 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.4,000/- claimed in the claim petition is not on the higher MACA No.2492 of 2012 9 side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 16. As per medical records, in the accident, the appellant sustained swelling and deformity right hand dorsum, right thigh lower part and knee. The document marked as Ext.A11 is the wound certificate; Ext.A12 is discharge certificate; As evident from Ext.A12 discharge certificate, in the accident, appellant sustained, brain stem contusion, left thalamic contusion, diffuse subarachnoid hemorrhage, compound fracture shaft of femur distal 1/3[rd] right, fracture patella right, right carpometacarpal fracture dislocation with avulsion, fracture radial styloid right, fracture dislocation right wrist and mandible right. Exts.A13 and A14 are discharge summaries. The appellant had undergone impatient treatment for a total period of 47 days. 17. Document marked as Ext.A15 is the disability certificate issued by PW1, a consultant Orthopaedic surgeon, in which the permanent whole body disability of the appellant, on account of the injuries sustained in the accident, is assessed as 43%, as per Mc Bride scale. The nature of disability is noted in MACA No.2492 of 2012 10 Ext.A15 are, one inch shortening of right lower limb and limping. Movement of right knee possible from 160° extension to 80-90° flexion. Right wrist was clinically dislocated. Flexion of fingers possible only 50%. Extension also possible 15-20°. Grip is not effective and not able to do any work with that hand. Supination and pronation are possible only 50%. The appellant was not able to squat properly. X-ray of right femur and knee showed fracture of femur malunited with more than 20° angulation. Fracture patella was also not united. X-ray of right wrist showed dislocated wrist joint with osteoporosis of carpal bones and surrounding bones. PW1, the doctor who issued Ext.P15 disability certificate deposed that the appellant is having orthopaedic disability and he was not able to grip. During cross examination, PW1 clarified that out of 43% disability assessed in Ext.A15, 25% is with respect to dislocation of wrist and its complications. PW1 has also admitted that for assessing disability, he had not followed the Government of India guidelines. Considering the nature of disabilities noted in Ext.A15 and the employment of the appellant as Evangelist, in the light of the law laid down by the MACA No.2492 of 2012 11 Apex Court in **Raj Kumar V. Ajay Kumar [(2011) 1 SCC 343],** the Tribunal took the the loss of earning capacity of the appellant as 35%, for the purpose of assessing compensation under various heads. The assessment so made by the Tribunal cannot be said to be arbitrary or illegal, which requires no interference in this appeal. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.24,000/-, at the rate of Rs.3,000/- for a period of 8 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, the period of 8 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.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.32,000/- (4,000 x 8), resulting an additional compensation of **Rs.8,000/-** (32,000 – 24,000). 19. Towards transportation expenses, extra nourishment, damage to clothing and attendant expenses, the Tribunal awarded a consolidated amount of Rs.12,000/-. The accident is of the year 2006. The appellant had undergone inpatient MACA No.2492 of 2012 12 treatment for 47 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the appellant is granted Rs.3,000/- towards transportation expenses; Rs.9,400/- (200 x 47) towards attendant expenses; Rs.7,050/- (150 x 47) towards extra nourishment; and Rs.1,000/- towards damage to clothing, resulting an additional compensation of **Rs.8,450/-** [(3,000 + 9,400 + 7,050 + 1,000) - 12,000]. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.1,16,687/-, covered by Ext.A16 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. 21. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. 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.30,000/-, resulting an additional compensation of MACA No.2492 of 2012 13 ## **Rs.5,000/-** (30,000 – 25,000). 22. 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. MACA No.2492 of 2012 14 23. 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. 24. In the instant case, as on the date of accident, the appellant was aged 32 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 17 applied by the Tribunal is not correct and the proper multiplier to be applied is **16** . 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.2,14,200/- (3,000 x 12 x 17 x 35/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, applying the multiplier of 16 applicable to the age group of the appellant and the percentage of permanent disability as 35%, the compensation under the head permanent disability is re-fixed as Rs.2,68,800/- (4,000 x 12 x 16 x 35/100), resulting an additional compensation of **Rs.54,600/-** ( 2,68,800 - 2,14,200). MACA No.2492 of 2012 15 26. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and 35% permanent disability on account of those injuries, as fixed by the Tribunal, the compensation awarded by the Tribunal under this head is re-fixed as Rs.35,000/-, resulting an additional compensation of **Rs. 20,000/-** (35,000 - 15,000). 27. Though, in the impugned award, the Tribunal held that the accident occurred due to the rash and negligent driving of the bus by the 2[nd] respondent driver, who was charge sheeted by the police in Ext.A5 charge sheet, the Tribunal deducted a sum equal to 7.5% of the total compensation and the net compensation payable was worked out as Rs.3,76,370/-, which was rounded off to Rs.3,76,500/-, since the rider of the scooter was not holding a valid driving licence, against whom the police registered M.V. Petty No.76 of 2006. 28. In **Sudhir Kumar Rana v. Surinder Singh [(2008) 12 SCC 436]** the Apex Court held that 'contributory negligence' may be defined as negligence in not avoiding the consequences arising from the negligence of some other MACA No.2492 of 2012 16 person, when means and opportunity are afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent. If a person drives a vehicle without a licence, he commits an offence. The same, by itself may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck which was being driven rashly and negligently. It is one thing to say that the appellant [rider of the two wheeler] was not possessing any licence but no finding of fact has been arrived at that he was riding the two wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, only because he was not having a licence, he would not be held to be guilty of contributory negligence. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place. 29. In the absence of any finding in the impugned award that the rash and negligent riding of scooter had resulted in the accident, the Tribunal went wrong in deducting 7.5% of the total compensation of Rs.4,06,887/-, only because the rider of the scooter was not holding a valid driving licence. Therefore, MACA No.2492 of 2012 17 the appellant will be entitled for payment of a sum of **Rs.30,387/-** (4,06,887 - 3,76,500) towards the balance compensation awarded by the Tribunal. 30. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.1,26,437/-** (Rupees one lakh twenty six thousand four hundred and thirty seven only) [(8,000 + 8,450 + 5,000 + 54,600 + 20,000 + 30,387) 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 242 days in filing this appeal, which was condoned by the order dated 19.02.2020, subject to the condition that in case enhanced compensation is granted in this appeal, the appellant shall not be entitled for interest on 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/ MACA No.2492 of 2012 18 claimant shall be made taking note of the law on the point and in terms of the directives issued by this 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. (court fee after 16.1.2015) 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. MIN Sd/- **ANIL K. NARENDRAN JUDGE**