Jeswin Varghese v. Sreeraj S. Nair and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 14TH DAY OF NOVEMBER 2019 / 23RD KARTHIKA, 1941** ## **MACA.No.4249 OF 2019** **AGAINST THE AWARD IN OPMV 914/2015 DATED 07-06-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA** ## **APPELLANT/PETITIONER :** **JESWIN VARGHESE, AGED 22 YEARS MANJUMMEL HOUSE, ANAPRAMPAL NORTH P.O., THALAVADY VILLAGE, KUTTANADU TALUK.** **BY ADVS. SRI.SANJAY THAMPI SMT.STEFFY V.J.** ## **RESPONDENTS/RESPONDENTS :** **1 SREERAJ.S.NAIR, S/O.SASEENDRAN NAIR, SREE BHAVAN (H), NEAR VAIKATHILLAM PALAM, NEDUMPURAM VILLAGE, THIRUVALLA689110.** - **2 NISSAM P.NAZAR, S/O.NAZARUDHEEN, PLAMOOTTIL (H), PALLIKACHIRA P.O., PAIPPADU, CHANGANASSERY- 686537.** **3 THE MANAGER, ICICI LOMBARD GENERAL INSURANCE CO.LTD., GROUND FLOOR, MAHESH ESTATE, VAZHUTHACADU, THIRUVANANTHAPURAM- 685014.** ## **SRI R.AJITH KUMAR VARMA - STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.4249 OF 2019** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.914 of 2015 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta, 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 27.03.2015, while he was travelling in a motorcycle bearing registration No.KL-04/AF303. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-33/D-8287, driven by the 1[st] respondent, owned 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 car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,70,250/-. 2. Before the Tribunal, the 1[st] respondent driver and the 2[nd] respondent owner remained absent and they were set ex-parte. 3. The 3[rd] respondent insurer filed written statement **MACA.No.4249 OF 2019** **3** admitting the insurance coverage of the offending car involved in the accident. The age, nature of injuries, period of treatment, occupation and income stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. It was also contended that the rider of the motorcycle was not having valid driving licence at the time of accident. 4. Before the Tribunal, the claim petition was tried along with other connected claim petitions arising out of the very same accident. Exts.A1 to A12 were marked on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary 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 the 1[st] respondent. Since the insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.2,75,050, and the insurer was directed to satisfy the award, with interest at the rate of 9% per annum from the date of petition, i.e., **MACA.No.4249 OF 2019** **4** 27.06.2015 till the date of realisation, together with proportionate cost, within 30 days from the date of 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. Since the insurance coverage of the offending vehicle is admitted by the 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 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 **MACA.No.4249 OF 2019** **5** 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 principle of equitability. 11. In the instant case, the compensation awarded by **MACA.No.4249 OF 2019** **6** the Tribunal under various heads reads thus; ||Head of claim|Amount<br>claimed|Amount<br>allowed|Basis/vital<br>details in a<br>nutshell| |---|---|---|---|---| ||Income/Notional<br>income|18000|7000|Occurrence<br>was in the<br>year 2015| |1|Transport to hospital|90000|21000|7000x3<br>months| |2|Damage to clothing|14000|2000|| |3|Medical expenses|6000|1000|Ext.A12<br>series| |4|Pain and sufferings|45000|211110|| |5|Compensation<br>for<br>permanent disability|100000|30000|| |6|Loss of amenities &<br>enjoyment of life|380000|181440|| |7|Bystanders expenses|60000|10000|250x17 days| |8|Extra nourishment|8000|4250|250x17 days| |9|Total amount claimed<br>in various heads|9000|4250|| |10||Rs.9,70,250/-<br>limited up to<br>Rs.3,70,250/-|Rs.2,75,050/-|| 12. The accident occurred on 27.03.2015. At the time of accident, the appellant was aged 18 years. The appellant claimed a monthly income of Rs.18,000/- as a timber merchant. 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 **MACA.No.4249 OF 2019** **7** income notionally as Rs.7,000/-, 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 **MACA.No.4249 OF 2019** **8** 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 month. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2015, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it **MACA.No.4249 OF 2019** **9** appropriate to re-fix the monthly income of the appellant notionally as Rs.10,000/-, for the purpose of assessing compensation under various heads. 16. Ext.A9 is the copy of wound certificate and Ext.A10 is the discharge summary issued from Pushpagiri Medical College Hospital, Thiruvalla. Ext.A12 series are the medical bills. As per the medical records, in the accident, the appellant sustained posterior dislocation of left hip, fracture distal end of left radius and fracture distal 1/4[th] of left ulna. He had undergone inpatient treatment for a total period of 17 days. 17. In Ext.A11 disability certificate issued by the Standing Disability Assessment Board, General Hospital, Pathanamthitta, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 12%. 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.21,000/-, at the rate of Rs.7,000/- per month for a period of 3 months. Considering the nature of injuries **MACA.No.4249 OF 2019** **10** sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.10,000/-, the compensation under the head loss of earning is re-fixed as Rs.50,000/- (10,000 x 5), resulting an additional compensation of **Rs.29,000/-** (50,000 – 21,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 17 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. 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 no enhancement in this appeal. 20. Towards bystander expenses the Tribunal awarded a sum of Rs.4,250/- (250 x 17) Towards extra nourishment, the Tribunal awarded a further sum of Rs.4,250/- (250 x 17). The accident is of the year 2015 and the appellant had **MACA.No.4249 OF 2019** **11** undergone inpatient treatment for 17 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 these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards damage to clothing, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2015, the compensation under this head is refixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 – 1,000). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.21,110/-, covered by Ext.A12 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.30,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the **MACA.No.4249 OF 2019** **12** 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. 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, 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 **MACA.No.4249 OF 2019** **13** **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 18 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 correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.18,14,440/- (7,000 x 12 x 18 x 12/100). Since the monthly income of the appellant is re-fixed notionally as Rs.10,000/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 12%, the compensation under the head permanent disability is re- **MACA.No.4249 OF 2019** **14** fixed as Rs.2,59,200/- (10,000 x 12 x 18 x 12/100), resulting an additional compensation of **Rs.77,760/-** ( 2,59,200 – 1,81,440) under this head. 28. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. In Ext.A11 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 12%. Considering the nature of injuries sustained and the permanent disability that has been assessed in Ext.A11 disability certificate, the compensation awarded by the Tribunal under this head re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 – 10,000). 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,12,260/-** (Rupees One lakh twelve thousand two hundred and sixty only) [29,000 + 500 + 77,760 + 5,000] 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 **MACA.No.4249 OF 2019** **15** 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/18/11