Jayanti Shibu v. Anoop Sadanandan; Abhilash Sadanandan; The Divisional Manager, M/S New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** ## **MACA.No.2329 OF 2018** **AGAINST THE AWARD IN OP(MV) No.719/2014 DATED 28-09-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** **JAYANTHI SHIBU, AGED 42 YEARS W/O.SHIBU, PUTHENNIKARTH HOUSE,EDAKOCHI. BY ADVS. SRI.MATHEWS K.PHILIP SMT.T.MANASY** ## **RESPONDENT/S:** **1 ANOOP. S/O.SADANANDAN, 4/718 (4/327), KOLLEREZHATH HOUSE, VAZHATHARAVELI TEMPLE,THRICHATTUKULAM, PANAVALLY, ALAPPUZHA - 688 536. 2 ABHILASH, S/O.SADANANDAN, 4/718 (4/327),KOLLEREZHATH HOUSE, VAZHATHARAVELI TEMPLE,THRICHATTUKULAM, PANAVALLY, ALAPPUZHA - 688 536. 3 THE DIVISIONAL MANAGER M/S.NEW INDIA ASSURANCE COMPANY LIMITED, KOTTAKKAL ARYA VAIDYASALA BUILDING, M.G.ROAD, ERNAKULAM - 682 016. R3 BY ADV. SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 2329 of 2018 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.719 of 2014 on the file of the Motor Accidents Claims Tribunal, Ernakulam, 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 29.05.2013 while she was standing on the side of a public road. At the place of accident, she was knocked down by a car bearing registration No.KL-01/AG-Temp-9087 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.7,00,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 filed joint written statement admitting the accident; however denying the negligence alleged against the 2[nd] respondent. They contended that the accident occurred due to negligence on the -3- MACA. No. 2329 of 2018 part of the appellant in crossing the road. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying the negligence alleged against its driver. 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, Exts.A1 to A9 were marked on the side of the appellant/claimant. The document marked as Ext.X1 is the disability certificate issued by the Medical Board assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident. 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 its driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total -4- MACA. No. 2329 of 2018 compensation of Rs.3,54,000/-, together with interest at the rate of 9% 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 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 -5- MACA. No. 2329 of 2018 '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, reasonableness and non-violation of the -6- MACA. No. 2329 of 2018 ## principle of equitability. 11. In the instant case, the compensation awarded by ## the Tribunal under various heads reads thus; |Heads|Amount<br>claimed|Amount<br>awarded|| |---|---|---|---| |Loss of earnings|100000|48000|| |Transport to hospital and<br>back to home|5000|12000|| |Extra nourishment|12000|12000|| |Damage to clothes and<br>articles|3000|3000|| |Attendant expenses|20000|15000|A4| |Treatment expenses|40000|26000|| |Compensation for pain and<br>sufferings|80000|75000|| |Compensation for loss of<br>amenities and comforts|50000|40000|| |Compensation for<br>continuing or permanent<br>disability if any|200000|108000|| |Compensation for loss of<br>earning power|150000|0|| |Compensation for<br>disfiguration|20000|0|| |Future treatment expenses|20000|15000|| |Total|**700000**|354000|| |Claim limited to<br>Rs.2,50,000/-|||| 12. The accident occurred on 29.05.2013. At the time of accident, the appellant was aged 39 years. The appellant -7- MACA. No. 2329 of 2018 claimed a monthly income of Rs.10,000/- as a tailor-cumhousewife. 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.6,000/-, 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 -8- MACA. No. 2329 of 2018 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 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 -9- MACA. No. 2329 of 2018 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 2013, 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.9,000/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A3 is the wound certificate and Ext.A4 is the discharge card. As per medical records, the appellant sustained bilateral fracture superior and inferior pubic rami on both sides; fracture right sacral ala; fracture of greater tuberosity of right humerus with separation two fragments; vertical and transverse fracture of left superior pubic ramus; tiny fragments occurred adjacent to fractures -10- MACA. No. 2329 of 2018 sites of superior pubic rami on both sides; left inferior pubic ramus showed separated fragments at the fracture site; right inferior pubic ramus showed separated fragments at the fracture site; fracture left 2[nd] rib with pneumothorax and atelectatic changes noted in the posterior basal segment of left lower lobe; minimal bilateral pleural effusion. She had undergone inpatient treatment for a period of 15 days. 17. In Ext.X1 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 10%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.48,000/-, at the rate of Rs.6,000/- for a period of 8 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 8 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the -11- MACA. No. 2329 of 2018 monthly income of the appellant is re-fixed notionally as Rs.9,000/-, the compensation under the head loss of earning is re-fixed as Rs.72,000/- (9,000 x 8), resulting an additional compensation of **Rs.24,000/-** (72,000 – 48,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 15 days. The accident is of the year 2013. Towards transportation to hospital, the Tribunal awarded a sum of Rs.12,000/-. 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 cannot be said to be on the lower side, which requires no enhancement in this appeal. 20. Towards bystander expenses the Tribunal awarded a sum of Rs. 15,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.12,000/-. The accident is of the year 2013 and the appellant had undergone inpatient treatment for 15 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as -12- MACA. No. 2329 of 2018 borne out from medical records, the compensation awarded by the Tribunal under these heads cannot be said to be on the lower side, which requires no enhancement in this appeal. 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.3,000/-. Considering the fact that the accident is of the year 2013, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.26,000/-, covered by Ext.A7 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.75,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the -13- MACA. No. 2329 of 2018 compensation awarded by the Tribunal under this head is on the higher side, which is scaled down to Rs.50,000/-, resulting an **excess payment** of **Rs.25,000/-** (75,000 – 50,000), which has to be deducted from the additional compensation granted in this appeal. 24. 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, -14- MACA. No. 2329 of 2018 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. 25. 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. 26. In the instant case, as on the date of accident, the appellant was aged 39 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 **15** applied by the Tribunal is correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,08,000/- (6,000 x 12 x 15 x -15- MACA. No. 2329 of 2018 10/100). Since the monthly income of the appellant is re-fixed notionally as Rs.9,000/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of permanent disability as 10%, the compensation under the head permanent disability is re-fixed as Rs.1,62,000/- (9,000 x 12 x 15 x 10/100), resulting an additional compensation of **Rs.54,000/-** (1,62,000 – 1,08,000). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.40,000/-. In Ext.X1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. Considering the nature of injuries sustained and 10% permanent disability on account of those injuries, as assessed in Ext.X1 disability certificate, the compensation awarded by the Tribunal under this head, which is on the higher side, is scaled down to Rs.30,000/-, resulting an **excess payment** of **Rs.10,000/-** (40,000 – 30,000), which has to be deducted from the additional compensation granted in this appeal. -16- MACA. No. 2329 of 2018 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.43,000/-** (Rupees forty three thousand only) [(24,000 + 54,000) – (25,000 + 10,000)] 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 559 days in filing this appeal, which was condoned by the order dated 30.09.2019, subject to the condition that in case enhanced compensation is awarded, the appellant will notbe 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 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 -17- MACA. No. 2329 of 2018 Official Memorandum No.D1-62475/2016 dated 07.11.2019. 30. The appellant to provide her Bank account details 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. All pending interlocutory applications in this appeal are closed. **Sd/ANIL K.NARENDRAN JUDGE** das