K. T. Chandrika v. The Managing Director, Kerala State Road Transport Corporation & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941** **MACA.No.2399 OF 2012** **AGAINST THE AWARD IN O.P.(MV) NO.1764/2002 DATED 30-04-2010 OF IST ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** **K.T.CHANDRIKA, D/O. KEERAN, AGED 46 YEARS, PADALIYIL HOUSE, CHATHAMANGALAM P.O., R.E.C.(VIA), KOZHIKODE-673 001.** **BY ADVS. SRI.NIRMAL. S SMT.VEENA HARI** ## **RESPONDENTS/RESPONDENTS:** - **1 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM-695 001. (OWNER OF BUS KL-15/2821)** - **2 K.K. SUKUMARAN, S/O. RARUKUTTY, KOLAKANDIYIL HOUSE, KARANTHOOR P.O., KUNNAMANGALAM, PIN-673 001. (RC OWNER OF BUS KL-11/D-7101)** - **3 K. BABY, S/O. KELUKUTTY, THAZHE MANNAKKAL HOUSE, PARAMBILPADI MERIKUNNU P.O., KOZHIKODE-673 012. (DRIVER OF KSRTC BUS KL-11/D-7101)** - **4 PRADEEPAN, S/O. SOMAN, ERANGOT HOUSE, KARANTHUR P.O., KOLAYATHZHAM, PIN-673 001. (DRIVER OF THE BUS BEARING NO. KL-11/D-7101)** **MACA.No.2399 OF 2012** -2- **5 NATIONAL INDIA INSURANCE COMPANY LIMITED, P.M. TAJ ROAD, KOZHIKODE-673 001. R1 BY ADV.SRI.BABU JOSEPH KURUVATHAZHA,SC, KERALA STATE ROAD TRANSPORT CORPORATION R1 BY ADV.SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPORATION. R5 BY ADVS.SMT.P.K.SANTHAMMA R5 SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2399 OF 2012** -3- ## **JUDGMENT** The appellant, who is the claimant in O.P.(MV) No.1764 of 2002 on the file of the 1[st] Additional 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 14.05.2001 while she was walking along the side of a public road. At the place of accident, a bus bearing registration No.KL-11/D-7101 owned by the 2[nd] respondent and driven by the 4[th] respondent collided with a KSRTC bus bearing registration No.KL-15/2821, owned by the 1[st] respondent and driven by the 3[rd] respondent. In that accident, bus bearing registration No.KL11/D-7101 knocked down the appellant after hitting against KSRTC bus bearing registration No.KL-15/2821. Alleging that the accident occurred due to the rash and negligent driving of the offending vehicles by respondents 3 and 4, 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 3 filed a written statement contending that the accident occurred due to the rash and negligent driving of bus bearing registration No.KL- **MACA.No.2399 OF 2012** -4- 11/D-7101 by its driver. The 5[th] respondent filed written statement admitting the policy coverage of the said bus. 3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant. Ext.C1 is the disability certificate issued by the Medical Board at Medical College Hospital, Kozhikode. 4. After considering the pleadings and materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of both vehicles by the respective drivers. The Tribunal held that the 1[st] respondent being the owner of the KSRTC bus bearing registration No.KL-15/2821 has to satisfy 50% of the amount of compensation and the 5[th] respondent being the insurer of bus bearing registration No. KL-11/D-7101 has to pay the remaining 50%. Under various heads, the Tribunal awarded a total compensation of Rs.75,474/- and directed the 1[st] respondent Managing Director and the 5[th] respondent insurer to deposit the amount in the ratio 50:50, together with interest at the rate of 7% per annum from the date of petition till realisation, with a cost of Rs.1,000/-. 5. Dissatisfied with the quantum of compensation **MACA.No.2399 OF 2012** -5- awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/claimant, Sri.P.C. Chacko, the learned Standing Counsel for the 1[st] respondent KSRTC and Sri.M.A.George, the learned Standing Counsel for the 5[th] respondent insurer. 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 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. **MACA.No.2399 OF 2012** -6- 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-violation of the principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head of<br>Claim|Amount<br>claimed|Amount<br>allowed|Details| |---|---|---|---|---| |1|Transport to<br>Hospital &<br>Damage to<br>clothing &<br>other articles|3,000 and<br>400|1,500/-|----| |2|Extra<br>nourishment|9,000|3,000/-|----| |3|Loss of<br>earning|15,000|10,000/-|2500x4| |4|Bystander's<br>expenses|8,000|5,900/-|For 59 days| |5|Treatment<br>expenses|20,000|6,074/-|----| **MACA.No.2399 OF 2012** -7- |6|Pain and<br>Sufferings|25,000|25,000/-|----| |---|---|---|---|---| |7|Permanent<br>disability|30,000|24,000/-|2500x12x16x5/100| |**Total**||**1,50,000/-**|**75,474/-**|**7% interest from the**<br>**date of petition**| 11. The accident occurred on 14.05.2001. At the time of accident, the appellant was aged 36 years. The appellant claimed a monthly income of Rs.4,500/- as a daily waged worker. 