Ismail v. Ouseph K.K. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941** ## **MACA.No.2088 OF 2008(C)** **AGAINST THE AWARD IN OP(MV) NO.1868/2002 DATED 01-12-2007 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/CLAIMANT:** **ISMAIL, S/O.ASSAINAR, AGED 34 YEARS, C.6, THOPPAYIL, KALATHINKUNNU, P.O.NADAKKAVU, CALICUT-11.** **BY ADV. SMT.K.V.RASHMI** ## **RESPONDENTS/RESPONDENTS:** - **1 OUSEPH K.K., AGED 38 YEARS, S/O.KOCHUDEVASSY, KUTH KETTIL, VADAKANCHERY,, THRISSUR.** - **2 P.NALLAMUTHU, S/O.PARAMASIVAN 33/212, ABHILASH, G.V.ROAD, POONKUNNAM, THRISSUR.** - **3 THE NATIONAL INSURANCE CO. LTD. THRISSUR BRANCH OFFICE, AMBIKA ARCADE, M.G.ROAD, THRISSUR.** - **4 T.V.BIJU, S/O.BHASKARAN AGED 30 YEARS, THAZHATHUMVEETTIL HOUSE,, P.O.ANNASERI, THALAKALATHUR, CALICUT.** - **5 M.S.BABU, S/O.VALSAN, SREEVAS P.O.ELATHUR, CALICUT.** - **6 ORIENTAL INSURANCE CO. LTD. SREENIDHI BUILDING, P.B.NO.27, NARAYANA NAGARAM, VATAKARA.** - **R6 BY ADV. SRI.GEORGE CHERIAN (SR.) R6 BY ADV. SMT.K.S.SANTHI R3 BY ADV. SMT. DEEPA GEORGE, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2088 of 2008(C) 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1868 of 2002 on the file of the Principal 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 26.03.2002, while he was travelling in a bus bearing registration No.KL-10/C-5751, driven by the 4[th] respondent, owned by the 5[th] respondent and insured with the 6[th] respondent. At the place of accident, the bus was hit by another bus bearing registration No.KL-8/P-2777 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 bus by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/- under various heads. 2. Before the Tribunal, the 3[rd] respondent insurer filed written statement admitting insurance coverage of bus bearing registration No.KL-8/P-2777; however, denying negligence alleged against the 1[st] respondent driver. The insurer contended that the accident occurred due to the negligence on the part of 4[th] MACA No.2088 of 2008(C) 3 respondent driver of bus bearing registration No.KL-10/C-5751. 3. The 6[th] respondent insurer filed written statement admitting insurance coverage of bus bearing registration No.KL10/C-5751; however, denying the negligence alleged against the 4[th] respondent driver. The insurer contended that the accident occurred due to the negligence on the part of 1[st] respondent driver of bus bearing registration No.KL-8/P-2777. 4. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant and he was examined as PW1. On the side of the respondents, Ext.B1 charge sheet was marked. 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 bearing registration No.KL-8/P-2777 by the 1[st] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondet insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.3,03,700/-, together with interest at the rate of 7.5% per annum from 08.07.2002 till realisation, with a cost of Rs.1,000/-, and the 3[rd] respondent insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded MACA No.2088 of 2008(C) 4 by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/claimant, learned Standing Counsel for the 3[rd] respondent insurer and also the learned Standing Counsel for 6[th] 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 bonanza; not a source of profit; but the same should not be a pittance. ## 10. In **National Insurance Company Ltd. v. Pranay** MACA No.2088 of 2008(C) 5 **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 equitability. 11. In the instant case, the compensation awarded by the ## Tribunal under various heads reads thus; |Medical bills|37,000| |---|---| |Incidental charge (as amputation was done at<br>Mangalore)|10,000| |Pain and suffering|30,000| |disability|2,14,200| |Loss of amenity|10,000| |Transportation|2,500| |Total|3,03,700| 12. The accident occurred on 26.03.2002. At the time of accident, the appellant was aged 28 years. The appellant claimed a monthly income of Rs.6,000/- as fisherman. The appellant was examined as PW1. In the absence of any reliable materials, the MACA No.2088 of 2008(C) 6 Tribunal fixed the annual income notionally as Rs.17,000/-, 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 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** MACA No.2088 of 2008(C) 7 **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. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2002, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, and also the evidence of PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.3,750/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound MACA No.2088 of 2008(C) 8 certificate. His right arm of the appellant at the junction of upper 1/3[rd] , lower 2/3[rd] was amputated. He had undergone inpatient treatment for a total period of 28 days at Medical College, Kozhikode and at City Hospital Research and Diagnostic Centre, Mangalore. Ext.A6 series of medical bills are for a sum of Rs.37,000/-. 17. The document marked as Ext.A4 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 50%. The Tribunal took the loss of future earning capacity as 70%. 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 28 days. The accident is of the year 2002. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone at Kozhikode and Mangalore, the compensation under this head is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.7,500/-** (10,000 – 2,500). 19. Towards incidental charges (bystander expenses and extra nourishment) the Tribunal awarded a sum of Rs.10,000/-. MACA No.2088 of 2008(C) 9 The accident is of the year 2002 and the appellant had undergone inpatient treatment for 28 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 this head represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards damage to clothing and articles, the Tribunal awarded no compensation. Considering the fact that the accident is of the year 2002, this Court deem it appropriate to grant a sum of **Rs.750/-** under this head. 21. Towards medical expenses, the Tribunal awarded a sum of Rs.37,000/-, covered by Ext.A6 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 Tribunal awarded a sum of Rs.30,000/-. 