Johnson Ipe v. Jayaprakash and Anshida M S/o K.M.Abdul Majeed and The Divisional Manager, National Insurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ``` WEDNESDAY, THE 2[ND] DAY OF AUGUST 2023 / 11TH SRAVANA, 1945 ``` ## **`MACA NO.1639 OF 2014`** ``` AGAINST THE AWARD DATED 18.01.2014 IN OP(MV)NO.156 OF 2011 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM ``` ## **`APPELLANT/CLAIMANT:`** ## **`JOHNSON IPE`** ``` S/O.IPE, IRUPATHIL HOUSE, KAKKOOR P.O, NATTAKAM VILLAGE, KOTTAYAM DISTRICT. ``` ``` BY ADVS. SRI.P.M.JOSHI SMT.SIJI K.PAUL ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 JAYAPRAKASH S/O.PONNAPPAN, ATTICHIRA HOUSE, ATTICHIRA BHAGAM, PERUNNA KIZHAKKU, CHANGANASSERY P.O, KOTTAYAM PIN 686 101.`** - **`2 ANSHIDA M S/O.K.M.ABDUL MAJEED, PUTHUPARAMBIL HOUSE, THRIKODITHANAM P.O CHANGANASSERY, PIN 686 105.`** - **`3 THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD, KOTTAYAM BRANCH, KOTTAYAM 686 001. BY ADVS. SRI.RAJAN P.KALIYATH SRI.RAJAN P.KALIYATH`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1639 of 2014 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.156 of 2011 on the file of the Motor Accidents Claims Tribunal, Kottayam, 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 09.11.2010, while he was standing on the eastern footpath of MC Road near NSS College, Changanassery. At the place of the accident, he was knocked down by a motorcycle bearing registration No.KL-33/4717, ridden by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the claimant sustained injuries. He was taken to the Government Hospital, Changanassery, from where he was referred to the Medical College Hospital, Kottayam, where he underwent inpatient treatment from 09.11.2010 to 14.11.2010. Alleging that the accident occurred due to the rash and negligent driving of the motorcycle by the 1[st] respondent rider, a claim petition was filed before the Tribunal claiming a total compensation of Rs.4,75,500/- under various heads, which was limited to Rs.3,00,000/- for the purpose of payment of court fee. 2. Before the Tribunal, the 1[st] respondent rider and the 2[nd] respondent owner of the motorcycle remained absent and they were set _ex parte_ . The 3[rd] respondent insurer filed a written M.A.C.A.No.1639 of 2014 3 statement admitting the policy coverage of the motorcycle involved in the accident; however, alleging negligence on the part of the claimant. The age, occupation, monthly income, etc., stated in the claim petition were denied by the insurer and it was contended that the compensation claimed was highly excessive. 3. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellant-claimant. The document marked as Ext.X1 is the disability certificate issued by the Medical Board at Medical College Hospital, Kottayam in which the permanent disability of the appellant on account of the injury sustained in the accident is assessed as 21.82%. Both sides have not chosen to adduce any oral evidence. 4. After considering the pleadings and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motorcycle by the 1[st] respondent rider. Since insurance coverage of the said vehicle was 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.3,22,288/-, which was limited to Rs.3,00,000/- together with interest at the rate of 8.5% per annum from the date of petition till the date of realisation, with proportionate cost and the 3[rd] respondent insurer was directed to M.A.C.A.No.1639 of 2014 4 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. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 is dispensed with. 7. The issue that arises for consideration in this appeal is as to whether the appellant-claimant is entitled to 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 M.A.C.A.No.1639 of 2014 5 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; |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)|Basis-with<br>details<br>in<br>a<br>nutshell| |---|---|---|---|---| |1|Loss of earnings|Rs.48,000/-|Rs.45,000/-|5,000x9| |2|Partial loss of earnings|Rs.8,000/-|Nil|Loss of earnings<br>allowed| |3|Transport to hospital|Rs.5,000/-|Rs.12,000/-|Admissible bills<br>(Ext.A10)| |4|Extra nourishment|Rs.2,000/-|Rs.1,000/-|Nominal amount| |5|Damage to clothing and<br>articles|Rs.500/-|Rs.500|Nominal amount| |6|Bystander expenses|Rs.12,000/-|Rs.12,000/-|In view of the| M.A.C.A.No.1639 of 2014 6 |||||inpatient<br>treatment and<br>nature of the<br>injuries| |---|---|---|---|---| |7|Medical expenses|Rs.1,00,000/-|Rs.33,500/-|Admissible bills<br>(Ext.A10)| |8|Pain and sufferings|Rs.50,000/-|Rs.20,000/-|In view of the<br>nature of the<br>injuries| |9|Loss of amenities|Rs.50,000/-|Rs.15,000/-|..do...