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 monthly income notionally as Rs.2,500/-. 12. 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 **MACA.No.2399 OF 2012** -8- 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 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. **MACA.No.2399 OF 2012** -9- 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2001, 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.3,000/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A4 is the wound certificate. As per Ext.A4 wound certificate, the petitioner sustained extensive degloving injury over left leg. Ext.A5 is the reference card, which would show that she had undergone inpatient treatment for a period of 59 days from 14.05.2001 to 13.07.2001. As per Ext.A5, the appellant sustained extensive degloving injury over left leg extending from left knee to the root of the toe. She was treated in the hospital by subjecting her to root debridgement. Ext.A6 series of medical bills are for a sum of Rs.6,074/-, which has been verified and approved by the learned counsel for the 5[th] respondent insurer. In Ext.C1 disability certificate, the Medical Board at Medical College Hospital, Kozhikode assessed the permanent disability of appellant, on account of the injuries sustained in the accident, as 5%. **MACA.No.2399 OF 2012** -10- 16. 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, this Court deem it appropriate to grant loss of earning to the appellant for a period of 5 months. Since the monthly income has been notionally fixed as Rs.3,000/-, the compensation under the said head is re-fixed as Rs.15,000/- (3,000 x 5) resulting an additional compensation of **Rs.5,000/-** (15,000 - 10,000). 17. Towards extra nourishment, the Tribunal awarded a sum of Rs.3,000/- and a further sum of Rs.5,900/- was awarded towards bystander's expenses. The accident is of the year 2001 and the appellant had undergone inpatient treatment for a period of 59 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under the head extra nourishment is re-fixed as Rs.5,900/- (100 x 59), resulting an additional compensation of **Rs.2,900/-** (5,900 - 3,000). The compensation under the head bystander's expenses is re-fixed as Rs.8,850/- (150 x 59) resulting an additional compensation of **Rs.2,950/-** (8,850 - 5,900). **MACA.No.2399 OF 2012** -11- 18. The Tribunal awarded no compensation towards damage to clothing. Considering the fact that the accident is of the year 2001, this Court deem it appropriate to grant a sum of **Rs.750/-** under this head. 19. Towards treatment expenses, the Tribunal awarded a sum of Rs.6,074/- covered by Ext.A6 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. 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** **MACA.No.2399 OF 2012** -12- **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. 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 36 years. In the light of the decisions of the **MACA.No.2399 OF 2012** -13- Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the multiplier of 16 applied by the Tribunal is not correct and and the proper multiplier to be applied is **15** . 24. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.24,000/- (2,500 x 12 x 16 x 5/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,000/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of permanent disability as 5%, the compensation under the head permanent disability is re-fixed as Rs.27,000/- (3,000 x 12 x 15 x 5/100), resulting an additional compensation of **Rs.3,000/-** ( 27,000 - 24,000). 25. Towards loss of amenities, no amount has been awarded by the Tribunal. Considering the nature of injuries sustained and the permanent disability, on account of those injuries, assessed as 5% in Ext.C1 disability certificate, this Court deem it appropriate to grant a sum of **Rs.10,000/-** towards loss of amenities. 26. In the result, the appellant is entitled for an additional compensation of **Rs.24,600/- (Rupees twenty four thousand six hundred only)** [5,000 + 2,900 + **MACA.No.2399 OF 2012** -14- 2,950 + 750 + 3,000 +10,000] 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 807 days in filing this appeal, which was condoned by the order dated 25.09.2019 in C.M. Application No.2835 of 2012, subject to the condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said amount for the period of delay. Respondents 1 and 5 shall satisfy the additional compensation granted in this appeal in the ratio 50:50 before the Tribunal, within 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/claimant shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019. This M.A.C.A. is disposed of as above. Sd/- **ANIL K. NARENDRAN JUDGE** bpr