Ismail @ Ismailkutty S/o Assainar v. A. Siyass, K.V. Sameer, and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941** ## **MACA.No.1701 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.1765/2004 DATED 24-08-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER :** **ISMAIL @ ISMAILKUTTY S/O.ASSAINAR, AGED 40 YEARS,, VAYARODI HOUSE, KOZHIPPURAM,, PALLIKKAL POST, CHELAMBRA-VIA.,, MALAPPURAM (NOW RESIDING AT KUNNATHPARAMBA,, FEROKE POST, KOZHIKODE).** **BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENTS/RESPONDENTS :** **1 A.SIYAS, S/O.ABDU RAHIMAN, HAVIS MANZIL, PANNIYOOR,, THALIPARAMBA, KANNUR – 670 679. 2 K.V.SAMEER S/O.IBRAHIM, VATTAPARAMBIL, VENGADU, THALASSERY, KANNUR – 670 612. 3 THE NEW INDIA ASSURANCE CO. LTD. BRANCH OFFICE, SADHOO BUILDING,, NEW MUNICIPAL BUS STAND, KANNUR – 670 003.** ## **R3 BY ADV. SMT.P.K.SANTHAMMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1701 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1765 of 2004 on the file of the Motor Accidents Claims Tribunal, Kozhikode, 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 20.06.2004, while he was standing on the side of a public road. At the place of accident, he was knocked down by a Jeep bearing registration No.KL-13/B-2046, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of jeep by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 filed written statement admitting the accident; however denying negligence alleged against the 2[nd] respondent driver. They contended that the accident occurred due to the negligence **MACA.No.1701 OF 2010** **3** on the part of the appellant/claimant himself and that, the jeep was having valid insurance with the 3[rd] respondent insurer. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the jeep involved in the accident; however, denying the negligence alleged against the 2[nd] respondent driver. The insurer disputed the injuries and the amount of compensation claimed by the appellant/claimant. 4. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. The document marked as Ext.C1 is the disability certificate assessing the permanent disability of the appellant/ claimant, on account of the injuries sustained in the motor accident. 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 jeep by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent **MACA.No.1701 OF 2010** **4** insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,12,050/- together with interest at the rate of 7% per annum from the date of petition till date of deposit and the 3[rd] respondent insurer was directed to satisfy the award, with a cost of Rs.500/-. 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. Since insurance coverage of the offending vehicle is admitted by the 3[rd] respondent insurer, service of notice on respondents 1 and 2 is dispensed with. 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 **MACA.No.1701 OF 2010** **5** 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, 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 **MACA.No.1701 OF 2010** **6** 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 allowed<br>(in rupees)| |---|---| |Loss of earning|5,000/-| |Bystander's expenses|2,000/-| |Transport to hospital|500/-| |Damage to clothing|250/-| |Medical expenses|10,000/-| |Loss of disability|76,800/-| |Pain and sufferings|17,500/-| |**TOTAL**|**1,12,050/-**| 12. The accident occurred on 20.06.2004. At the time of accident, the appellant was aged 35 years. The appellant claimed a monthly income of Rs.5,000/- as Driver. 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.2,000/-, for the purpose of assessing compensation **MACA.No.1701 OF 2010** **7** under various heads. 13. The learned counsel for the appellant would submit that though the driving licence of the appellant was produced before the Tribunal, the same was omitted to be marked. The driving licence of the appellant was produced as document No.5 along with a list of documents dated 16.06.2009 filed before the Tribunal by the claimant. 14. 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 **MACA.No.1701 OF 2010** **8** 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. 15. 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 **MACA.No.1701 OF 2010** **9** Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 16. Mere production of driving licence is not at all sufficient to arrive at a conclusion that, at the time of accident, the appellant was earning monthly income as a driver by profession. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2004, 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 as Rs.4,500/-, for the purpose of assessing compensation under various heads. 