K.B. Mohanan v. A. Rahim and others

## **N THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **MACA.No.1619 OF 2007** **AGAINST THE AWARD IN OP(MV)No.727/2001 DATED 28-02-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** **K.B. MOHANAN, S/O.BHASKARAN KATTIPPULUKATTIL, UDAYAM PEROOR,, NADAKKAVU P.O., ERNAKULAM DIST.** **BY ADVS. SRI.P.T.JOSE SRI.JOSE JOSEPH ARAYAKUNNEL** ## **RESPONDENTS/RESPONDENETS:** - **1 A. RAHIM,S/O ABOOBACKER KUNJU MANIKOTTUKIZHAKKEVILAPUTHEN VEEDU,, VENJARAMOOD P.O., THIRUVANANTHAPURAM DIST.** - **2 J.PRASANNA, ASHA BHAVAN VAMANAPURAM P.O.,, THIRUVANANTHAPURAM DIST.** - **3 THE NEW INDIA ASSURANCE COMPANY LTD. NR.MUNICIPAL BUS STAND, MAIN ROAD,, ATTINGAL - 695 101., (POLICY NO.3176050380200 20/11/1999 TO 19/11/2000)** - **4 K.K.SREEVALSAN KADAVIL HOUSE POOTHOTTA P.O., ERNAKULAM DIST., R4 DELETED ASPER ORDER DATED 26/9/05 IN IA 3876/05** -2- MACA. No. 1619 of 2007 **5 UNITED INDIA INSURANCE COMPANY LTD. BRANCH OFFICE, MANICKANAMPARAMBIL BLDG., LAYAM ROAD, TRIPUNITHURA., POLICY NO.101301/31/021/11/02259/1999, (29/7/99 TO 28/7/2000) R5 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSURANCE CO LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- MACA. No. 1619 of 2007 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.727 of 2001 on the file of the Motor Accidents Claims Tribunal, Ernakulam, 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 23.03.2000, while he was driving a pickup van bearing registration No.KL-7/X-3540, owned by the 4[th] respondent and insured with the 5[th] respondent. At the place of accident, the said vehicle was hit by a mini lorry bearing registration No.KL01/-6741 driven by the 1[st] respondent, owned 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 mini lorry by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,99,000/- under various heads, which was limited to Rs.3,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 remained -4- MACA. No. 1619 of 2007 absent and they were set ex parte. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the mini lorry; however, denying the negligence alleged against the 1[st] respondent driver. The insurer raised a contention that the accident occurred due to the rash and negligent driving of pickup van by the appellant himself. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. The 5[th] respondent insurer of the pickup van filed written statement contending that he is not a necessary party. 4. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant and PWs 1 and 2 were examined. On the side of the respondents, Ext.B1 statement 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 mini lorry by the 1[st] respondent driver. Since insurance coverage of -5- MACA. No. 1619 of 2007 the said the vehicle was not in dispute, the insurer was held liable to indemnify the insured. 6. Under various heads, the Tribunal awarded a total compensation of Rs.1,63,881/- together with interest at the rate of 7.5% per annum from the date of petition with proportionate cost and the insurer was directed to satisfy the award. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 8. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. 9. 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. 10. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section -6- MACA. No. 1619 of 2007 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. 11. 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 -7- MACA. No. 1619 of 2007 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. 12. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||**Head**||**Amount**<br>**awarded**| |---|---|---|---| |Medical expenses<br>(supported by bills)|||88,881/-| |Transportation, extra<br>nourishment to clothes &<br>attendant expenses|||5,500/-| |Shock, pain and sufferings|||15,000/-| |Loss of permanent disability<br>(2500 x 12x x11 x 15%)|||49,500/-| |Loss of amenities and<br>convenience|||5,000/-| |**Total**|||**1,63,881,/-**| 13. The accident occurred on 23.03.2000. At the time of accident, the appellant was aged 47 years. He claimed a monthly income of Rs.5,000/- as Driver by profession. No materials were placed on record to prove the monthly income. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the -8- MACA. No. 1619 of 2007 monthly income notionally as Rs.2,500/-, for the purpose of assessing compensation under various heads. 14. 