Indira v. P. Prakashan & Others; The Manager National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941** ## **MACA.No.854 OF 2010** **AGAINST THE AWARD IN OPMV 701/2006 DATED 08-10-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** **MRS.INDIRA, THENASSERY HOUSE, POKLAYI DESOM,, KOOLIMUTTAM VILLAGE P.O., KODUNGALLUR TALUK.** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENT/S:** - **1 P.PRAKASAN & OTHERS PAZHAVEEDU, ALAPPUZHA DISTRICT.** - **2 GIREESHKUMAR SO.GOPINATHAN KOONIYARA HOUSE, POKLAYI DESOM,, KOOLIMUTTAM VILLAGE,P.O., KODUNGALLUR TALUK.** - **3 THE MANAGER NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, 1ST FLOOR, AJAYA VIHAR,, M.G.ROAD, KOCHI, ERNAKULAM.** **R1 BY ADV. SRI.JOE KALLIATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 854 of 2010 ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.701 of 2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 12.05.2006, while she was travelling in a car bearing registration No.KL-2/7952, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the 2[nd] respondent lost control over the vehicle, which hit on a tree on the road side. In the accident, the appellant/claimant and her husband, who is the claimant in the connected claim petition, i.e., OP(MV) No.702 of 2006, sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 filed -3- MACA. No. 854 of 2010 written statement admitting the accident; however, denying negligence alleged against the 2[nd] respondent driver. It was pointed out that the vehicle was having valid insurance coverage with the 3[rd] respondent insurer. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the offending vehicle; however, raising a contention that the insurance policy is an 'Act Only Policy' and that, the 2[nd] respondent driver was not holding a valid driving licence and badge, at the time of accident. 4. The claim petition was tried along with O.P.(MV) No.702 of 2006. Before the Tribunal, Exts.A1 to A15 were marked on the side of the claimants. On the side of the respondents, a copy of the insurance policy of the offending vehicle was marked as Ext.B1. 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 car by -4- MACA. No. 854 of 2010 the 2[nd] respondent driver. The Tribunal found that the offending vehicle is not a private vehicle and therefore, the passengers in such a vehicle are covered in 'Act Only Policy'. As per Ext.A2 charge sheet, the 2[nd] respondent driver was holding a valid driving licence at the time of accident. Therefore, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.70,400/-, together with interest at the rate of 7% per annum from the date of petition till realisation, 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 3[rd] respondent/insurer. 8. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for -5- MACA. No. 854 of 2010 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 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, -6- MACA. No. 854 of 2010 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. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |**Head**|**Amount**<br>**allowed**|| |---|---|---| |Medical Expenses|38200|A8 series of<br>Bills| |Hospital expenses|1200|12 days IP| |Transportation<br>expenses|1000|| |Loss of earning|6000|1,500 x 4| |Pain and suffering|17000|| |Loss of amenities|7000|| |**Total**|**70,400/-**|| 12. The accident occurred on 12.05.2006. At the time of accident, the appellant was aged 59 years. She claimed a monthly income of Rs.3,000/- as a tailor. The appellant has -7- MACA. No. 854 of 2010 also not chosen to mount the box to prove her monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.1,500/-, 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 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 -8- MACA. No. 854 of 2010 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 vegetable vendor is reasonably capable of earning 6,500/- per -9- MACA. No. 854 of 2010 month. 15. In the absence of any reliable evidence, 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.3,000/claimed by the appellant cannot be said to be on the higher side, which is taken as her notional monthly income, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A3 is the wound certificate issued from Modern Hospital, Kozhikode, which shows that the appellant was brought there with deformity of right forearm and tenderness of right hip with the movements of hip restricted; lacerated wound over the scalp and another lacerated wound at the back of right elbow. Ext.A4 is the discharge card, which would show that the appellant had undergone inpatient treatment for 4 days with diagnosis as closed fracture of both bones of right forearm and middle 3[rd] and comminuted fracture of the posterior wall of right -10- MACA. No. 854 of 2010 accebulum. Exts.A5 and A6 discharge summaries would show the subsequent inpatient treatment undergone by the appellant is for 6 days and 2 days, respectively. 17. Ext.A7 is the disability certificate issued by an individual doctor in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 12%. The disabilities noted in Ext.A7 are stiffness of right wrist and right hip. The appellant has not chosen to prove Ext.A7 disability certificate by examining the doctor concerned. The Tribunal found that the disability in Ext.A7 was assessed with implant in situ. The claimant was personally present before the Tribunal. She could bend down without any difficulty. Therefore, the Tribunal held that the appellant is not entitled for any disability compensation; however, she can be compensated by granting compensation under the head loss of amenities. Having considered the nature of injuries sustained and the disabilities noted in Ext.A7, this Court finds that, the appellant, who is a tailor by profession, has to be granted disability compensation, taking -11- MACA. No. 854 of 2010 the percentage of permanent disability as 5%. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.1,500/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.3,000/-, the compensation under the head loss of earning is re-fixed as Rs.12,000/- (3,000 x 4), resulting an additional compensation of **Rs.6,000/-** (12,000 – 6,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 12 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. 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 represents just and reasonable compensation, which requires -12- MACA. No. 854 of 2010 no enhancement in this appeal. 20. Towards hospital expenses, the Tribunal awarded a sum of Rs.1,200/-. The accident is of the year 2006 and the appellant had undergone inpatient treatment for 12 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it proper to grant Rs.1,800/- (150 x 12) towards bystander expenses; and Rs.1,200/- (100 x 12) towards extra nourishment. In the result, compensation under the head hospital expenses is re-fixed as Rs.3,000/- (1,800 + 1,200), resulting an additional compensation of **Rs.1,800/-** (3,000 – 1,200). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.38,200/-, covered by Ext.A8 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. As compensation towards pain and suffering, the -13- MACA. No. 854 of 2010 Tribunal awarded a sum of Rs.17,000/-. 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. 23. 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 -14- MACA. No. 854 of 2010 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. ## 24. 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. 25. In the instant case, as on the date of accident, the appellant was aged 59 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 9 can be applied for calculation of disability compensation. 26. Towards compensation for permanent disability, no -15- MACA. No. 854 of 2010 amount has been awarded by the Tribunal. Since the monthly income of the appellant is re-fixed notionally as Rs.3,000/-, applying the multiplier of 9 applicable to the age group of the appellant and the percentage of permanent disability as 5%, the compensation under the head permanent disability is fixed as **Rs.16,200/-** (3,000 x 12 x 9 x 5/100) 27. Towards loss of amenities the Tribunal awarded a sum of Rs.7,000/-. Considering the nature of injuries sustained and the permanent disability on account of those injuries, fixed as 5% in this appeal, the compensation awarded by the Tribunal under this head is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.3,000/-** (10,000 – 7,000). 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.27,000/-** (Rupees twenty seven thousand only) [6,000 + 1,800 + 16,200 + 3,000] 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 -16- MACA. No. 854 of 2010 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** das