Joseph @ Joyichan v. Angamuthu, Selva Ganapathy Traders and Oriental Insurance Company Ltd.

1 MACA 801 OF 2008 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **MACA.No.801 OF 2008** **AGAINST THE AWARD IN OPMV 1340/2000 DATED 20-03-2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT/S:** **JOSEPH @ JOYICHAN, S/O VARKEY ERESSERIL HOUSE, WARD NO.IV,, PUNNAPRA P.O., ALAPPUZHA.** **BY ADV. SRI.P.VIJAYARAGHAVAN** ## **RESPONDENT/S:** **1 P.ANGAMUTHU, S/O. PALANIMOOPAN 14-GUNDAR THOTTAM UNIT MUT,, KOLLAPPALUR P.O., TAMIL NADU.** **2 SELVA GANAPATHY TRADERS 162, MODACHUR ROAD,, GOBICHETTIPALAYAM, TAMIL NADU - 683 476.** **3 THE ORIENTAL INSURANCE COMPANY LTD. 59, RAJA STREET, GOBICHETTIPALAYAM,, TAMIL NADU - 638 476.** **R3 BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA 801 OF 2008 ## **JUDGMENT** **Dated this the 26th day of November 2019** The appellant is the claimant in O.P(MV)No.1340/2000 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 06.05.1999, while he was travelling in a tempo van bearing registration No.TN-41/Y-0320, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the tempo van hit on a lorry bearing registration No.TN60-07575. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of tempo van by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.7,00,000/under various heads. 3 MACA 801 OF 2008 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set exparte. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the vehicle involved in the accident; however, denying the negligence alleged against the 1[st] respondent driver. 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 A11 were marked on the side of the appellant/claimant. 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 driving of the tempo van by the 1[st] respondent driver. Since insurance coverage of the offending 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.60,450/- together with interest at the rate of 6% per annum from the date of petition i.e., 4 MACA 801 OF 2008 19.9.2000 till realisation. The insurer was directed to satisfy the award within 30 days from the date of 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 insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the respondents 1 and 2 was dispensed with, by the order of this Court dated 16.11.2019. 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 5 MACA 801 OF 2008 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. 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- 6 MACA 801 OF 2008 ## violation of the principle of equitability. ## 10. In the instant case, the compensation awarded by the ## Tribunal under various heads reads thus; |Loss of earnings|9,000/-| |---|---| |Cost of medicines and treatment<br>charges|7,700/-| |Bystander's expense|1,500/-| |Transportation to hospital|1,500/-| |Extra nourishment|500/-| |Damage to clothing|250/-| |Pain and sufferings|8,000/-| |Loss of amenities|2,000/-| |Permanent disability|27,000/-| |Future treatment|3,000/-| |Total|60,450/-| 11. The accident occurred on 06.05.1999. At the time of accident, the appellant was aged 44 years. The appellant claimed a monthly income of Rs 6,000/- from sale of chicken. 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. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** 7 MACA 801 OF 2008 **[(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 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 8 MACA 801 OF 2008 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 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. The accident occurred when the appellant was travelling in a tempo van, transporting chicken. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 1999 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 9 MACA 801 OF 2008 to re-fix the monthly income of the appellant notionally as Rs.2,500/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext A2 is the wound certificate and Ext A7 is the disability certificate. Ext A8 series are the OP tickets. The injuries sustained by the appellant, as borne out from Ext A2 wound certificate, are incised wound over the forehead 5x½cm, abrasion over lateral aspect of right eye, abrasion over the right nose, abrasion over the right shoulder, pain and swelling over right upper arm and fracture right humerus. He had undergone inpatient treatment at P.S.G Hospital, Coimbatore from 06.05.1999 and discharged on 01.06.1999. 16. Ext A6 series of OP tickets issued from the Medical College Hospital, Alappuzha would show that on 04.09.1999 internal fixation was done on the right hand of the appellant. Ext A9 series are the prescriptions issued by Dr.Muhammed Ashraf, at Medical College Hospital, Alappuzha and Ext A10 medical bill is for a sum of Rs 4,250/-. Ext A11 series of medical bills are for a sum of 10 MACA 801 OF 2008 Rs 3,430/-. 