Jyothis.T.J v I.A.Lahir, Wilson, United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** ## **MACA.No.2933 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.1785/2004 DATED 24-04-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER:** **JYOTHIS.T.J, S/O.T.K.JOHNY** **THOMMANA HOUSE,THAZHEKKAD DESOM AND VILLAGE,, KALLETTUMKARA P.O.,MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.BABY** ## **RESPONDENTS/RESPONDENTS:** - **1 I.A.LAHIR, S/O.THOTTUPARAMBATH ALIKUNJU, CHALINGAD,KODUNGALLUR.** - **2 WILSON, S/O.KOCHAPPU CHATHELI HOUSE,THAZHEKKAD P.O.** - **3 UNITED INDIA INSURANCE CO.LTD. TANA,IRINJALAKUDA.** ## **R3 BY SMT.P.A.REZIYA, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2933 OF 2009** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1785 of 2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda, 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 09.07.2004, while he was riding a motorcycle bearing registration No.KL-8/T-6495. At the place of accident, the motorcycle was hit by an autorickshaw bearing registration No.KL-8/B-5817, 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 autorickshaw by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/-, under various heads 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. 3. The 3[rd] respondent insurer filed written statement **MACA.No.2933 OF 2009** **3** admitting insurance coverage of the autorickshaw involved in the accident. It was contended that the 2[nd] respondent driver was not having a valid driving licence and badge at the time of accident. 4. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. Both sides have not chosen to adduce any oral evidence. 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 offending autorickshaw by the 2[nd] respondent driver. The Tribunal rejected the contention of the 3[rd] respondent insurer that the 2[nd] respondent driver was not holding a valid driving licence to drive the autorickshaw. Since insurance coverage of the offending 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.1,50,100, together with **MACA.No.2933 OF 2009** **4** interest at the rate of 7% per annum from the date of petition till realisation, with proportionate cost and the 3[rd] respondent insurer was directed to satisfy the 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 3[rd] respondent/insurer. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 2[nd] respondent is dispensed with. 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 **MACA.No.2933 OF 2009** **5** 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 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 **MACA.No.2933 OF 2009** **6** 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; |Head|Amount awarded<br>(in rupees)| |---|---| |Medical expenses|65,200/- (A6 series of<br>bills and vouchers| |Hospitalisation|1,300/-| |Transportation|1,000/-| |Pain and suffering|25,000/-| |Discomfort and loss of<br>amenities|15,000/-| |Disability compensation|30,600/-<br>(2,500x12x17x6/100)| |Crown struct - six teeth|12,000/-| |**Total**|**1,50,100/-**| 12. The accident occurred on 09.07.2004. At the time of accident, the appellant was a 5[th] Semester B.Tech student aged 22 years. The Tribunal fixed the monthly income of the appellant notionally as Rs.2,500/- for the purpose of awarding compensation under various heads. 13. In **National Insurance Company Ltd. v. Fathimath Zuhara [2016 (3) KLT 459],** in respect of a motor accident, which occurred on 10.05.2005, involving **MACA.No.2933 OF 2009** **7** the death of six Engineering students of LBS College of Engineering, Kasaragode, who were aged 19 years, a Division Bench of this Court accepted the fixation of notional monthly income by the Tribunal at Rs.12,000/-. Therefore, following the said decision, this Court deem it appropriate to fix the notional monthly income of the appellant herein as Rs.12,000/-, for the purpose of awarding compensation under various heads. 14. The document marked as Ext.A3 is the wound certificate and Ext.A4 is the discharge certificate. As per Ext.A3 wound certificate issued from Elite Mission Hospital, the appellant sustained fracture of nasal bone, fracture of right maxila, fracture of right zygoma, fracture of right infra orbital margin, comminuted fracture of the maxillary sinus wall and also crown fracture of six teeth in the upper jaw. Ext.A4 discharge summary would show that the appellant had undergone inpatient treatment for a period of 13 days. Ext.A5 prescriptions would show that the appellant had continued further treatment after discharge. 15. In Ext.A6 disability certificate, the permanent **MACA.No.2933 OF 2009** **8** disability of the appellant, on account of the injuries sustained in the accident, is assessed at 6%. The appellant was personally present before the Tribunal and the Tribunal noticed that his face was somewhat ill shaped, one eye was not exactly in the line of other eye, with some sort of deviation and there was a mark on nose. The nose was also somewhat flat due to the fracture, the teeth were seen displaced and the appellant will find it very difficult to chew food articles. The Tribunal accepted the percentage of permanent disability assessed in Ext.A6 certificate, for the purpose of awarding compensation under various heads. 16. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 13 days. 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.2,000/-, resulting an additional compensation of **Rs.1,000/-** (2,000 – 1,000). **MACA.No.2933 OF 2009** **9** 17. Towards hospitalisation, the Tribunal awarded a sum of Rs.1,300/-. The accident is of the year 2004 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, this Court deem it appropriate to grant a sum of Rs.1,950/- (150 x 13) under the head bystander's expenses and a further sum of Rs.1,300/- (13 x 100) under the head extra nourishment. After deducting Rs.1,300/- awarded by the Tribunal towards hospitalisation expenses, the appellant is granted an additional compensation of **Rs.1,950/-** [(1,950 + 1,300) – 1,300] under these heads. 18. No amount has been awarded by the Tribunal towards damage to clothing. Considering the fact that the accident is of the year 2004, this Court deem it appropriate to grant a sum of **Rs.750/-** , as compensation under this head. 19. Towards medical expenses, the Tribunal awarded a sum of Rs.65,200/-, covered by Ext.A7 series of medical **MACA.No.2933 OF 2009** **10** 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. 20. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. 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 this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 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) 10 SCC 720]** held that the multiplier to be used should be as mentioned **MACA.No.2933 OF 2009** **11** 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 22 years. In the light of the **MACA.No.2933 OF 2009** **12** decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the multiplier of 17 applied by the Tribunal is not correct and and the proper multiplier to be applied is **18** . 24. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.30,600/(2,500 x 12 x 17 x 6/100). Since the monthly income of the appellant is re-fixed notionally as Rs.12,000/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 6%, the compensation under the head permanent disability is re-fixed as Rs.1,55,520/- (12,000 x 12 x 18 x 6/100), resulting an additional compensation of **Rs.1,24,920/-** ( 1,55,520 – 30,600). 25. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. In Ext.A6 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident is assessed as 6%. Considering the nature of injuries sustained and the permanent disability that has been **MACA.No.2933 OF 2009** **13** certified in Ext.A6 disability certificate, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 26. The appellant was personally present before the Tribunal. In paragraph 7 of the award, the Tribunal noticed that his face was somewhat ill shaped, one eye was not exactly in the line of other eye, with some sort of deviation and there was a mark on nose. The nose was also somewhat flat due to the fracture, the teeth were seen displaced and the appellant will find it very difficult to chew food articles. Considering the disfiguration and disabilities noticed by the Tribunal, the appellant is granted a sum of **Rs.10,000/-** as compensation for disfiguration and a further sum of **Rs.10,000/-** towards loss of marriage prospects. 27. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,48,620/-** (Rupees One lakh forty eight thousand six hundred and twenty only) [1,000 + 1,950 + 750 + **MACA.No.2933 OF 2009** **14** 1,24,920 + 10,000 + 10,000 ] 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 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 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/28/11