K.R. Sivadasan v. P.K. Suresh Babu and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 25TH DAY OF OCTOBER 2019 / 3RD KARTHIKA, 1941** ## **MACA.No.2377 OF 2009** **AGAINST THE AWARD IN OPMV 1722/2004 DATED 30-04-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER :** **K.R.SIVADASAN, S/O.KIZHAKKAN RAMAN, VALAPPAD VILLAGE, VALAPPAD BEACH DESOM,, CHAVAKKAD TALUK, TRICHUR DISTRICT.** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS:** - **1 P.K.SURESH BABU, S/O.PANNIPALATH KUMARAN, VALAPPAD BEACH P.O., THRISSUR DISTRICT.** - **2 RAJU S/O. KANNOTH CHAKKAPPAN CHOOLUR DESOM, EDATHIRUTHY VILLAGE,, KODUNGALLUR TALUK.** - **3 THE MANAGER, NEW INDIA ASSURANCE CO. LTD., TEMPLE ROAD,, TRIPRAYAR, NATTIKA P.O., THRISSUR DISTRICT.** - **4 N.V.RAJENDRAN S/O. NEDIYIRIPPIL VELANDY, KAZHIBRAM, EDAMUTTAM, THRISSUR DISTRICT.** - ***5 SHIBU S/O. KUNJUMAKKAM PURACKAL, SADANANDAN, KARA DESOM, EDAVILANGU VILLAGE, KODUNGALLUR TALUK. (DELETED)** - **5TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 14-10-19 IN I.A.NO.1/19** - **6 THE MANAGER, NATIONAL INSURANCE CO. LTD., BRANCH OFFICE,, THRISSUR.** ## **SRI LAL GEORGE -STANDING COUNSEL ; SRI A.A ZIYAD RAHMAN- STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2377 OF 2009** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1722 of 2004 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 in a motor accident, which occurred on 10.08.1996, involving a mini lorry bearing registration No.KL-8/B-3258, in which he was the cleaner. At the place of accident, the said mini lorry owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent, hit on a bus bearing registration No.KER/2901 driven by the 5[th] respondent, owned by the 4[th] respondent and insured with the 6[th] 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 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, respondents 1, 2, 4, 5 and 6 remained absent and they were set ex-parte. The 3[rd] **MACA.No.2377 OF 2009** **3** respondent insurer of the mini lorry filed written statement admitting the insurance coverage of the vehicle. It was contended that the 1[st] respondent owner was responsible for the accident as the 2[nd] respondent driver had no licence at the time of accident. The insurer disputed the claim on the ground of inordinate delay. 3. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellant/claimant. A copy of the policy schedule was marked as Ext.B1, on the side of the respondents. Both sides have not chosen to adduce any oral evidence. 4. 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 2[nd] respondent driver and the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.53,000/- together with interest at the rate of 7% per annum from the date of petition till realisation with proportionate cost, and the insurer was directed to satisfy **MACA.No.2377 OF 2009** **4** the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the respective Standing Counsel for respondents 3 and 6. 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 **MACA.No.2377 OF 2009** **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. 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; |Head|Amount allowed| |---|---| |Medical expenses|14,100/-| **MACA.No.2377 OF 2009** **6** |Transportation expenses|1,000/-| |---|---| |Hospital and bystander's expenses|2,700/-| |Loss of income|5,000/-| |Pain and sufferings|10,000/-| |Discomfort and loss of amenities|4,000/-| |Disability compensation|16,200/-<br>(1250x12x18x6/100)| |**Total**|**53,000/-**| 11. The accident occurred on 10.08.1996. At the time of accident, the appellant was aged 29 years. He claimed a monthly income of Rs.3,000/- as a Cleaner. No documents were produced before the Tribunal to prove the income of the appellant. He has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.1,250/-, for the purpose of assessing compensation under various heads. 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 **MACA.No.2377 OF 2009** **7** 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. 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 **MACA.No.2377 OF 2009** **8** 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. 14. As per Ext.A1 FIR the appellant was employed as cleaner in the mini lorry involved in the accident. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 1996, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra and also considering the nature of contentions raised in the counter affidavit filed by the 3[rd] respondent insurer before the Tribunal, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.1,750/-, for the purpose of assessing compensation under various heads. **MACA.No.2377 OF 2009** **9** 15. As per Ext.A3 wound certificate issued from West Fort Hospital, Thrissur, immediately after the accident, the appellant was brought there with contusion over the left thigh and left knee and investigation revealed fracture of left femur. Ext.A4 discharge card showed that he had undergone inpatient treatment for a period of 14 days. He was again admitted for one day on 01.10.1996. On 21.11.1997, he was admitted in the Medical College Hospital, Kozhikode with distal migration of the interlocking nail and continued there as inpatient for 25 days. Ext.A7 discharge card would reveal that he was again admitted in the same hospital on 17.02.1998 due to the non union of fracture and continued as inpatient for 14 days, during which bone grafting was done. 16. The appellant produced Ext.A10 disability certificate showing 15% disability of the limb on the ground of shortening, mal union of fracture and stiffness of left knee. The Tribunal converted the same to whole body disability using the usual ratio and took 6% as permanent disability for the purpose of awarding compensation under **MACA.No.2377 OF 2009** **10** various heads. Though the Doctor, who had issued Ext.A10 certificate, who was an Assistant Professor in the Department of Orthopaedics, Medical College Hospital, Thrichur, was not examined, considering the nature of disabilities noted in the said certificate, namely, malunion of (L) femur, shortening of (L) leg and stiffness of (L) knee, this Court deem it appropriate to take the percentage of permanent disability of the appellant, who is a cleaner in mini lorry, as 10%, for the purpose of assessing compensation under various heads. 17. Towards loss of income, the Tribunal awarded a sum of Rs.5,000/-, at the rate of Rs.1,250/- 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 just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.1,750/-, the compensation under the head loss of income is re-fixed as Rs.7,000/- (1,750 x 4), resulting an additional compensation of **Rs.2,000/-** (7,000 **MACA.No.2377 OF 2009** **11** - 5,000). 18. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under this head is re-fixed as Rs.2,500/-, resulting an additional compensation of **Rs.1,500/-** (2,500 – 1,000). 19. Towards, hospital expenses and bystander's expenses, the Tribunal awarded a sum of Rs.2,700/- (54 x 50). The accident is of the year 1999. Considering the fact that the appellant had undergone inpatient treatment for a period of 54 days, this Court deem it appropriate to grant a sum of Rs.5,400/- (100 x 54) under the head bystander expense, and a further sum of Rs.4,050/- (75 x 54) towards extra nourishment, resulting an additional compensation of **Rs.6,750/-** [(5,400 + 4,050)- 2,700]). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.14,100/-, covered by Ext.A11 bills and vouchers. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and **MACA.No.2377 OF 2009** **12** reasonable compensation, which requires no enhancement in this appeal. 21. Towards pain and sufferings, 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 the medical records, the compensation awarded by the Tribunal under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 - 10,000). 22. Towards loss of amenities the Tribunal awarded a sum of Rs.4,000/-. Considering the nature of injuries sustained by the appellant and also the permanent disability on account of those injuries, which is taken as 10% in this appeal, the compensation under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.11,000/-** (15,000 - 4,000). 23. 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]** , **MACA.No.2377 OF 2009** **13** **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. 24. 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 **MACA.No.2377 OF 2009** **14** guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 25. In the instant case, as on the date of accident, the appellant was aged 29 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 adopted by the Tribunal is incorrect. The correct and proper multiplier to be applied is **17** . 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.16,200/- (1,250 x 12 x 18 x 6/100). Since the monthly income of the appellant is refixed notionally as Rs.1,750/-, applying the multiplier of 17 and the permanent disability of 10%, the compensation under this head is re-fixed as Rs.35,700/- (1,750 x 12 x 17 x 10/100), resulting an additional compensation of **Rs.19,500/-** (35,700 - 16,200). 27. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.45,750/-** (Rupees Forty five thousand seven hundred and fifty only) [2,000 + 1,500 + 6,750 + 5,000 + 11,000 + 19,500] in **MACA.No.2377 OF 2009** **15** 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 the amount 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** AV/1/11