Jabbar v. M/S Confident Cargo Carriers Pvt. Ltd. & Ors

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** # **MACA.No.1315 OF 2010** **AGAINST THE AWARD IN OPMV 1125/2004 DATED 30-07-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR.** ## **APPELLANT:** **JABBAR, S/O.KUNJUMOHAMMED, MADATHIPARAMBU HOUSE, VAYALUKARA, KUNNUKARA P.O., KUNNUKARA VILLAGE, PARAVUR TALUK, EKM DIST.** **BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR)** ## **RESPONDENTS:** |**1**|**M/S.CONFIDENT CARGO CARRIERS PVT. LTD.**| |---|---| ||**274, LINGHI CHETTY STREET,**| ||**CHENNAI-600 001, TAMIL NADU.**| |**2**|**SAKKEER,**| ||**S/O.ABDULKHADER,**| ||**MANELIL HOUSE, KUNNUKARA P.O.,**| ||**PIN-683 524, EKM DIST.**| |**3**|**NATIONAL INSURANCE CO.LTD.**| ||**BRANCH OFFICE, N.PARAVUR P.O.,**| ||**PIN-683 513, EKM DIST.**| **R3 BY ADV. SRI.JOE KALLIATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1315 OF 2010** -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.1125 of 2004 on the file of the Motor Accidents Claims Tribunal, North Paravur, 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 27.08.2004, while he was riding a motorcycle bearing registration No.KCF-5233. At the place of accident, the motorcycle was hit by a car bearing registration No.PY01/E-414, 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 the car by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed written statement admitting the accident; however, denying the negligence alleged against the 2[nd] **MACA.No.1315 OF 2010** -3- respondent driver. It was pointed out that the vehicle involved in the accident was having a valid insurance at the time of accident. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, the claim petition was tried along with connected matter. Exts.A1 to A15 were marked on the side of the claimants and PWs 1 and 2 were examined. The respondents have not chosen to adduce any oral or documentary evidence. 4. 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 the 2[nd] respondent driver. Since insurance coverage of the offending 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.2,09,280/together with interest at the rate of 7% per annum from the date of petition, i.e., 03.12.2004 till realisation and the insurer was directed to satisfy the award. **MACA.No.1315 OF 2010** -4- 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent owner was dispensed with, by the order of this Court dated 24.10.2019. 7. 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. 8. 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 **MACA.No.1315 OF 2010** -5- 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. 9. 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 non-violation of the principle of equitability. **MACA.No.1315 OF 2010** -6- 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||Head of claim|Amount allowed| |---|---|---| |1|Pain and suffering|30,000/-| |2|Loss of earning|12,000/-| |3|Treatment and transport expenses|90,000/-| |4|Permanent disability|65,280/-| |5|Loss of amenities|12,000/-| ||**Total**|**2,09,280/-**| 11. The accident occurred on 27.08.2004. At the time of accident, the appellant was aged 33 years. He claimed a monthly income of Rs.5,000/- as Driver. The appellant was examined as PW1. No materials were produced before the Tribunal to prove the monthly income of the appellant. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,000/-, for the purpose of assessing compensation under various heads. 12. 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 **MACA.No.1315 OF 2010** -7- 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. 13. 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 **MACA.No.1315 OF 2010** -8- 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. 14. 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. 15. The document marked as Ext.A3 is the wound certificate. Exts.A6 and A7 are the discharge summaries. As per medical records, the appellant had sustained fracture **MACA.No.1315 OF 2010** -9- tibia/fibula (R) leg with compartment syndrome, crush amputation 4[th] toe (R) foot. There was infection in the fracture site, along with avascular segment of bone at fracture site in upper 3[rd] tibia. Illizarov ring fixator was applied. 16. Ext.A8 is the disability certificate issued by the Medical Board at General Hospital, Ernakulam, in which the permanent disability was assessed as 16%. The disabilities noted in Ext.A8 are difficulty in walking, (R) knee movements from 180[0] to 80[0] flexion, (R) movements from 90[0] to 100[0] planter flextion, 2 cm shortening (R) leg. The appellant had undergone inpatient treatment for a period of 64 days, in four different spells. The Tribunal accepted the percentage of disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. Ext.A9 series of medical bills are for a sum of Rs.87,991/-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.2,000/- per month for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as **MACA.No.1315 OF 2010** -10- borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is re-fixed as 8 months. Since the monthly income of the appellant is refixed notionally as Rs.4,500/-, the compensation under the head loss of earning is re-fixed as Rs.36,000/- (4,500 x 8), resulting an additional compensation of **Rs.24,000/-** (36,000-12,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 64 days. Towards treatment and transport expenses, the Tribunal awarded a sum of Rs.90,000/-. Ext.A9 series of medical bills are for a sum of Rs.87,991/-. 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. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, Rs.2,000/- awarded by the Tribunal under the head Transportation expenses is re-fixed as Rs.4,000/-, resulting an additional compensation of **Rs.2,000/-** (4,000 - **MACA.No.1315 OF 2010** -11- 2,000). 19. The Tribunal awarded no amount towards bystander expenses. Considering the nature of injuries sustained by the appellant and the inpatient treatment for 57 days, as borne out from medical records, this Court deem it appropriate to grant a sum of **Rs.9,600/-** (150 x 64) as compensation under this head. 20. The Tribunal awarded no amount towards extra nourishment. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of **Rs.6,400/-** (100 x 64) as compensation under this head. 21. The Tribunal awarded no amount towards damage to clothing. Considering the fact that the accident is of the year 2004, this Court deem it appropriate to grant a sum of **Rs.750/-** as compensation under this head. 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 **MACA.No.1315 OF 2010** -12- 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. 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 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 **MACA.No.1315 OF 2010** -13- 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 33 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** applied by the Tribunal is correct and proper. 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.65,280/- (2,000 x 17 x 16 x 12/100). Since the monthly income of the appellant is refixed notionally as Rs.4,500/-, applying the multiple of 16 applicable to the age group of the appellant and the percentage of permanent disability as 16%, the compensation under the head permanent disability is re-fixed **MACA.No.1315 OF 2010** -14- as Rs.1,03,680/- (4,500 x 12 x 16 x 12/100), resulting an additional compensation of **Rs.38,400/-** (1,03,680 - 65,280) under this head. 27. Towards loss of amenities the Tribunal awarded a sum of Rs.12,000/-. In Ext.A8 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 16%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.A8 disability certificate, the compensation awarded by the Tribunal under this head re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.8,000/-** (20,000 - 12,000). 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.89,150/-** (Rupees eighty nine thousand one hundred and fifty only) [24,000 + 2,000 + 9,600 + 6,400 + 750 + 38,400 + 8,000] 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 252 days in filing the appeal, which was condoned by order dated 24.10.2019 in C.M. Application **MACA.No.1315 OF 2010** -15- No.1660 of 2010, on 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 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** bpr