Joseph N.D. @ Pappu & Others v. Sincy V. Jacob Velakkottu & Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 01ST DAY OF OCTOBER 2019 / 9TH ASWINA, 1941** ## **MACA.No.232 OF 2009** **AGAINST THE AWARD IN OP(MV)No.2015/2000 DATED 11-02-2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANTS:** - **1 JOSEPH N.D. @ PAPPU (DIED), S/O. DEVASIA, NEDIYANIYIL HOUSE, PAROLICKAL BHAGOM, THELLAKOM KARA, PEROOR, KOTTAYAM.** **2. ELIYAMMA JOSEPH, W/O JOSEPH N.D., AGED 70 YEARS, NEDIYANIYIL HOUSE, ATHIRAMPUZHA P.O, PEROOR, KOTTAYAM DISTRICT** **3. EBY JOSEPH, D/O JOSEPH N.D., AGED 46 YEARS, NEDIYANIYIL HOUSE, ATHIRAMPUZHA P.O, PEROOR, KOTTAYAM DISTRICT** **4. JOBY JOSEPH, S/O JOSEPH N.D., AGED 44 YEARS, NEDIYANIYIL HOUSE, ATHIRAMPUZHA P.O, PEROOR, KOTTAYAM DISTRICT** - **5 BIBY JOSEPH, D/O JOSEPH N.D., AGED 38 YEARS, NEDIYANIYIL HOUSE, ATHIRAMPUZHA P.O, PEROOR, KOTTAYAM DISTRICT** - **6 JIBY JOSEPH, S/O JOSEPH N.D., AGED 34 YEARS, NEDIYANIYIL HOUSE, ATHIRAMPUZHA P.O, PEROOR, KOTTAYAM DISTRICT (ADDITIONAL APPELLANTS 2 TO 6 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED APPELLANT AS PER ORDER DATED 15/3/19 IN IA 3/19 IN MACA 232/2009)** **BY ADVS. SRI.JOMY GEORGE SRI.LITHIN THOMAS** 2 MACA No.232 OF 2009 ## **RESPONDENTS:** - **1 SINCY V.JACOB VELLAKOTTU, PAMPADY, KOTTAYAM, (OWNER CUM DRIVER).** - **2 THE ORIENTAL INSURANCE CO. LTD. KOTTAYAM , POLICY NO.2000-2163.** ## **R1 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA No.232 OF 2009 ## **JUDGMENT** The original appellant was the claimant in O.P. (MV)No.2015 of 2000 on the file of the Motor Accident 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 04.06.2000, while he was riding a scooter bearing registration No.KRT-9710. At the place of accident, the scooter was hit by a car bearing registration No.KL-5/F-2381 owned and driven 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 driving of the car by the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent filed a written statement denying negligence alleged against him. The 1[st] respondent contended that the accident occurred due to the negligence of the original appellant/claimant in riding the scooter. 3. The 2[nd] respondent insurer filed a written statement 4 MACA No.232 OF 2009 admitting insurance coverage of the car involved in the accident; however, denying 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. 4. Before the Tribunal, Exts.A1 to A9(b) were marked on the side of the claimant and he was examined as PW1. One Parameswaran Thampi was examined as PW2. On the side of the respondents, Ext.B1 policy of insurance was marked. 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 driving of the car by the 1[st] respondent driver. 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.83,040/-, together with interest at the rate of 6% per annum from the date of petition till the date of deposit, with a cost of Rs.3,000/-, and directed the insurer to satisfy the award amount. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the original appellant/claimant 5 MACA No.232 OF 2009 approached this Court in this appeal. During the pendency of this appeal, the original appellant died and his legal heirs are impleaded as additional appellants 2 to 6, by the order dated 15.03.2019 in I.A.No.3 of 2019. 7. Heard the learned counsel for additional appellants 2 to 6 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 additional appellants are 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 6 MACA No.232 OF 2009 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; |SI.<br>No|Head of claim|Amount claimed<br>(in rupees)|Amount awarded<br>(in rupees)| |---|---|---|---| |1|Loss of earning from<br>04.06.2000 to 21.10.2000|22,500/-|Nil| |2|Partial loss of earnings|Nil|Nil| |3|Transport to hospital|8,000/-|1,500/-| |4|Extra nourishment|9,000/-|Nil| 7 MACA No.232 OF 2009 |5|Damage to clothing and<br>articles|3,000/-|Nil| |---|---|---|---| |6|Medicine, X-ray and<br>treatment|20,000/-|2,500/-| |7|Bystander|7,500/-|2,000/-| |8|Compensation for pain and<br>suffering|50,000/-|20,000/-| |9|Compensation for<br>continuing or permanent<br>disability, if any|2,00,000/-|47,040/-| |10|Compensation for loss of<br>earning power|2,50,000/-|Nil| |11|Loss of amenities|Nil|10,000/-| |**Total claim limited to Rs.5,00,000/-**|||**Rs.83,040/-**| 12. The accident occurred on 04.06.2000. At the time of accident, the claimant was aged 58 years. He claimed a monthly income of Rs.4,500/- as a commercial artist and also a pensioner receiving a monthly pension of Rs.1,400/-. Ext.A9 pencil sketches were produced in support of the claim. No materials were produced before the Tribunal to prove the monthly income of the claimant. 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.1,400/-, 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 8 MACA No.232 OF 2009 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. 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 9 MACA No.232 OF 2009 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. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2000, 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 claimant notionally as Rs.2,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A4 is the wound certificate and Ext.A6 is the discharge card. As per medical records, the claimant had traumatic amputation of left lower limb just below knee; crush injury left leg; extended bone 10 MACA No.232 OF 2009 injury to lower thigh; fracture on the 5[th] metatarsal (right); injury on the right leg; tenderness on the right eye braw; and abrasion on the right side of forehead. He had undergone inpatient treatment at Medical College Hospital, Kottayam for a period of 18 days. Though in the discharge summary and wound certificate, it is stated that amputation was below knee, in Ext.A7 disability certificate, it is noted that amputation was above knee. The claimant appeared before the Tribunal and the Tribunal noticed that amputation was above knee. In Ext.A7 disability certificate, the Medical Board assessed the permanent disability of the claimant, on account of the injuries sustained in the accident, as 60%. The Tribunal noticed that, as per McBride's Scale for amputation between hip and knee, the whole body disability taken is 35%. In the case of the claimant his monthly income towards pension is not affected in any manner by the disability noted in Ext.A7. Even assuming that the claimant is an artist, he can continue the art work inspite of amputation of lower limb. In Ext.A7 the Medical Board categorised the disability as moderate locomotor disability. Therefore, the Tribunal fixed the whole body disability as 35%, based on McBride's Scale, for the purpose 11 MACA No.232 OF 2009 of fixing compensation under the head permanent disability. 17. In **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343]** , the Apex Court laid down the principles governing assessment of future loss of earning due to permanent disability. The Apex Court held that where the claimant suffers a permanent disability as a result of the injuries, the assessment of compensation under the head loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What requires to be assessed by the Tribunal is the effect of permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependancy). 18. In **Raj Kumar's case** , the Apex Court held that, if the Tribunal concludes that there is permanent disability as a result of the injuries, then it will proceed to ascertain its 12 MACA No.232 OF 2009 extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood; or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on; or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. When compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the 13 MACA No.232 OF 2009 need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear or a token or nominal amount may have to be awarded under that head. 19. In the instant case, there is amputation of left lower limb of the claimant above knee. In Ext.A7 disability certificate, the Medical Board assessed his permanent disability, on account of the injuries sustained in the accident, as 60%. The Tribunal fixed the whole body disability as 35%, based on McBride's Scale, considering the fact that the claimant, who is an artist (drawing pencil sketches), can continue the art work in spite of amputation of lower limb. 20. Even if the claimant gets an artificial limb, he will have to suffer from various kinds of handicaps throughout his life. He may not be in a position to stand up for long intervals. Considering the aforesaid aspects of the matter, this Court finds that the percentage of permanent disability of the claimant on account of the injuries sustained in the accident can be taken as 45%, for the purpose of awarding compensation under the head permanent disability. 21. The Tribunal awarded no compensation under the 14 MACA No.232 OF 2009 head loss of earning. Considering the nature of injuries sustained and the treatment the appellant had undergone and also the amputation of his left lower limb above knee, this Court deem it appropriate to grant a sum of Rs.2,500/- under this head, for a period of 5 months. In the result, an amount of **Rs.12,500/-** (2,500 x 5) is granted as compensation towards loss of earning. 22. On account of the injuries sustained in the accident, the claimant had undergone inpatient treatment for 18 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,500/-. Considering the nature of injuries sustained and the treatment the claimant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 23. Towards bystander expenses the Tribunal awarded a sum of Rs.2,000/-. The Tribunal awarded no amount towards extra nourishment. The accident is of the year 2000 and the claimant had undergone inpatient treatment for 18 days. Considering the nature of injuries sustained and the treatment the claimant had undergone, as borne out from medical 15 MACA No.232 OF 2009 records, the compensation under the head bystander expenses is re-fixed as Rs.2,700/- (150 x 18), resulting an additional compensation of **Rs.700/-** (2,700 - 2,000). Under the head extra nourishment, a further sum of **Rs.1,800/-** (100 x 18) is granted. 