Johnson v. Santosh and The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** **MACA.No.2208 OF 2008** **AGAINST THE AWARD IN O.P.(MV) NO.560/2002 DATED 25-05-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/CLAIM APPLICANT:** **JOHNSON, S/O.ANTONY, VANSWARGA VELI, WARD NO. IX, CHERTHALA SOUTH PANCHAYATH.** **BY ADV. SRI.R.AZAD BABU** ## **RESPONDENTS/RESPONDENTS:** **1 SANTHOSH, S/O.VIKRAMAN NAIR, KIZHAKKEVELIYIL, WARD NO. XIII, MANNANCHERRY PANCHAYATH, MANNANCHERRY P.O. 2 THE ORIENTAL INSURANCE COMPANY LTD., MULLACKAL, ALAPPUZHA.** **R2 BY ADV. P.V.JYOTHI PRASAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2208 of 2008 -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.560 of 2002 on the file of the Motor Accidents Claims Tribunal, Alappuzha, 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 06.05.2001, while he was peddling a bicycle. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL-7/F-674 owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,12,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set ex-parte. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the motorcycle involved in the accident; however, denying negligence alleged against the 1[st] MACA No.2208 of 2008 -3- respondent rider. The insurer contended that the accident occurred due to the negligence of the appellant/claimant. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A4 were marked on the side of the appellant/claimant. The document marked as Ext.C1 is the disability certificate issued by the Medical Board assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident. 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 riding of motorcycle by the 1[st] respondent rider. Since insurance coverage of the said vehicle was not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.55,000/-, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 30.04.2002 till realisation with a cost of Rs.550/and the 2[nd] respondent insurer was directed to satisfy the MACA No.2208 of 2008 -4- 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. 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 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 MACA No.2208 of 2008 -5- 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 ## the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount awarded<br>(in rupees)| |---|---|---| |1|Compensation for loss of earning|Rs. 6,000/-| |2|Cost of medicine and treatment<br>expenses|Rs. 1,250/-| |3|Transportation charge|Rs. 1,000/-| |4|Bystander expenses|Rs. 1,500/-| MACA No.2208 of 2008 -6- |5|Extra nourishment|Rs. 500/-| |---|---|---| |6|Damage to clothing|Rs. 350/-| |7|Compensation for pain and<br>suffering|Rs. 10,000/-| |8|Compensation for permanent<br>disability and loss of earning<br>power|Rs. 32,400/-| |9|Compensation<br>for<br>loss<br>of<br>amenities|Rs. 2,000/-| ||**Total**|**Rs.** **55,000/-**| 12. The accident occurred on 06.05.2001. At the time of accident, the appellant was aged 28 years. He claimed a monthly income of Rs.4,000/- as a coir mat weaver. 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 income notionally as Rs.1,500/-, 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 MACA No.2208 of 2008 -7- 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)** , 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 MACA No.2208 of 2008 -8- 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 2001, 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.3,000/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A3 is the wound certificate and Ext.A4 is the discharge card. As per medical records, in the accident, the appellant sustained pain and tenderness with deformity at the left hip region, compound fracture proximal phalanx of right middle finger, inter MACA No.2208 of 2008 -9- trochanteric fracture of left femur and abrasion 1 cm in the front of right knee joint. He had undergone inpatient treatment for a period of 13 days. As evident from Ext.A4 discharge card, the appellant was treated by skin traction. 17. In Ext.C1 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 10%. The Tribunal accepted the 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.6,000/-, at the rate of Rs.1,500/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 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 compensation of **Rs.12,000/-** (18,000 - 6,000). MACA No.2208 of 2008 -10- 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 13 days. The accident is of the year 2001. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.2,500/-, resulting an additional compensation of **Rs.1,500/-** (2,500 - 1,000). 20. Towards bystander expenses the Tribunal awarded a sum of Rs.1,500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2001 and the appellant had undergone inpatient treatment for 13 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.1,950/- (150 x 13), resulting an additional compensation of **Rs.450/-** (1,950 - 1,500). The compensation under the head extra nourishment is re-fixed as Rs.1,300/- (100 x 13), resulting an additional compensation of MACA No.2208 of 2008 -11- ## **Rs.800/-** (1,300 - 500). 21. Towards damage to clothing, the Tribunal awarded a sum of Rs.350/-. Considering the fact that the accident is of the year 2001, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.400/-** (750 - 350). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.1,250/-. In the absence of any medical bills, 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.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 the head pain and suffering is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.10,000/-** (20,000 - 10,000) under this head. 24. In **Sarla Verma v. Delhi Transport Corporation** MACA No.2208 of 2008 -12- **[(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. 25. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex MACA No.2208 of 2008 -13- 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 28 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 not correct and the proper multiplier to be applied is **17** . 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.32,400/- (1,500 x 12 x 18 x 10/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,000/-, applying the multiplier of 17 applicable to the age group of the appellant and the percentage of permanent disability as 10%, the compensation under the head permanent disability is re-fixed as Rs.61,200/- (3,000 x 12 x 17 x 10/100), resulting an additional compensation of **Rs.28,800/-** (61,200 - 32,400). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.2,000/-. In Ext.C1 disability certificate the MACA No.2208 of 2008 -14- permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. Considering the nature of injuries sustained and 10% permanent disability on account of those injuries, as assessed in Ext.C1 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.8,000/-** (10,000 - 2,000). 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.61,950/-** (Rupees sixty one thousand nine hundred and fifty only) [12,000 + 1,500 + 450 + 800 + 400 + 10,000 + 28,800 + 8,000] 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 additional compensation to the appellant/claimant shall be made taking note of the law on the MACA No.2208 of 2008 -15- 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 (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, 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** bpr