Kunhiraman v. Dileesh Chand P.K. and Balakrishnan and National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941** ## **MACA.No.2277 OF 2013(C)** **AGAINST THE AWARD IN O.P.(MV) NO.300/2009 DATED 31-12-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VATAKARA** ## **APPELLANT/PETITIONER:** **KUNHIRAMAN, AGED 47 YEARS, S/O. KUNHIKANARAN, PERAVKODI HOUSE, MUCHUKUNNU P.O, VIYYOOR AMSOM, PULIYANCHERI DESOM, KOYILANDY.** **BY ADVS. SRI.R.PARTHASARATHY SMT.SEEMA** ## **RESPONDENTS/RESPONDENTS:** - **1 DILESH CHAND P.K., S/O. BALAKRISHNAN, SANTHISREE HOUSE, KOLLAM P.O., KOYILANDY-673 505.** - **2 BALAKRISHNAN, S/O. CHANDU CHETTIAR, SANTHISREE HOUSE, KOYACHAM VEETTIL, KOLLAM P.O., KOYILANDY.** - **3 NATIONAL INSURANCE COMPANY LIMITED, FOURTH FLOOR, PARCO TOWER, P.M. TAJ ROAD, P.B. NO. 207, KOZHIKODE. R3 BY ADV. SRI.AGI JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2277 OF 2013(C)** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.300 of 2009 on the file of the Motor Accidents Claims Tribunal, Vatakara, 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 24.08.2008, while he was riding a motorcycle bearing registration No.KL-56/7952. At the place of accident, the motorcycle was hit by another motorcycle bearing registration No.KL-56/A-1544, ridden by the 1[st] respondent, owned 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 1[st] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.8,00,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 filed written statement admitting the accident; however, denying negligence alleged against the 1[st] respondent rider. They contended that the accident occurred due to the rash and negligent riding of motorcycle by the appellant. **MACA.No.2277 OF 2013(C)** -3- 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the motorcycle involved in the accident; however, denying negligence alleged against the 1[st] respondent rider. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A10 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. Both sides have not chosen to adduce any oral evidence. The document marked as Ext.A9 is the disability certificate issued by the Taluk Medical Board assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident. 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 offending motorcycle by the 1[st] respondent 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.3,84,755/- **MACA.No.2277 OF 2013(C)** -4- (less interim award under Section 140 of the Motor Vehicles Act), together with interest at the rate of 7.5% per annum from the date of petition till realisation, with proportionate cost. 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 and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 was dispensed with, by the order of this Court dated 23.09.2019. 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 **MACA.No.2277 OF 2013(C)** -5- 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 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. **MACA.No.2277 OF 2013(C)** -6- ## 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |SL<br>No|Head of claim|Amount<br>claimed<br>(Rs.)|Amount<br>awarded<br>(Rs.)|Basis-vital details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|20,000/-|12,000/-|| |2|Medical<br>treatment<br>and<br>expenses|4,90,000/-|1,81,295/-|Bills produced as Ext.A10<br>series of Rs.2,48,796/-.<br>But acceptable bills are<br>of Rs.1,81,295/-.| |3|Transport to hospital|1,000/-|16,000/-|Bills produced as Ext.A8<br>series for Rs.16,000/-.| |4|Bystander expenses|10,000/-|6,000/-|Rs.200 x 30 days IP<br>treatment in B.M.H.| |5|Damage to clothing and<br>articles|1,000/-|500/-|| |6|Extra nourishment|2,000/-|2,000/-|| |7|Pain and suffering|1,75,000/-|15,000/-|| |8|Compensation for disability|70,000/-|1,41,960/-|3,500 x 12 x 13 x<br>26/100| |9|Compensation for loss of<br>earning power|25,000/-|---|| |10|Loss of amenities and<br>enjoyment in life|25,000/-|10,000/-|| ||Total claim<br>limited to Rs.8,00,000/-|8,19,000/-|3,84,755/-|| 12. The accident occurred on 24.08.2008. At the time of accident, the appellant was aged 47 years. He claimed a monthly income of Rs.6,500/- as cook, who was running a hotel. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.3,500/-, for the purpose of assessing compensation under **MACA.No.2277 OF 2013(C)** -7- 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, 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. **MACA.No.2277 OF 2013(C)** -8- 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. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2008, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.6,500/- claimed in the claim petition is not on the higher side, which is taken **MACA.No.2277 OF 2013(C)** -9- as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the accident register cum wound certificate. Ext.A4 series are the test report and prescriptions. As per medical records, in the accident, the appellant had sustained fracture on right femur; fracture of right radius; crush injury on right foot; fracture on right 1[st] to IV metatarsal bones; and fracture on right tibial plateau. He had undergone inpatient treatment for a total period of 42 days. Ext.A10 series of medical bills are for a sum of Rs.2,48,796/-. 