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 -9- MACA. No. 1619 of 2007 determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 15. 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. 16. In the instant case, admittedly, at the time of -10- MACA. No. 1619 of 2007 accident, the appellant was driving a Mahindra pickup van. The respondents have no case that the appellant was charge sheeted by the police for driving a transport vehicle without a valid licence and badge. Therefore, 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. 17. The document marked as Ext.A2 is the wound certificate and Ext.A5 is the treatment certificate. As borne out from medical records, immediately after the accident, the appellant was taken to Ernakulam Medical Centre, with multiple abrasions, lacerations, fracture of right acetabulum extending to right scroiliac joint. Clinical features suggested haemoperitoneum. After admission, the appellant developed symptoms suggestive of acute respiratory distress syndrome and he was put on ventilator. He had undergone inpatient treatment for a period of 28 days, which includes 17 days on ventilator. Ext.A6 series of medical bills are for a sum of Rs.88,881/-. -11- MACA. No. 1619 of 2007 18. In Ext.A8 certificate issued by the Medical Board, the permanent disability of the appellant on account of the injuries sustained in the motor accident is assessed as 15% as per MC Bride's scale. 19. The Tribunal awarded no compensation under the head loss of earning. Considering the nature of injuries sustained and the treatment the appellant had undergone, this Court deem it appropriate to grant loss of earning for a period of 4 months. Since the monthly income of the appellant is re-fixed as Rs.3,000/-, the appellant will be entitled for a sum of **Rs.12,000** /- (3,000 x 4) under the head loss of earning. 20. 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 -12- MACA. No. 1619 of 2007 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. 21. 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. 22. In the instant case, as on the date of accident, the -13- MACA. No. 1619 of 2007 appellant was aged 47 years. The Tribunal applied the multiplier of 15. In the light of the decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the proper multiplier to be applied is **13** . 23. Towards permanent disability, the Tribunal awarded a sum of Rs.49,500/- (2,500 x 12 x 11 x 15/100). The monthly income of the appellant has already been re-fixed notionally as Rs.3,000/-. Applying the multiplier of '13' applicable to the age group of the appellant and the percentage of disability as 15%, the compensation under this head is re-fixed as Rs.70,200/- (3,000 x 12 x 13 x 15/100) resulting an additional compensation of **Rs.20,700** /-. (70,200-49,500). 24. Towards transportation to hospital; extra nourishment; attendant expenses; and damage to clothing, the Tribunal awarded a consolidated sum of Rs.5,500/-. The accident is of the year 2000. The appellant had undergone in patient treatment for a period of 28 days. Considering the said facts, this Court deem it appropriate to grant a sum of -14- MACA. No. 1619 of 2007 Rs.1,500/- as transportation charges; a sum of Rs.2,800/(100 x 28) towards extra nourishment; a sum of Rs.4,200/(150 x 28) towards attendant expenses; and a sum of Rs.750/- towards damage to clothings. Therefore, the compensation under these heads is re-fixed as 9,500/(1500+ 2800 + 4,200 + 750) resulting an additional compensation of **Rs.3,750/-** (9,250 – 5,500). 25. Towards pain and suffering, the Tribunal awarded Rs.15,000/-. The appellant had undergone inpatient treatment for 28 days, which include 17 days on ventilator. Considering the nature of injuries and the treatment the appellant had undergone, the compensation under this head is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.5,000** /- (20,000-15,000). 26. Towards loss of amenities, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries and the disability that had arisen out of those injuries, as certified in Ext.A8, the compensation under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of -15- MACA. No. 1619 of 2007 ## **Rs.10,000** /- (15,000 – 10,000). 27. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.51,450/-** (Rupees Fifty One thousand Four Hundred and Fifty only) [12,000 + 20,700 + 3,750 + 5,000 + 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 to the appellant 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** **das**