K. Leela v. The President, P.T.ASSOCIATION ST. VINCENT COLONY SCHOOL, Eranhipalam Post, Kozhikode; P. Gangadharan; New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941** **MACA.No.2499 OF 2013** **AGAINST THE AWARD IN OP(MV)NO.66/2011 DATED 26-03-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER :** **K.LEELA AGED 67 YEARS W/O.VELAYUDHAN, 1984 B1, PULLERIPARAMBA, KOZHIKODE673004, NOW RESIDING AT KAVUMTHODI HOUSE, CHALITHAZHAM, KAKKODI POST, KOZHIKODE-673611.** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH** ## **RESPONDENTS/RESPONDENTS:** **1 THE PRESIDENT, P.T.ASSOCIATION ST. VINCENT COLONY SCHOOL, ERANHIPALAM POST, KOZHIKODE-673006. 2 P.C.GANGADHARAN S/O. CHATUKUTTY KURUP, VADAKKECHEMBODY HOUSE, KAKKODI POST, KOZHIKODE-673611. 3 NEW INDIA ASSURANCE COMPANY LTD. SILVER PLAZA BUILDING, MAVOOR ROAD, KOZHIKODE DISTRICT, PIN-673001.** **R3 BY ADV. SRI.P.K.BABU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2499 OF 2013** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.66 of 2011 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 07.06.2010, while she was walking along the public road. At the place of accident, she was knocked down by a stage carriage bearing registration No.KL-13/B-4127 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of bus by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 filed written statement denying negligence on the part of the 2[nd] respondent. They pointed out that at the time of accident, the 2[nd] respondent was holding a valid driving licence and the vehicle was insured with the 3[rd] respondent. **MACA.No.2499 OF 2013** **3** 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the stage carriage involved in the accident; however, denying the negligence alleged against its driver. 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 A9 were marked on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary evidence. 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 driving of bus by the 2[nd] 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 **MACA.No.2499 OF 2013** **4** awarded a total compensation of Rs.1,08,697/-, together with interest at the rate of 8% per annum from the date of petition till date of deposit, 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 insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent owner 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 **MACA.No.2499 OF 2013** **5** 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 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 **MACA.No.2499 OF 2013** **6** 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; ||The<br>compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earnings|24,000/-|10,000/-|2500x4 months| |2|Transport to hospital|5,000/-|500/-|| |3|Extra nourishment|5,000/-|500/-|| |4|Damage to clothings<br>and other articles|1,000/-|500/-|| |5|Bystanders expenses|Nil|10,800/-|200x54 days| |6|Treatment expenses|75,000/-|3,897/-|A9 series| |7|Pain and suffering|20,000/-|20,000/-|| |8|Loss of future earning<br>power|10,000/-|52,500/-|2500x12x7x25/100| |9|Physical disability|35,000/-|10,000/-|| ||||1,08,697/-|| 12. The accident occurred on 07.06.2010. At the time of accident, the appellant was aged 65 years. The appellant claimed a monthly income of Rs.4,000/- as housemaid. The appellant has not chosen to mount the box to prove her monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,500/-, for the purpose of assessing compensation under **MACA.No.2499 OF 2013** **7** 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 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 **MACA.No.2499 OF 2013** **8** 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 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 2010, and taking note of the fixation of notional monthly income by the Apex Court in the **MACA.No.2499 OF 2013** **9** decisions referred to supra, the monthly income of Rs.4,000/- claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound certificate and Ext.A6 is the discharge card issued from Baby Memorial Hospital, Kozhikide. As per the medical records, in the accident, the appellant sustained crush injury on right foot and leg, fracture calcaneum talus, navicular cuboid, lateral cuneiform, base and shaft of 4[th] and 5[th] metatarsal and 3[rd] metatarsophalangeal joint dislocation, fracture head of 2[nd] metatarsal heel and pad avulsion right. The appellant had undergone inpatient treatment for a period of 54 days. 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 25%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. **MACA.No.2499 OF 2013** **10** 18. Towards loss of earning, the Tribunal awarded a sum of Rs.10,000/-, at the rate of Rs.2,500/- 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.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.24,000/- (4,000 x 6), resulting an additional compensation of **Rs.14,000/-** . (24,000 – 10,000) 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 54 days. The accident is of the year 2010. Towards transportation to hospital, the Tribunal awarded a sum of Rs.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.3,000/-, resulting an additional compensation of **Rs. 2,500/-** (3,000 - 500). **MACA.No.2499 OF 2013** **11** 20. Towards bystander expenses the Tribunal awarded a sum of Rs.10,800/- (200 x 54). Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2010 and the appellant had undergone inpatient treatment for 54 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 represents just and reasonable compensation, which requires no interference in this appeal. The compensation under the head extra nourishment is re-fixed as Rs.8,100/(150 x 54), resulting an additional compensation of **Rs.7,600/-** (8,100 - 500). 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2010, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.3,897/-, covered by Ext.A9 series of medical **MACA.No.2499 OF 2013** **12** 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. 23. 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 an additional compensation of **Rs.5,000/-** (25,000 – 20,000). 24. 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 **MACA.No.2499 OF 2013** **13** [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 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 65 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 **7** applied by **MACA.No.2499 OF 2013** **14** the Tribunal is correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.52,500/- (2,500 x 12 x 7 x 25/100). Since the monthly income of the appellant is refixed notionally as Rs.4,000/-, applying the multiplier of 7 applicable to the age group of the appellant and the percentage of permanent disability as 25%, the compensation under the head permanent disability is refixed as Rs.84,000/- (4,000 x 12 x 7 x 25/100), resulting an additional compensation of **Rs.31,500/-** (84,000 – 52,500). 28. No amount has been awarded by the Tribunal towards the head loss of amenities. However, a sum of Rs.10,000/- has been awarded towards physical disability. Considering the nature of injuries sustained by the appellant and 25% permanent disability on account of those injuries, as assessed in Ext.C1 disability certificate, this Court deem it appropriate to grant a sum of Rs.25,000/- under the head loss of amenities. Deducting Rs.10,000/- awarded by the Tribunal under the head physical disability, the appellant is entitled for an additional compensation of **Rs.15,000/-** **MACA.No.2499 OF 2013** **15** (25,000 – 10,000) under this head. 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.76,100/-** (Rupees Seventy six thousand and one hundred only) [14,000 + 2,500 + 7,600 + 500 + 5,000 + 31,500 + 15,000] 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. The disbursement of additional 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 her Bank account details (attested copy of the relevant page of the Bank Passbook having details of the **MACA.No.2499 OF 2013** **16** 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** AV/28/1