Joby P.G. v. Mohammed Ali E.K. and Rinoy Varghese and The National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941** ## **MACA.No.148 OF 2015** ## **AGAINST THE AWARD DATED 23-06-2014 IN OP(MV)No.59/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/PETITIONER:** **JOBY P.G. S/O.GEROGE, PARAKKATTU HOUSE, AMMAYAN CITY, VADATTUPARA P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT.** **BY ADV. SRI.K.K.MOHAMED RAVUF** ## **RESPONDENTS/RESPONDENTS:** **1 MOHAMMED ALI E.K. S/O.KOCHUMMA, ERUPPAKOTTIL HOUSE, PERINGALA, ABALAPPADY JUNCTION, KUNNATHUNADU-683 565, ERNAKULAM DISTRICT. 2 RINOY VARGHESE S/O.VARGHESE, VADAKKEDATH VETTAM HOUSE, PAZHANGADU, KIZHAKKAMBALAM, ERNAKULAM DISTRICT- 683533 3 THE NATIONAL INSURANCE COMPANY LTD BRANCH OFFICE, 1ST FLOOR, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, NORTH PARAVUR, ERNAKULAM DISTRICT-683351** ## **R3 BY ADV. SRI.LAL GEORGE, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.148 OF 2015** 2 ## **JUDGMENT** Appellant is the claimant in O.P.(MV) No.59 of 2009 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, a claim petition filed under Section 166 of the Motor Vehicles Act, claiming compensation on account of the injuries sustained in a motor accident, which occurred on 16.10.2008, while he was travelling in a motorcycle bearing registration No.KL-44/3913. At the place of accident, the motorcycle was hit by a bus bearing registration No.KL-40/A-8355 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 offending bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,42,500/under various heads, which was limited to Rs.1,60,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set exparte. The 3[rd] respondent insurer filed a written statement admitting insurance coverage of the **MACA.No.148 OF 2015** 3 offending bus; however, denying the negligence alleged against its driver. Insurer contended that the compensation claimed by the appellant/claimant under different heads are on the higher side. 3. Before the Tribunal, the claim petition was tried along with connected matter. On the side of the claimants, Exts.A1 to A13 documents were marked, out of which Exts.A9 to A13 are the documents in respect of the appellant/claimant. Ext.X1 is the disability certificate issued by the Medical Board at the General Hospital, Ernakulam. Ext.B1 is the copy of the insurance policy of the offending vehicle. 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 offending bus by the 2[nd] respondent driver. Since insurance coverage of the said vehicle is not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,46,297/- together with interest at the rate of 8% per annum from the date of petition till its realisation, with proportionate cost and directed the 3[rd] respondent insurer to satisfy the award. **MACA.No.148 OF 2015** 4 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/claimant and the learned Standing Counsel appearing 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 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 **MACA.No.148 OF 2015** 5 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: |Sl.<br>No.|Head of claim<br>Compensation for|Amount<br>claimed<br>(in Rupees)|Amount<br>awarded<br>(in<br>Rupees)|Basis-vital details in a<br>nut shell| |---|---|---|---|---| |1|Loss of earnings|20,000|10,500|Rs.3500x3 months| |2|Future loss of earnings|35,000|NIL|| |3|Transport to Hospital|2,000|1,000|2 admissions| |4|Extra nourishment|3,000|2,250|Rs.750x3 months| **MACA.No.148 OF 2015** 6 |5|Attendant charges|4,000|2,550|Rs.150x17 days| |---|---|---|---|---| |6|Medical expenses|30,000|30,397|Actual medical bills| |7|Pain & Suffering|25,000|15,000|1#IP<br>17<br>days+laceration| |8|Loss of amenities etc|15,000|9,000|| |9|Loss of earning power|30,000|NIL|| |10|Disability|58,000|75,600|Rs.3500x12x18x10%| |11|Mental shock and agony|5,000|NIL|| |12|Disfigurement|15,000|NIL|| ||Total|2,42,500<br>limited to<br>1,60,000|1,46,297/-|Rs.1,46,297/- along<br>with interest @ 8%<br>p.a.| 11. The accident occurred on 16.10.2008. At the time of accident, the appellant was aged 23 years. He claimed a monthly income of Rs.5,000/- as an electrician working in Sanjoe Hospital, Perumbavoor. No materials were produced before the Tribunal to prove the monthly income of the appellant. He has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal took the monthly income notionally as Rs.3,500/- 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 **MACA.No.148 OF 2015** 7 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)** , 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 **MACA.No.148 OF 2015** 8 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 2008, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to above, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.5,000/-, as claimed in the claim petition, for the purpose of assessing compensation under various heads. 