| |10|Loss of earning capacity|Rs.50,000/-|Rs.1,83,288/-|Taking the<br>multiplier as 14<br>and loss of<br>earning power as<br>21.82%| |11|Continuing permanent<br>disability|Rs.1,50,000/-|Nil|Compensation<br>for loss of<br>earning capacity<br>allowed| ||Total|Rs.4,75,500/-<br>limited to<br>Rs.3,00,000/-|Rs.3,22,288/-<br>limited to<br>Rs.3,00,000/-|…......| 11. The accident occurred on 09.11.2010. At the time of the accident, the appellant was aged 42 years. The appellant claimed a monthly income of Rs.8,000/- as a driver. The appellant has produced Ext.A11 salary certificate to show that he was working as a driver in Josh Rubbers. The said document was not proved before the Tribunal. The driving licence of the appellant was also not produced before the Tribunal. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.5,000/-, 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 M.A.C.A.No.1639 of 2014 7 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. ## 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 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 M.A.C.A.No.1639 of 2014 8 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 2010, 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.7,500/-** , for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A3 is the wound certificate and Ext.A5 is the discharge card. As per medical records, the appellant sustained fracture of both bones on the upper third of the right leg and he underwent inpatient treatment from 09.11.2010 to 14.11.2010. Exts.A6 to A9 discharge summaries would show that the appellant, who was discharged on 14.11.2010, was again admitted in the hospital from 15.12.2010 to 23.12.2010 and from 04.04.2011 to 06.04.2011. Ext.A6 M.A.C.A.No.1639 of 2014 9 discharge summary would show that he had undergone inpatient treatment from 20.11.2010 to 30.11.2010 and during that period, there was external fixation consequent to the fracture of both bones of the upper third of the right leg. As per Ext.A8 discharge summary, he had undergone inpatient treatment from 04.04.2011 to 06.04.2011. During that period, he underwent bone grafting. The appellant had undergone inpatient treatment for a total period of 25 days. Ext.A10 series of medical bills are for a sum of Rs.45,592/-. 16. In Ext.X1 disability certificate issued by the Medical Board at Medical College Hospital, Kottayam, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 21.82%. The Tribunal accepted the percentage of permeant disability assessed in Ext.X1 disability certificate for the purpose of awarding compensation under various heads. 17. Towards loss of earnings, the Tribunal awarded a sum of Rs.45,000/-, at the rate of Rs.5,000/- for a period of 9 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 9 months fixed by the Tribunal for granting loss of earnings is just and reasonable. Since the monthly income of the M.A.C.A.No.1639 of 2014 10 appellant is re-fixed notionally as Rs.7,500/-, the compensation under the head loss of earning is re-fixed as Rs.67,500/- (7,500 x 9), resulting in an additional compensation of **Rs.22,500/-** (67,500 – 45,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 25 days. The accident is of the year 2010. Towards transportation to the 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 granted under this head represents just and reasonable. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.12,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2010 and the appellant had undergone inpatient treatment for 25 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 the head bystander expenses represents just and reasonable compensation, which requires no enhancement in this appeal. However, the compensation under the head extra nourishment is M.A.C.A.No.1639 of 2014 11 re-fixed as Rs.2,500/- (100 x 25), resulting in an additional compensation of **Rs.1,500/-** (2,500 - 1,000). 20. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2010, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards medical expenses, the Tribunal awarded a sum of Rs.33,500/-, covered by Ext.A10 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 the head pain and suffering is re-fixed as Rs.25,000/-, resulting in an additional compensation of **Rs.5,000/-** (25,000 - 20,000). 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.** M.A.C.A.No.1639 of 2014 12 **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. 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. M.A.C.A.No.1639 of 2014 13 25. In the instant case, as on the date of accident, the appellant was aged 42 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 14 applied by the Tribunal is correct and proper. 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,83,288/- (5,000 x 12 x 14 x 21.82/100). Since the monthly income of the appellant is re-fixed notionally as Rs.7,500/-, applying the multiplier of 14 applicable to the age group of the appellant and the percentage of permanent disability as 21.82%, the compensation under the head permanent disability is re-fixed as Rs.2,74,932/- (7,500 x 12 x 14 x 21.82/100), resulting in an additional compensation of **Rs.91,644/-** (2,74,932 – 1,83,288). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. The permanent disability of the appellant, on account of the injuries sustained in the accident, is taken as 21.82%. Considering the nature of injuries sustained and the permanent disability on account of those injuries, the compensation awarded by the Tribunal under this head is re-fixed as Rs.22,000/-, resulting in an additional compensation of M.A.C.A.No.1639 of 2014 14 ## **Rs.7,000/-** (22,000 - 15,000). 28. Though the Tribunal fixed the total compensation as Rs.3,22,288/-, the total compensation was limited to Rs.3,00,000/-, since, in the claim petition, for the purpose of payment of court fee, the appellant-claimant limited the total compensation to Rs.3,00,000/-. 29. In **Sreekumar v. Divisional Manager, National Insurance Co. Ltd., Kollam [2022 (3) KHC 467]** a Division Bench of this Court held that the assessment of compensation under different heads is done for the purpose of granting just compensation. Hence, once it is found that the compensation to which the claimant is legally entitled, be it under any particular head or aggregate, is more than what is claimed, its denial would ' ' result in denial of just compensation . Therefore, once it is found that the claimant had suffered a legal grievance by the award passed by the Claims Tribunal under Section 168 of the Motor Vehicles Act, whereby he is deprived of 'just compensation' to which he was legally entitled to under any particular head, he can be considered as a 'person aggrieved' to prefer an appeal in terms of Section 173 of the said Act for seeking enhancement of the compensation awarded by the Tribunal. Such legal grievance can be with reference to the adoption of wrong multiplier; improper M.A.C.A.No.1639 of 2014 15 deduction towards personal and living expenses; improper assessment of percentage of functional disability; improper addition of future prospects; denial of 'just compensation' under the conventional heads like, loss of estate, loss of consortium, funeral expenses, etc., in terms of the law laid down by the Apex Court in **National Insurance Company Limited v. Pranay Sethi [(2017) 16 SCC 680]** . 30. In view of the law laid down by this Court in **Sreekumar [2022 (3) KHC 467]** the appellant-claimant is entitled to payment of **Rs.22,288/-** out of Rs.3,22,288/- fixed by the Tribunal towards the total compensation, with interest. 31. In the result, the appellant-claimant will be entitled to payment of an additional compensation of **Rs.1,49,932/-** (Rupees one lakh forty nine thousand nine hundred and thirty two only) [22,500 + 1,500 + 5,000 + 91,644 + 7,000 + 22,288] 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 three 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 M.A.C.A.No.1639 of 2014 16 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 Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall provide his Bank account details before the Tribunal, with copy to the learned Standing Counsel for KSRTC, 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. Sd/- **ANIL K. NARENDRAN JUDGE** yd