17. The document marked as Ext.A9 is the disability certificate issued by the Medical Board at Taluk Headquarters Hospital Vatakara, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 78.73%. The Tribunal did not accept the assessment of disability in Ext.A9 and took the percentage of permanent whole body disability as 26%. 18. During the pendency of this appeal, the appellant was referred to Medical Board at Government Medical College Hospital, Kozhikode to assess his permanent disability. The **MACA.No.2277 OF 2013(C)** -10- report of the Medical Board dated 09.01.2020 is placed on record, along with a covering letter dated 13.01.2020 of the Superintendent of the Medical College, in which the permanent whole body disability of the appellant, on account of the injuries sustained in the accident, is assessed as 40%. 19. The learned Standing Counsel for the 3[rd] respondent insurer would submit that disability compensation can be re-fixed, based on the disability assessed by the Medical Board in the certificate dated 09.01.2020. 20. Towards loss of earning, the Tribunal awarded a consolidated sum of Rs.12,000/-. Considering the nature of injuries and the treatment the appellant had undergone, he can be granted loss of earning for a period of 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.6,500/-, the compensation under the head loss of earning is re-fixed as Rs.32,500/- (6,500 x 5), resulting an additional compensation of **Rs.20,500/-** (32,500 - 12,000). 21. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 42 days. The accident is of the year 2008. Towards transportation to hospital, the Tribunal awarded a sum of Rs.16,000/-, covered **MACA.No.2277 OF 2013(C)** -11- by Ext.A8 series of bills. 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 22. Towards bystander expenses the Tribunal awarded a sum of Rs.6,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2008 and the appellant had undergone inpatient treatment for 42 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.8,400/- (200 x 42), resulting an additional compensation of **Rs.2,400/-** (8,400 - 6,000). The compensation under the head extra nourishment is re-fixed as Rs.6,300/- (150 x 42), resulting an additional compensation of **Rs.4,300/-** (6,300 - 2,000). 23. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2008, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional **MACA.No.2277 OF 2013(C)** -12- compensation of **Rs.500/-** (1,000 - 500). 24. Towards medical expenses, the Tribunal awarded a sum of Rs.1,81,295/-, covered by Ext.A10 series of medical bills for a total sum of Rs.2,48,796/- after excluding the amount covered by advance bills. The procedure adopted by the Tribunal cannot be said to be arbitrary or illegal. In the absence of any further materials, the appellant is not entitled for enhancement of the compensation awarded by the Tribunal under this head. 25. 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 the head pain and suffering is re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.10,000/-** (25,000 - 15,000). 26. 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** **MACA.No.2277 OF 2013(C)** -13- **[(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. 27. 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. 28. In the instant case, as on the date of accident, the **MACA.No.2277 OF 2013(C)** -14- appellant was aged 47 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 **13** applied by the Tribunal is correct and proper. 29. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,41,960/- (3,500 x 12 x 13 x 26/100). Since the monthly income of the appellant is re-fixed notionally as Rs.6,500/-, applying the multiplier of 13 applicable to the age group of the appellant and taking 40% permanent disability as assessed by the Medical Board in the certificate dated 09.01.2020, the compensation under the head permanent disability is re-fixed as Rs.4,05,600/- (6,500 x 12 x 13 x 40/100), resulting an additional compensation of **Rs.2,63,640/-** (4,05,600 - 1,41,960). 30. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. In the disability certificate dated 09.01.2020, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 40% by the Medical Board. Considering the nature of injuries sustained and 40% permanent whole body disability on account of those injuries, as assessed by the Medical **MACA.No.2277 OF 2013(C)** -15- Board, the compensation awarded by the Tribunal under this head is re-fixed as Rs.40,000/-, resulting an additional compensation of **Rs.30,000/-** (40,000 - 10,000). 31. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.3,31,340/-** (Rupees three lakh thirty one thousand three hundred and forty only) [20,500 + 2,400 + 4,300 + 500 + 10,000 + 2,63,640 + 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. 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 shall submit his Bank account details (attested copy of the relevant **MACA.No.2277 OF 2013(C)** -16- 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** bpr