K.O. Varghese @ Joy K.K. S/O K.V. Ouseph @ Kochappan, Kannampuzha House, V.R. Puram Desom & P.O, Mukundapuram Taluk v. P.V. Shaji, Hariharan and The Manager, Oriental Insurance Company 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.2681 OF 2009** **AGAINST THE AWARD IN OPMV 564/2005 DATED 07-05-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONE IN OP(MV)** **K.O.VARGHESE @ JOY K.K. S/O.K.V.OUSEPH @ KOCHAPPAN,KANNAMPUZHA HOUSE,, V.R.PURAM DESOM & P.O, MUKUNDAPURAM TALUK.** **BY ADV. SRI.P.V.BABY** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** **1 P.V.SHAJI, S/O.VARKEY, PARAKANDATH HOUSE, CHIRANGARA PO,CHALAKUDY. 2 HARIHARAN, S/O.VALLON, KOZHIKKATTIL HOUSE, KUNDOOR PO, THIRUMUKKULAM VILLAGE. 3 THE MANAGER, ORIENTAL INSURANCE CHALAKUDY.** **R1 BY ADV. SRI.M.K.SHAJI R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA R2 BY ADV. SRI.C.P.PEETHAMBARAN R3 BY SMT K.S.SANTHI-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.2681 OF 2009** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.564 of 2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 22.10.2004, while he was driving an autorikshaw bearing registration No.KL-8/W6986. At the place of accident, the said autorikshaw was hit by another autorikshaw bearing registration No.KL-8/M-778, 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 autorikshaw 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 remained absent and they were set ex-parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the offending autorikshaw; however, denying the negligence alleged against the 2[nd] **MACA.No.2681 OF 2009** 3 respondent driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant. 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 autorikshaw 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 awarded a total compensation of Rs.1,52,300/-, together with interest at the rate of 7% per annum from the date of petition till realisation, with proportionate cost. The 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 **MACA.No.2681 OF 2009** 4 and also the learned Standing Counsel for the 3[rd] respondent/insurer. 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 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 **MACA.No.2681 OF 2009** 5 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: |Loss of earning(2500 x 3)|7,500/-| |---|---| |Transportation to Hospital|1,000/-| |Bystander expense|800/-| |Pain and Suffering|15,000/-| |Loss of amenities|5,000/-| |Medical expense|15,000/-| |Compensation for disability<br>(2,000 x 12 x 15 x 30/100)|1,08,000/-| |Total|1,52,300/-| 12. The accident occurred on 22.10.2004. At the time of accident, the appellant was aged 42 years. The appellant claimed a monthly income of Rs.4,000/- as an autorikshaw driver. No materials were produced before the Tribunal to prove the monthly **MACA.No.2681 OF 2009** 6 income of the appellant. The appellant has also not chosen to mount the box. A copy of the driving licence was marked as Ext.A8. The Tribunal fixed the monthly income notionally as Rs.2,500/-, for the purpose of awarding compensation under the head loss of earning and as Rs.2,000/- for the purpose of awarding compensation for permanent disability. ## 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 **MACA.No.2681 OF 2009** 7 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 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. The driving licence of the appellant was marked as Ext.A8. The accident occurred while the appellant was driving an **MACA.No.2681 OF 2009** 8 autorikshaw. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2004, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, monthly income claimed by the appellant as Rs.4,000/- is not on a higher side, which is taken as his notional monthly income for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A4 is the wound certificate and Ex.A5 is the discharge card. As borne out from medical records, in the accident, the appellant sustained multiple skin abrasions on the face, injury to the iris of left eye with fluid leaking and skin abrasions over the left pinna. He was admitted at St.James Hospital, Chalakkudy with the aforesaid injuries. He was referred to Litter Flower Hospital, Angamaly for expert treatment. As per Ext.A5 discharge summary, he was admitted at Little Flower Hospital, Angamaly where he had undergone inpatient treatment for a period of 6 days. Thereafter, in February 2005, he had undergone inpatient treatment for a period of two days. Ext.A6 disability certificate issued from Little Flower Hospital would show that the appellant had sustained corneal tear, **MACA.No.2681 OF 2009** 9 surgical iris colobohia and aphasia. 17. Ext.A7 is the disability certificate issued by a senior Eye Micro Surgeon after examining the appellant, assessing his permanent disability as 30%. The Tribunal accepted the percentage of disability in Ext.A7, for the purpose of assessing compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.7,500/-, at the rate of Rs.2,500/- per month for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is just and reasonable. 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.12,000/- (4,000 x 3), resulting an additional compensation of **Rs.4,500/-** (12,000 – 7,500). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 8 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained and the **MACA.No.2681 OF 2009** 10 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). 20. Towards bystander expenses, the Tribunal awarded a sum of Rs.800/-. The Tribunal awarded no amount towards extra nourishment. The accident is of the year 2004. 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 re-fixed as Rs.1,200/- (150 x 8), resulting an additional compensation of **Rs.400/-** (1,200 - 800). The appellant is granted a sum of **Rs.800/-** (100 x 8) as compensation under the head extra nourishment. 21. The Tribunal awarded no amount towards damage to clothing and articles. 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. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.15,000/-, covered by Ext.A12 series of medical bills. In the **MACA.No.2681 OF 2009** 11 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.15,000/-. 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. 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 [prepared by applying **Susamma Thomas** , **Trilok Chandra** and **Charlie** ], which starts with an operative multiplier **MACA.No.2681 OF 2009** 12 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 42 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 15 applied by the Tribunal is not correct and and the proper multiplier to be applied is **14** . 27. Towards compensation for permanent disability, the **MACA.No.2681 OF 2009** 13 Tribunal awarded a sum of Rs.1,08,000/- (2,000 x 12 x 15 x 30/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, applying the multiple of 14 applicable to the age group of the appellant and the percentage of permanent disability as 30%, the compensation under the head permanent disability is re-fixed as Rs.2,01,600/- (4,000 x 12 x 14 x 30/100), resulting an additional compensation of **Rs.93,600/-** ( 2,01,600 – 1,08,000). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.5,000/-. In Ext.A7 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 30%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.A7 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.35,000/-, resulting an additional compensation of **Rs.30,000/-** (35,000 – 5,000). In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,31,050/-** (Rupees one lakh thirty one thousand and fifty only) [4,500 + 1,000 + 400 + 800 + **MACA.No.2681 OF 2009** 14 750 + 93,600 + 30,000] 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.D162475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN** JV **JUDGE**