17. As per Ext A7 disability certificate issued by an individual doctor, the appellant is having a permanent disability of 30% on account of the injuries sustained in the accident. The Tribunal took the percentage of disability as 15%, for the purpose of assessing compensation under various heads. Ext A7 medical certificate was not proved by examining the doctor concerned. In Ext A7 it is stated that there was malunion of the fracture site and there was gross limitation of the movements of the right shoulder. The appellant is disabled to do his routine activities on account of fracture of his right upper limb. 18. The assessment of disability in Ext A7 was with implant in situ. Considering the nature of injuries sustained by the appellant and the disabilities noted in Ext A7 disability certificate, this court deem it appropriate to re-fix the percentage of the disability 17%, for the purpose of assessing compensation under various heads. 19. Towards loss of earnings, the Tribunal awarded a sum of Rs.9,000/-, at the rate of Rs.1,500/- for a period of 6 months. Considering the nature of injuries sustained and 11 MACA 801 OF 2008 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 just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.2,500/-, the compensation under the head loss of earning is re-fixed as Rs.15,000/- (2,500 x 6), resulting an additional compensation of **Rs.6,000/-** (15,000 – 9,000). 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 1999 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 under the head bystander expenses is re-fixed as Rs.3,750/- (150 x 25), resulting an additional compensation of **Rs** . **2,250/-** (3,750 –1,500). The compensation under the head extra nourishment is re-fixed as Rs.2,500/- (100 x 25), resulting an additional compensation of **Rs.2,000/-** (2,500 - 500). 12 MACA 801 OF 2008 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 1999, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 22. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,500/-. 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.2,000/-, resulting an additional compensation of **Rs.500/-** (2,000 – 1,500). 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.8,000/-. 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. 10,000/-, resulting an additional compensation of **Rs. 2,000/-** (10,000 - 8,000). 24. Towards loss of amenities the Tribunal 13 MACA 801 OF 2008 awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the permanent disability on account of those injuries, accepted in the appeal as 17%, the compensation awarded by the Tribunal under this head is re-fixed as Rs. 20,000/-, resulting an additional compensation of **Rs. 18,000/-** (20,000 – 2,000). 25. 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, 14 MACA 801 OF 2008 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. 26. 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. 27. In the instant case, as on the date of accident, the appellant was aged 44 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 15 applied by the Tribunal is not correct and the proper multiplier to be applied is **14.** 28. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on 15 MACA 801 OF 2008 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a notional monthly income of Rs.6,000/-, in the absence of any document on 16 MACA 801 OF 2008 record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact 17 MACA 801 OF 2008 that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into 18 MACA 801 OF 2008 consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 29. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi** **v. National Insurance Company Limited [(2012) 6 SCC 421]** , to injured persons having higher percentage of functional disability. 30. In view of the law laid down in the decisions referred to supra, addition of future prospects, while awarding disability compensation, can be made only in the case of injured person with a higher percentage of functional disability. Therefore, the appellant is not entitled for addition of future prospects, while granting compensation under the head permanent disability. 31. Towards compensation for permanent disability, the Tribunal awarded a sum of 27,000/- (1,500 x 12 x 15 19 MACA 801 OF 2008 x 15/100). Since the monthly income of the appellant is re-fixed notionally as Rs.2,500/-, applying the multiplier of 14 applicable to the age group of the appellant and the percentage of permanent disability as 17%, the compensation under the head permanent disability is refixed as Rs 71,400/- (2,500 x 12 x 14 x 17/100), resulting an additional compensation of **Rs.44,400/-** (71,400 – 27,000). 32. In the result, the appellant will be entitled for payment of an additional compensation of **Rs. 75,650/-** (Rupees seventy five thousand six hundred and fifty only) [6,000 + 2,250 + 2,000 + 500 + 500 + 2,000 + 18,000 + 44,400] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 476 days in filing this appeal which was condoned by order dated 16.11.2019 on condition that in case enhanced compensation is granted, the appellant shall not be entitled for interest on the said amount for the period of delay. The 3[rd ] respondent/insurer shall satisfy the additional compensation granted in this 20 MACA 801 OF 2008 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 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. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN** SKS **JUDGE**