17. The document marked as Ext.A4 is the wound certificate. As per the medical records, in the accident, the appellant sustained fracture shaft of femur (L) M/3[rd] and L/3[rd] , SNH-tentorial sufrace, inter hemi fissur, Haemorrhagic contusion(Lt) frontal region, abrasion over face, 1.5 x 5 cm (Lt) knee and lacerated wound right chin. He had undergone inpatient treatment for a period of 19 days from 20.06.2004 **MACA.No.1701 OF 2010** **10** to 09.07.2004. Ext.A6 series of medical bills are for a sum of Rs.13,905/-. The appellant has also produced trip sheet for Rs.10,260/-. 18. In Ext.C1 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed at 20%. The Tribunal accepted the said percentage of permanent disability, for the purpose of awarding compensation under various heads. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.5,000/-, at the rate of Rs.2,000/- for a period of 2½ months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2½ months fixed by the Tribunal for granting loss of earning is re-fixed as 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,500/-, the compensation under the head loss of earning is re-fixed as Rs.18,000/- (4,500 x 4), resulting an additional compensation of **Rs.13,000/-** . (18,000 – 5,000). 20. Towards bystander expenses, the Tribunal **MACA.No.1701 OF 2010** **11** awarded a sum of Rs.2,000/-. The Tribunal awarded no amount towards extra nourishment. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 19 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 expenses is re-fixed as Rs.2,850/- (19 x 150), resulting an additional compensation of **Rs.850/-** (2,850 – 2,000). A further sum of **Rs.1,900/-** (19 x 100) is granted under the head extra nourishment. 21. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2004, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 – 250). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.10,000/-. The medical bills produced by the appellant, which were marked as Ext.A6 are available in the lower court records. Those bills were produced before the Tribunal along with the list of documents dated 19.02.2008 **MACA.No.1701 OF 2010** **12** and the said list does not even contain the description of the documents such as bill number, date and the amount covered by each bill, etc. Around 93 bills were produced along with the list of documents. As per that list, the total bill amount comes to Rs.13,905.45/-. Out of 93 bills for a total sum of Rs.13,905.45/-, the counsel for the insurer filed objection with respect to certain bills for a total sum of Rs.1,148.83/-. After deducting the amount covered by those bills, the compensation under the head medical bills is refixed as Rs.12,756/-, resulting an additional compensation of **Rs.2,756/-** (12,756 – 10,000). 23. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Along with the list of documents dated 19.02.2008, the appellant produced 16 trip sheets for a sum of Rs.10,260/-. In some of the said trip sheets, the name of the passenger is not mentioned. The appellant has not chosen to prove those documents by examining the driver concerned. However, considering the nature of injuries sustained by the appellant and the treatment he had undergone, as borne out from the medical records, the **MACA.No.1701 OF 2010** **13** compensation under the head transportation expenses is refixed as Rs.3,000/-, resulting an additional compensation of **Rs.2,500/-** (3,000 – 500). 24. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.17,500/-. 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. 25. 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 **MACA.No.1701 OF 2010** **14** [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. 26. 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. 27. In the instant case, as on the date of accident, the appellant was aged 35 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 **16** **MACA.No.1701 OF 2010** **15** applied by the Tribunal is correct and proper. 28. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.76,800/- (2,000 x 12 x 16 x 20/100). Since the monthly income of the appellant is refixed notionally as Rs.4,500/-, applying the multiplier of 16 applicable to the age group of the appellant and the percentage of permanent disability as 20%, the compensation under the head permanent disability is refixed as Rs.1,72,800/- (4,500 x 12 x 16 x 20/100), resulting an additional compensation of **Rs.96,000/-** (1,72,800 – 76,800). 29. Towards loss of amenities, no amount has been awarded by the Tribunal. In Ext.C1 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.C1 disability certificate, this Court deem it appropriate to grant a sum of **Rs.20,000/-** under this head. 30. In the result, the appellant will be entitled for **MACA.No.1701 OF 2010** **16** payment of an additional compensation of **Rs.1,37,506/-** (Rupees One lakh thirty seven thousand five hundred and six only) [13,000 + 850 + 1,900 + 500 + 2,756 + 2,500 + 96,000 + 20,000 ] 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 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 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/7/12