Jijo Thomas Paliekara v. P.C. Thomas & Others and United India Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941** ## **MACA.No.2195 OF 2009** **AGAINST THE AWARD IN OPMV 546/2004 DATED 18-03-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** **JIJO THOMAS PALIEKKARA HOUSE, PERAMBRA DESOM 7 P.O,, MUKUNDAPURAM TALUK, THRISSUR DIST.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT/S:** - **1 P.C. THOMAS & OTHERS PARANICKAL HOUSE, PERAMBRA P.O..** - **2 TIJO THOMAS PARANICKAL HOUSE, PERMBRA P.O.,** - **3 UNITED INDIA INSURANCE CO. LTD. SOUTH JUNCTION, CHALAKUDY.** ## **R1 BY ADV. SRI.V.JAYAPRADEEP** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 2195 of 2009 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.546 of 2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 26.12.2003, while he was travelling as pillion rider on a motorcycle bearing registration No.KL-8/V-4982, owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, while the 2[nd] respondent was overtaking a goods vehicle, the appellant's leg hit on the goods vehicle. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 2[nd] respondent rider, 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 -3- W.P.(C). No. 2195 of 2009 filed written statement admitting insurance coverage of the motorcycle involved in the accident; however, denying the negligence alleged against the 2[nd] respondent rider. 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, Exts.A1 to A7 were marked on the side of the appellant/claimant. On the side of the respondents, Exts.B1 and B2 were marked. Both sides have not chosen to adduce any oral 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 riding of motorcycle by the 2[nd] respondent rider. 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 compensation of Rs.1,33,960/-, together with interest at the rate of 7% per annum from the date of petition till realisation, with proportionate cost, and the insurer was -4- W.P.(C). No. 2195 of 2009 directed to satisfy the award. 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. 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 be weighed in golden scales. But at the same time it has be to be borne in -5- W.P.(C). No. 2195 of 2009 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. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; Loss of earning 10,000 2,000 x5 -6- W.P.(C). No. 2195 of 2009 |Medical expenses|26,400| |---|---| |Bystander expenses|1,600| |Transportation expenses|2,000| |Pain and discomfort|20,000| |Loss of amenities|15,000| |Disability compensation|48,960| |Deformity compensation|10,000| ||---------------------| |Total|1,33,960/-| ||============| 11. The accident occurred on 26.12.2003. At the time of accident, the appellant was aged 21 years. He claimed a monthly income of Rs.3,000/- as Factory worker. No realiable 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.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 -7- W.P.(C). No. 2195 of 2009 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. 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)** , -8- W.P.(C). No. 2195 of 2009 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. 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2003, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income claimed as Rs.3,000/- in the claim petition, cannot be said to be on the higher side, which can be taken as the notional monthly -9- W.P.(C). No. 2195 of 2009 income of the appellant, for the purpose of assessing compensation under various heads. 15. As per Ext.A3 wound certificate issued from St.James Hospital, Chalakudy, the appellant was admitted there complaining pain on the right knee, open lacerated wound 10x8 cm on the right knee with bleeding, and Grade III open fracture of the right knee with flap avulsion and comminuted fracture of the right patella with bone loss. As per Ext.A4 discharge card, the appellant had undergone inpatient treatment for 13 days. For the second time he was admitted on 12.06.2006, however, the date of discharge was not mentioned. He was again admitted in the hospital on 09.08.2007 and undergone inpatient treatment for 3 days. As per Ext.A4 his case was diagnosed as comminuted fracture of right patella with bone loss, open fracture of the lateral tibial condyle and comminuted fracture of the right femoral condyle. 16. In Ext.A5 disability certificate issued by an individual doctor Dr.C.P.Johny, the permanent disability of the appellant, on account of the injuries sustained in the accident, -10- W.P.(C). No. 2195 of 2009 is certified as 29%. The Doctor, who issued Ext.A5 disability certificate was not examined to prove that certificate. The Tribunal converted the disability assessed in Ext.A5 into whole body disability, on the usual ratio of 35 to 40%, and fixed the percentage of disability as 12%, for the purpose of awarding compensation under various heads. Since the appellant failed to prove the disability certificate by examining the doctor concerned, the procedure adopted by the Tribunal in this regard cannot be said to be arbitrary or illegal, warranting an interference in this appeal. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.10,000/-, at the rate of Rs.2,000/- for a period of 5 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 5 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,000/-, the compensation under the head loss of earning is re-fixed as Rs.18,000/- (3,000 x 6), resulting an additional -11- W.P.(C). No. 2195 of 2009 ## compensation of **Rs.8,000/-** (18,000 – 10,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 16 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 is refixed as Rs.3,000/-, resulting an additional compensation of **Rs.1,000/-** (3,000 – 2,000). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.1,600/- (100 x 16). The Tribunal awarded no compensation under the head extra nourishment. The accident is of the year 2003. The appellant had undergone inpatient treatment for 16 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under the head bystander expenses is re-fixed as Rs.2,400/- (150 x 16), resulting an additional compensation of **Rs.800/-** (2,400 – 1,600) under -12- W.P.(C). No. 2195 of 2009 this head. The appellant is granted a further sum of **Rs.1,600/-** (16 x 100) towards extra nourishment. 20. Towards damage to clothing, no compensation has been awarded by the Tribunal. Considering the fact that the accident is of the year 2003, 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.26,400/-, 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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 under this head. -13- W.P.(C). No. 2195 of 2009 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 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. -14- W.P.(C). No. 2195 of 2009 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 21 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 17 applied by the Tribunal is not correct and and the proper multiplier to be applied is **18** . 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.48,960/- (2,000 x 12 x 17 x 12/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,000/-, 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-fixed as Rs.77,760/- -15- W.P.(C). No. 2195 of 2009 (3,000 x 12 x 18 x 12/100), resulting an additional compensation of **Rs.28,800/-** (77,760 -48,960). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. In Ext.A5 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.A5 disability certificate, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.40,950/-** (Rupees forty thousand nine hundred and fifty only) [8,000 + 1000 + 800 + 1,600 + 750 + 28,800 ] 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 months from the -16- W.P.(C). No. 2195 of 2009 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. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant as per 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** das