24. Towards damage to clothing, the Tribunal awarded no compensation. Considering the fact that the accident is of the year 2000, this Court deem it appropriate to grant a sum of **Rs.750/-** under this head. 25. Towards medical expenses, the Tribunal awarded a sum of Rs.2,500/-, covered by Ext.A8 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. 26. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. Relying on the judgment of the Apex Court in **Govind Yadav v. New India Insurance Company Ltd. [(2011) 10 SCC 683]** , the learned counsel for the appellants would contend that the claimant is entitled for award of a sum of Rs.1,50,000/- 16 MACA No.232 OF 2009 towards pain and suffering. 27. In **Govind Yadav's case supra** , the Apex Court was dealing with the case of an unmarried person aged 24 years, who was working as helper. On account of the injuries sustained in the motor accident, his left leg was amputated above knee. Considering his age and also the fact that for the remaining life, he will suffer the trauma of not being able to do his normal work as helper, the Apex Court in order to meet the ends of justice, granted a sum of Rs.1,50,000/- in lieu of pain, suffering and trauma caused due to amputation of leg. 28. In the instant case, the claimant was an artist (drawing pencil sketches). After amputation of left lower limb above knee, the claimant can continue his art work, he will have to suffer from various kinds of handicaps, pain and suffering, even if he gets an artificial limb. Considering the nature of injuries, i.e., traumatic amputation of lower limb above knee, crush injury, etc, this Court deem it appropriate to re-fix the compensation under the head pain and suffering as Rs.70,000/-, resulting an additional compensation of **Rs.50,000/-** (70,000 - 20,000). 29. In **Sarla Verma v. Delhi Transport Corporation** 17 MACA No.232 OF 2009 **[(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. ## 30. 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 18 MACA No.232 OF 2009 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. 31. In the instant case, as on the date of accident, the appellant was aged 58 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 8 applied by the Tribunal is not correct and the proper multiplier to be applied is **15** . 32. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.47,040/- (1,400 x 12 x 8 x 35/100). Since the monthly income of the claimant is re-fixed notionally as Rs.2,500/-, applying the multiplier of 15 applicable to the age group of the claimant and the percentage of permanent disability as 45%, the compensation under the head permanent disability is re-fixed as Rs.2,02,500/- (2,500 x 12 x 15 x 45/100), resulting an additional compensation of **Rs.1,55,460/-** (2,02,500 - 47,040). 33. Towards loss of amenities, the Tribunal awarded a sum of Rs.10,000/-. Relying on the judgment of the Apex Court in **Govind Yadav [(2011) 10 SCC 683]** , the learned 19 MACA No.232 OF 2009 counsel for the appellants would contend that the claimant is entitled for award of a sum of Rs.1,50,000/- under the head loss of amenities and enjoyment of life. 34. In **Govind Yadav's case supra** , the Apex Court was dealing with the case of an unmarried person aged 24 years, who was working as helper. On account of the injuries sustained in the motor accident, his left leg was amputated above knee. The loss of earning on account of the permanent disability was taken as 70%. Considering his age and also the fact that his marriage prospects have considerably reduced on account of amputation of left lower limb above knee, the Apex Court granted a sum of Rs.1,50,000/- under the head loss of amenities and enjoyment of life. 35. In the instant case, considering the fact that the claimant is an artist (drawing pencil sketches), his permanent disability on account of amputation of left lower limb above knee, for the purpose of assessing disability compensation, is taken as 45%. He can continue the art work in spite of amputation of lower limb. At the time of accident, the claimant was a married person aged 58 years. Considering the above facts, this Court deem it appropriate to re-fix the 20 MACA No.232 OF 2009 compensation under the head loss of amenities as Rs.90,000/-, resulting an additional compensation of **Rs.80,000/-** (90,000 – 10,000). 36. In the result, the appellants 2 to 6 will be entitled for payment of an additional compensation of **Rs.3,01,210/-** (Rupees Three Lakhs One Thousand Two Hundred and Ten only) [12,500+ 700 + 1,800 + 750 + 50,000 + 1,55,460 + 80,000] 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 1703 days in filing this appeal, which was condoned by the order dated 11.06.2018 subject to the condition that the appellants will not be entitled to get interest for the period of delay. The additional compensation granted in this appeal shall be apportioned among appellants 2 to 5 in the ratio 40:15:15:15:15. 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 original appellant/claimant towards Balance Court Fee and Legal Benefit Fund. Disbursement of the amount to appellants 2 to 6 MACA No.232 OF 2009 21 shall be in terms of 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** **yd**