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 MACA No.2088 of 2008(C) 10 under this head. 23. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss MACA No.2088 of 2008(C) 11 of earning, taking a monthly notional income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact that there has been inflation of money in the MACA No.2088 of 2008(C) 12 country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 24. In **Syed Sadiq v. Divisional Manager, United India** MACA No.2088 of 2008(C) 13 **Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** . A reading of the said decision would show that the injured before the Apex Court were having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity, and it was in such circumstances that the Apex Court granted them disability compensation by adding future prospects. 25. In the impugned award, though the Tribunal took the loss of future earning capacity as 70%, the Tribunal did not add anything to the notional monthly income of the appellant towards future prospects. Considering the nature of injuries sustained and the permanent disability arising therefrom, the appellant can be treated as an injured having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity. Therefore, the appellant is entitled for grant of compensation under the head permanent disability, adding future prospectus to his notional MACA No.2088 of 2008(C) 14 monthly income. 26. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench held that, while determining the income, an addition of **50%** of actual salary to the income of the deceased towards future prospects, where the deceased had a **permanent job** and was **below the age of 40 years** , should be made. The addition should be **30%** , if the age of the deceased was **between 40 to 50 years** . In case the deceased was between the age of **50 to 60 years** , the addition should be **15%** . Actual salary should be read as actual salary less tax. The Apex Court held further that, in case the deceased was **self-employed** or on a **fixed salary** , an addition of **40%** of the established income should be the warrant where the deceased was **below the age of 40 years** . An addition of **25%** where the deceased was **between the age of 40 to 50 years** and **10%** where the deceased was **between the age of 50 to 60 years** should be regarded as the necessary method of computation. The established income means the income minus the tax component. 27. In the instant case, at the time of accident, the appellant was aged 28 years. He claimed a monthly income of Rs.6,000/- as fisherman. The Tribunal fixed the annual income MACA No.2088 of 2008(C) 15 notionally as Rs.17,000/-. No reliable materials were placed before the Tribunal to show that, at the time of accident, the appellant had a permanent job. Therefore, the appellant can only be treated as self-employed. In view of the law laid down by the Apex Court in **Mekala** , **Syed Sadiq** and **Pranay Sethi,** an addition of **40%** of the notional monthly income of the appellant, as re-fixed in this appeal considering the economic conditions prevailing at the time of accident and taking note of the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and in **Syed Sadiq** referred to supra, can be made towards future prospects, since the appellant was **aged below 40 years** . 28. Therefore, for the purpose of re-fixing the compensation under the head permanent disability, **40%** of the monthly income of the appellant notionally re-fixed in this appeal as Rs.3,750/-, i.e., a sum of Rs.1,500/- (3,750 x 40/100) has to be added towards future prospects. In the result, the monthly income of the appellant, for the purpose of re-fixing the compensation under the head permanent disability, is reckoned as Rs.5,250/- (3,750 + 1,500). 29. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier MACA No.2088 of 2008(C) 16 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. 30. 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 MACA No.2088 of 2008(C) 17 said judgment. 31. In the instant case, as on the date of accident, the appellant was aged 28 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 not correct and the proper multiplier to be applied is **17** . 32. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.2,14,200/- (17,000 x 18 x 70/100). In this appeal, the monthly income of the appellant has already been re-fixed as Rs.3,500/-. Adding 40% of the notional monthly income of the appellant towards future prospects (3,750 + 1,500 = 5,250); applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 70%, the compensation under the head permanent disability is re-fixed as Rs.7,49,700/- (5,250 x 12 x 17 x 70/100), resulting an additional compensation of **Rs.5,35,500/-** (7,49,700 - 2,14,200). 33. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and 70% loss of future earning capacity on account of those injuries, as fixed by the Tribunal, the compensation awarded by the Tribunal under this head is re-fixed as Rs.70,000/-, resulting an MACA No.2088 of 2008(C) 18 additional compensation of **Rs.60,000/-** (70,000 – 10,000). In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.6,03,750/-** (Rupees Six lakhs three thousand seven hundred and fifty only) [7,500 + 750 + 5,35,500 + 60,000] in this appeal, which will carry interest only at the rate of **7%** per annum from the date of petition till realisation (considering the delay for the period from 19.09.2008 till 22.07.2017 in paying process to serve notice on the respondents). 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 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 MACA No.2088 of 2008(C) 19 Tribunal, with copy to the learned Standing Counsel for the 3[rd] respondent 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** jv