K. Saneesh Babu v. Niyas, Muhammed Aslam and Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** ## **MACA.No.158 OF 2011** **AGAINST THE AWARD IN OP(MV)NO.1675/2007 DATED 20-04-2010 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER :** **K.SANEESH BABU, S/O.RAMADASAN, KADANTHATTIL HOUSE,KARADUPARAMBA.P.O, VIA.FAROOK COLLEGE,MALAPPURAM DISTRICT.** **BY ADVS.** **SRI.THOMAS ANTONY SRI.VINO JOSE** ## **RESPONDENTS/RESPONDENTS 1 TO 3:** - **1 NIYAS, S/O.MUHAMMED KUTTY, ODUKKAMPURATH HOUSE, CHELOOPPADAM,PULLIPARAMBA,CHELAMBRA, MALAPPURAM DISTRICT,(OWNER OF MOTOR CYCLE KL-10-W-2177).** - **2 MUHAMMED ASLAM** - **S/O.AHAMMED,EDAYAPURATH HOUSE,P.O.FAROOK** **COLLEGE,CALICUT – 673 572(DRIVER OF MOTORCYCLE KL-10W-2177).** - **3 ORIENTAL INSURANCE COMPANY LTD.** - **DIVISIONAL OFFICE,PRAMOD BUILDING,CHEROOTTY ROAD,KOZHIKODE-673121(INSURER OF MOTOR CYCLE KL-10-W2177)** **R3 BY ADV. P.JACOB MATHEW R3 BY ADV. SRI.MATHEWS JACOB (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-02-2020, THE COURT ON 17-02-2020 DELIVERED THE FOLLOWING:** **MACA.No.158 OF 2011** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1675 of 2007 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 him in a motor accident, which occurred on 21.08.2006, while he was pedalling a bicycle. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL10/W-2177 owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/under various heads. 2. Before the Tribunal, respondents 1 and 2 did not appear. 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the motorcycle **MACA.No.158 OF 2011** **3** involved in the accident; however, denying the negligence alleged against its rider. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. They also disputed the liability to pay compensation. 4. Before the Tribunal, Exts.A1 to A10 were marked on the side of the appellant/claimant. The disability certificate issued by the Medical Board was marked as Ext.C1 and the case records were marked as Ext.X1 series. 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 the motorcycle by its rider. 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.2,04,733/-, together with interest at the rate of 7% per annum from 01.03.2008 till date of deposit, with proportionate cost, and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation **MACA.No.158 OF 2011** **4** 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 not in dispute, service of notice on respondents 1 and 2 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 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 **MACA.No.158 OF 2011** **5** 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 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; **MACA.No.158 OF 2011** **6** ||Head of claim|Amount<br>claimed|Amount<br>allowed|Details| |---|---|---|---|---| |1|Transport to hospital|5,000/-|500/-|| |2|Extra nourishment|2,000/-|300/-|| |3|Loss of earnings|10,000/-|Nil|| |4|Bystanders Expenses|3,000/-|800/-|100 x 8 days| |5|Treatment expenses|10,000/-|31,133/-|59758-28625| |6|Pain and sufferings|25,000/-|10,000/-|| |7|Compensation<br>for<br>permanent disability|2,00,000/-|1,62,000/-|1500x18x60/100| ||Total||2,04,733/-|| 12. The accident occurred on 21.08.2006. At the time of accident, the appellant was aged 18 years. The appellant claimed a daily wage of Rs.150/- as coolie (manual labourer). The appellant has not chosen to mount the box to prove his monthly income. In the absence of any reliable materials, the Tribunal fixed the annual income of the appellant notionally as Rs.15,000/-, 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, **MACA.No.158 OF 2011** **7** 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 **MACA.No.158 OF 2011** **8** 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 2006, 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.3,900/- (150 x 26), for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is a copy of the wound certificate; Ext.A3 is the reference card; Ext.A4 is **MACA.No.158 OF 2011** **9** the CT scan reports; Ext.A5 is the treatment certificate; Ext.A6 is the case sheet from dental college and Ext.A7 is the OP records. As per the medical records, in the accident, the appellant sustained fracture left frontal bone, diffuse brain odeama, hemorrhagic contusion, left frontal region, sinus fracture and orbital left vein fracture. Ext.A2 wound certificate showed lacerated wound below left eyebrow and the CT scan report confirmed head injury. Ext.A10 series are the medical bills for a sum of Rs.59,758/-. 17. In Ext.C1 disability certificate, the Medical Board at Medical College Hospital, Calicut assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 60%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 18. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11[th] Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She **MACA.No.158 OF 2011** **10** 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 record, as she was a **MACA.No.158 OF 2011** **11** 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 **MACA.No.158 OF 2011** **12** the undisputed fact 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 **MACA.No.158 OF 2011** **13** for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi** **v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 19. 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. 20. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, the determination of 'just compensation' has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in **Sarla Verma [(2009) 6 SCC 121]** and it has **MACA.No.158 OF 2011** **14** been approved in **Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65]** . The age and income, as stated earlier, have to be established by adducing evidence. The Tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the Tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. In **Pranay Sethi** the Apex Court approved the principle of 'standardisation' so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age. **MACA.No.158 OF 2011** **15** 21. In **Rajesh v. Rajbir Singh [(2013) 9 SCC 54]** , a Three- Judge Bench of the Apex Court held that, in case of self employed persons also, if the deceased victim is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. In **Munna Lal Jain v. Vipin Kumar Sharma [(2015) 6 SCC 347]** another Three- Judge Bench followed the principle stated in **Rajesh** . In **Pranay Sethi** , after expressing the opinion that the dicta laid down in **Reshma Kumari** being earlier in point of time would be a binding precedent and not the decision in **Rajesh** , the Constitution Bench observed that, in **Munna Lal Jain** , the ThreeJudge Bench should have been guided by the principle stated in **Reshma Kumari** which has concurred with the view expressed in **Sarla Devi** or in case of disagreement, it should have been well advised to refer the case to a Larger Bench. 22. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench held that, while determining the income, an addition of 50% of actual salary to the income of the **MACA.No.158 OF 2011** **16** deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. The Apex Court held further that, in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. 23. In the instant case, at the time of accident, the appellant was aged 18 years. He claimed a daily wage of Rs.150/- as coolie (manual labourer). As already noticed, no reliable materials were placed before the Tribunal to show that, at the time of accident, the appellant had a **MACA.No.158 OF 2011** **17** permanent job. Therefore, he can only be treated as a self employed. In view of the law laid down by the Apex Court in **Pranay Sethi** , an addition of 40% of the notional monthly income of the appellant, as re-fixed in this appeal considering the economic conditions prevailing at the time of accident and taking note of the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and in **Syed Sadiq** referred to supra, can be made towards future prospects, since the appellant was aged below 40 years. 24. Therefore, for the purpose of re-fixing the compensation under the head loss of earning (disability compensation), 40% of the monthly income of the appellant notionally re-fixed in this appeal as Rs.3,900/-, i.e., a sum of Rs.1,560/- (3,900 x 40/100) has to be added towards future prospects. In the result, the monthly income of the appellant, for the purpose of re-fixing the compensation under the head loss of dependency, is reckoned as Rs.5,460/- (3,900 + 1,560). 25. **In Sarla Verma v. Delhi Transport** **MACA.No.158 OF 2011** **18** **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, 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.** **MACA.No.158 OF 2011** **19** **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 18 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 correct and proper. 28. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,62,000/- (1,250 x 12 x 18 x 60/100). In this appeal, the monthly income of the appellant has already been re-fixed as Rs.3,900/-. Adding 40% of the notional monthly income of the appellant towards future prospects (3,900 + 1,560 = 5,460), applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 60%, the compensation under the head permanent disability is re-fixed as Rs.7,07,616/- (5,460 x 12 x 18 x **MACA.No.158 OF 2011** **20** 60/100), resulting an additional compensation of **Rs.5,45,616/-** (7,07,616 – 1,62,000). 29. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 8 days. The accident is of the year 2006. 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). 30. Towards bystander expenses the Tribunal awarded a sum of Rs.800/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.300/-. The accident is of the year 2006 and the appellant had undergone inpatient treatment for 8 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 refixed as Rs.1,600/- (200 x 8), resulting an additional **MACA.No.158 OF 2011** ## **21** compensation of **Rs.800/-** (1,600 - 800). The compensation under the head extra nourishment is re-fixed as Rs.1,200/(150 x 8), resulting an additional compensation of **Rs.900/-** (1,200 - 300). 31. Towards damage to clothing and articles, no amount has been awarded by the Tribunal. Considering the fact that the accident is of the year 2006, this Court deem it appropriate to grant a sum of **Rs.1,000/-** under this head. 32. The Tribunal awarded interest for the amount of compensation only from 01.03.2008 and not from the date of petition, i.e., 21.08.2007. The appellant is entitled for interest for the original compensation awarded by the Tribunal, at the rate of 7% per annum, from the date of application, i.e., 21.08.2007 till 01.03.2008. 33. Though the appellant claimed Rs.59,758/- towards treatment expenses, the Tribunal, after verifying the bills, found medical bills only for Rs.41,821/-. Bill for Rs.940/was not in the name of the appellant; bill for Rs.293/- was invoice; bill for Rs.5,000/- is advance and Rs.12,802/- is **MACA.No.158 OF 2011** **22** double claim. Among the bills for Rs.17,937/-, a bill for Rs.504/- is not in the name of the appellant and bill for Rs.5,000/- was an advance bill and bill for Rs.1,406/- was invoice. Therefore, the Tribunal limited the entitlement of the appellant towards medical expenses as Rs.31,133/-. In the absence of any further medical bills, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 34. 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.25,000/-, resulting an additional compensation of **Rs.15,000/-** (25,000 – 10,000) under this head. 35. Towards loss of amenities, no amount has been awarded by the Tribunal. In Ext.C1 disability certificate the permanent disability of the appellant, on account of the **MACA.No.158 OF 2011** **23** injuries sustained in the accident, is assessed as 60%. Considering the nature of injuries sustained and 60% permanent disability on account of those injuries, as assessed in Ext.C1 disability certificate, the appellant is granted a sum of **Rs.60,000/-** towards the head loss of amenities. 36. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.6,25,816/-** (Rupees Six lakh twenty five thousand eight hundred and sixteen only) [5,45,616 + 2,500 + 800 + 900 + 1000 + 15,000 + 60,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition, i.e., 21.08.2007 till realisation. The appellant shall also be paid interest at the rate of 7% for the original compensation awarded by the Tribunal for the period from 21.08.2007 till 01.03.2008. 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 **MACA.No.158 OF 2011** **24** 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 to 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** AV/22/2