15. As per Ext.A9 wound certificate issued from MOSC Medical College Hospital, Kolenchery, the appellant sustained contusion with laceration 4x2 cm right side forehead. Nasal **MACA.No.148 OF 2015** 9 bleeding was present. He sustained small laceration 2x0.5 cm right posterio medical elbow, lacerated wound 3x1.5 cm right knee and type I open comminuted fracture patella right. Ext.A10 discharge summary would show that the appellant had undergone inpatient treatment for the period from 16.10.2008 to 27.10.2008. Ext.A11 is another discharge summary issued from MOSC Medical College Hospital, which would show that the appellant had undergone inpatient treatment for the period from 9.6.2009 to 13.6.2009. Later, he was admitted for implant removal, which was done on 10.6.2009. Ext.A12 certificate issued by the Senior Consultant of Orthopaedics Department would show that he was admitted on 11.11.2008 for rehabilitation and physiotherapy following fracture right patella. He had undergone inpatient treatment for a total period of 25 days. In Ext.X1 disability certificate issued by the Medical Board at the General Hospital, Ernakulam a whole body disability of 10% has been assessed. 16. Towards compensation for pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, **MACA.No.148 OF 2015** 10 as borne out from medical records, the compensation under this head is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.5,000/-** (20,000 - 15,000). 17. Towards medical expenses, the Tribunal has awarded a sum of Rs.30,397/- covered by Ext.A13 medical bill. In the absence of any further materials, the compensation awarded by the Tribunal under this head is just and reasonable, which requires no enhancement in this appeal. 18. Towards loss of earning the Tribunal awarded a sum of Rs.10,500/-, at the rate of Rs.3,500/- for a period of three months. 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 the appellant loss of earning for a period of ten months. Since the monthly income of the appellant is re-fixed as Rs.5,000/-, the compensation under the head loss of earning is re-fixed as Rs.50,000/- (5,000 x 10), resulting an additional compensation of Rs. **39,500/-** (50,000 - 10,500). 19. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/- and a further sum of Rs.2,250/- **MACA.No.148 OF 2015** 11 towards extra nourishment. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under the head transportation to hospital is re-fixed as Rs.2,500/-, resulting an additional compensation of Rs. **1,500/-** (2,500 - 1,000) and the compensation under the head extra nourishment is re-fixed as Rs.3,750/- (150 x 25) resulting an additional compensation of Rs. **1,500/-** (3,750 - 2,250). 20. Towards attendant charges (bystander expenses), the Tribunal has awarded a sum of Rs.2,550/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under this head is re-fixed as Rs.5,000/- (200 x 25), resulting an additional compensation of Rs. **2,450/-** (5,000 - 2,550). 21. 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)** **MACA.No.148 OF 2015** 12 **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. 22. 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. 23. In the instant case, as on the date of accident, the appellant was aged 23 years. In the light of the decisions of the **MACA.No.148 OF 2015** 13 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. 24. Towards compensation for disability, the Tribunal has awarded a sum of Rs.75,600/- (3,500 x 12 x 18 x 10/100). Since the monthly income of the appellant is re-fixed as Rs.5,000/-, the compensation under the head disability is re-fixed as Rs.1,08,000/- (5,000 x 12 x 18 x 10/100), resulting an additional compensation of **Rs.32,400/-** (1,08,000-75,600). 25. Towards loss of amenities, the Tribunal awarded Rs.9,000/-. Considering the nature of injuries sustained by the appellant and also the whole body disability of 10% assessed in Ext.X1, this Court deem it appropriate to re-fix the compensation under this head as Rs.10,000/-, resulting an additional compensation of **Rs.1,000/-** (10,000 - 9,000). In the result, the appellant/claimant will be entitled for payment of an enhanced compensation of Rs. **83,350/-** (Rupees eighty three thousand three hundred and fifty only) [5,000 + 39,500 + 1,500 + 1,500 + 2,450 + 32,400 + 1,000] in this appeal, which will carry interest at the rate of 8% per annum, **MACA.No.148 OF 2015** 14 from the date of petition till the date of 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 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. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** jv