Jijo Benedict v. Annamma and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941** **MACA.No.1835 OF 2011** **AGAINST THE AWARD IN OPMV 658/2005 DATED 23-05-2011 OF ADDITIONAL .DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANT/PETITIONER:** **JIJO BENEDICT S/O JOSEPH BALUMMEL HOUSE, KANAKKALYPADY BHAGOM,, VELLAYAMKUDY KARA, KATTAPANA VILLAGE.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/RESPONDENTS:** |**1**|**ANNAMMA**| |---|---| ||**KURIKILUMKATTIL HOUSE,, KATTAPPANA P.O.-685**| ||**508.**| |**2**|**THE ORIENTAL INSURANCE CO.LTD.**| ||**REPRESENTED BY ITS DIVISIONAL MANAGER,,**| ||**MUVATTUPUZHA-686 661.**| |**3**|**PRASEED S/O.JOSEPH**| ||**NILLIKKAL HOUSE, UPPUKANDOM,, KALKOONTHAL**| ||**VILLAGE-685 510.**| |**4**|**MANOJ MATHEW SO.MATHAI**| ||**CHIRACKAL HOUSE, CHELIMADA KARA,, KUMILY-685**| ||**509.**| ||**R1 BY ADV. SRI.A.R.GEORGE**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1835 OF 2011 ..2.. ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.658 of 2005 on the file of the Motor Accidents Claims Tribunal, Thodupuzha, 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 29.04.2005, while he was riding a motorcycle bearing registration No.KL-7/AA-1865. At the place of accident, the motorcycle was hit by an autorickshaw bearing registration No.KL-6/C-4198, owned by the 1[st] respondent, driven by the 3[rd] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 3[rd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,80,800/-, under various heads, which was limited to Rs.4,50,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal respondents 1 and 3 remained remained absent and they were set _ex parte_ . MACA.No.1835 OF 2011 **==> picture [17 x 9] intentionally omitted <==** 3. The 2[nd] respondent insurer filed written statement admitting the insurance coverage of the autorickshaw involved in the accident. The insurer pointed out that the offending vehicle was sold to the additional 4[th] respondent on 25.10.2004, as per an agreement; however the transfer was never intimated to the insurer. The 2[nd] respondent denied the involvement of the autorickshaw in the alleged accident. The insurer disputed the age, occupation and income of the appellant/claimant and also the quantum of compensation. 4. Before the Tribunal, Exts.A1 to A14 were marked on the side of the appellant/claimant. PWs 1 and 2 were examined on the side of the appellant. On the side of the respondents Exts.B1 and B2 were 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 the autorickshaw by the 3[rd] respondent driver. As per Ext. B2 the 1[st] respondent sold the offending vehicle to the 4[th] respondent on 25.10.2004. The Tribunal held that, the certificate of MACA.No.1835 OF 2011 **==> picture [18 x 9] intentionally omitted <==** insurance shall be deemed to have been transferred in favour of the 4[th] respondent, as provided by Section 157 of the Motor Vehicles Act. Therefore, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.3,91,222/-,which was rounded off to Rs.3,91,300/-, together with interest at the rate of 7.5% per annum from the date of petition till date of deposit, 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 2[nd] respondent insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1,3 and 4 was dispensed with, by the order of this Court dated 17.11.2011. 8. The issue that arises for consideration in this appeal MACA.No.1835 OF 2011 **==> picture [17 x 8] intentionally omitted <==** 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 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 MACA.No.1835 OF 2011 **==> picture [18 x 8] intentionally omitted <==** 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; |Sl.<br>No<br>.|Head of claim|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning|42,000/-|12,000/-|2000 per month x6<br>months| |2|Transportation<br>expenses|10,000/-|10,000/-|| |3|Damage to clothes|500/-|500/-|| |4|Extra nourishment|3,000/-|3,000/-|IP for 100 days| |5|Medical Expenses|65,000/-|2,12,722/-|Bills produced| |6|Bystander Expenses|5,000/-|5,000/-|| |7|Future treatment|35,000/-|Not allowed|| |8|Incidental charge|10,000/-|Not allowed|| MACA.No.1835 OF 2011 ..7.. |9|Pain and suffering|35,000/-|25,200/-|Fracture disclocation of<br>right hip treated by<br>open reduction and<br>fixation followed by<br>total hip replacement| |---|---|---|---|---| |10|Loss of amenities|25,000/-|15,000/-|| |11|Loss of earning<br>power|50,000/-|Not allowed|| |12|Disability|2,00,000/-|1,08,000/-|| ||Total|Rs.4,80,800/<br>- limited to<br>Rs.4,50,000/<br>-|Rs.3,91,222/-<br>rounded as<br>Rs.3,91,300/-|Rs.3,91,300/- with<br>interest at the rate<br>of 7.5% p.a. From<br>27.8.05 to<br>realisation| 12. The accident occurred on 29.04.2005. At the time of accident, the appellant was aged 36 years. The appellant claimed a monthly income of Rs.3500/- as the Manager in a bakery. The appellant himself was examined as PW1. Ext.A1 certificate was produced before the Tribunal to show the monthly income of the appellant. However, the said document was not proved by examining the employer. 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. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **13 SCC 236]** the Apex Court reckoned the monthly income of MACA.No.1835 OF 2011 **==> picture [18 x 8] intentionally omitted <==** 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 Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , MACA.No.1835 OF 2011 **==> picture [18 x 9] intentionally omitted <==** 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. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2005, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.3,500/- claimed by the appellant cannot be said to be on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation MACA.No.1835 OF 2011 **==> picture [22 x 7] intentionally omitted <==** under various heads. 16. The document marked as Ext.A4 is the Accident Register Cum Wound Certificate issued from St.John's Hospital, Kattappana. Exts. A5 and A8 are treatment certificates and A6 and A9 are the discharge summaries. As per Ext. A4, in the accident, the appellant sustained fracture dislocation of right hip and abrasion over right knee old spine trauma. Ext.A5 is a treatment certificate issued from St.John's Hospital, Kattappana, which shows that the appellant was admitted in the hospital on 29.04.2005 with type II fracture dislocation of right hip. He was advised fixation of the accetabular fracture and was discharged at request on 30.04.2005. Ext. A6 is the treatment certificate issued from Vathakat Orthopedics Hospital, Ernakulam, which shows that he was admitted at that hospital on 30.04.2005 and was discharged on 20.07.2005. The diagnosis recorded in Ext. A6 is fracture dislocation of right hip. Open reduction and fixation of accetabular fracture were done. He was again admitted in that hospital on 25.08.2005 and discharged on 09.09.2005 and thereafter, on MACA.No.1835 OF 2011 ..11.. 28.11.2005 and discharged on 05.12.2005. As per Ext. A8 treatment certificate issued from the Specialist Hospital, Ernakulam, the appellant has post-traumatic arthritis of right hip joint and that he was advised to undergo hip replacement. As per Ext. A9 discharge summary issued from the Specialist Hospital, the appellant was admitted at that hospital on 25.02.2007 and discharged on 14.03.2007. He underwent total hip replacement on 27.02.2007. The appellant had undergone inpatient treatment for a total period of 100 days. 17. In Ext.A10 disability certificate, the Medical Board of the Taluk Head Quarters Hospital, Thodupuzha assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 30%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. In Ext. A10, it is stated that the appellant has difficulty in walking, sitting, squatting and abduction, adduction and rotation at right hip are painful. 18. Towards loss of earning, the Tribunal awarded a MACA.No.1835 OF 2011 **==> picture [22 x 7] intentionally omitted <==** sum of Rs.12,000/-, at the rate of Rs.2,000/- for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is re-fixed as 7 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, the compensation under the head loss of earning is re-fixed as Rs.24,500/- (3,500 x 7), resulting an additional compensation of **Rs.12,500/-** (24,500 – 12,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 100 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.10,000/-. 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.5,000/- (50 x 100). Towards extra nourishment, the MACA.No.1835 OF 2011 **==> picture [22 x 9] intentionally omitted <==** Tribunal awarded a further sum of Rs.3,000/- (30 x 100). The accident is of the year 2005 and the appellant had undergone inpatient treatment for 100. 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.15,000/- (150 x 100), resulting an additional compensation of **Rs.10,000/-** (15,000 – 5,000). The compensation under the head extra nourishment is re-fixed as Rs. 10,000/(100 x 100), resulting an additional compensation of **Rs. 7,000/-** (10,000 – 3,000). 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2005, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.2,12,722/-, covered by Ext.A13 series of medical bills. In the absence of any further materials, the MACA.No.1835 OF 2011 **==> picture [22 x 9] intentionally omitted <==** 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.25,000/-. 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 the head pain and suffering is re-fixed as Rs.30,000/-, resulting an additional compensation of **Rs. 5,000/-** (30,000 – 25,00) 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 MACA.No.1835 OF 2011 **==> picture [22 x 9] intentionally omitted <==** 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. 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 36 years. In the light of the decisions of MACA.No.1835 OF 2011 **==> picture [22 x 8] intentionally omitted <==** 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/- (2,000 x 12 x 15 x 30/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of permanent disability as 30%, the compensation under the head permanent disability is re-fixed as Rs.1,89,000/- (3,500 x 12 x 15 x 30/100), resulting an additional compensation of **Rs.81,000/-** (1,89,000 – 1,08,000). 289. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. In Ext.A10 disability certificate issued by the Medical Board at Taluk Head Quarters Hospital, Thodupuzha, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 30%. Considering the nature of injuries sustained and the MACA.No.1835 OF 2011 **==> picture [21 x 9] intentionally omitted <==** permanent disability that has been assessed in Ext.A10 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.30,000/-, resulting an additional compensation of **Rs. 15,000/-** (30,000 – 15,000). 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,30,750/-** (Rupees one lakh thirty thousand seven hundred and fifty only [12,500 + 10,000 + 7,000 + 250 + 5,000 + 81,000 + 15,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] 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/claimant 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.D162475/2016 dated 07.11.2019. MACA.No.1835 OF 2011 **==> picture [22 x 8] intentionally omitted <==** This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** kkj