Latha v. Althaf, Sulikha Manov, The Manager, National Insurance Co. Ltd., Pradeep P. Gopinath and Branch Manager, United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** **MACA.No.670 OF 2010** **AGAINST THE AWARD IN OPMV 585/2004 DATED 10-06-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/PETITIONER :** **LATHA, AGED 28 YEARS, W/O.REJI PARUTHA VEEDU,KANNIMANGALAM KARA, AYYAMPUZHA VILLAGE, ALUVA THALUK, ERNAKULAM.** **BY ADVS. SRI.K.S.ARUN KUMAR SMT.MAYA ANTHARJANAM** ## **RESPONDENTS/RESPONDENTS :** - **1 ALTHAF, SULIKHA MANOV, 1876/49, EDAPPLILLY ERNAKULAM DISTRICT.** - **2 BABU, S/O.SANKU, PULIYETHARA VEEDU KOTHAKULANGARA KARA, ANGAMALY VILLAGE, ERNAKULAM DISTRICT.** - **3 THE MANAGER, THE NATIONAL INSURANCE CO.LTD.,URUMBATH BUILDING, PUMP JUNCTION,ALUVA.** - **4 PRADEEP.P.GOPINATHAN, “SURYA”, 1/124 NORTH PAPRAVOOR,ERNAKULAM DISTRICT.** - **5 THE BRANCH MANAGER, UNITED INDIA INSURANCED CO.LTD.,'SHARANYA',HOSPITAL ROAD,, COCHIN. R1, R3 BY ADV. SMT.DEEPA GEORGE R1 BY ADV. SRI.M.A.GEORGE R1 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.670 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.585 of 2004 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained on a motor accident, which occurred on 09.09.2003, while she was travelling on a motorcycle bearing registration No.KL-07/AG-5723, as pillion rider. At the place of accident, the motorcycle was hit by a car bearing registration No.KBF-8986 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. Respondents 4 and 5 are the owner and insurer respectively, of the motorcycle on which the appellant/claimant was the pillion rider. As a result of the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the offending car by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,50,000/- under various heads. **MACA.No.670 OF 2010** **3** 2. Before the Tribunal, respondents 1, 2 and 4 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the offending car; however, denying the negligence alleged against the 2[nd] respondent driver. 3. The 5[th] respondent insurer of the motorcycle filed written statement contending that the policy issued to the motorcycle was a liability only policy. Even assuming that there was negligence on the part of the rider of the motorcycle, the claimant being a pillion rider and gratuitous passenger on the motorcycle, is not entitled to get any compensation from the 5[th] respondent. 4. Before the Tribunal, Exts.A1 to A13 were marked and PWs.1 to 3 were examined on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary 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 car by the 2[nd] respondent driver. Since insurance **MACA.No.670 OF 2010** **4** coverage of the offending car is not in dispute, the 3[rd] respondent insurer was held liable to indemnify the 1[st] respondent insured. 6. Under various heads, the Tribunal awarded a total compensation of Rs.1,31,559/-, which was rounded off to Rs.1,31,600/-, and the 3[rd] respondent insurer was directed to satisfy the award, with interest at the rate of 8% per annum from the date of application till realisation, within 30 days from the date of award. The insurer was directed to produce a cheque for Rs.2,873/- in the name of the Tribunal towards court fee and to produce another cheque for the balance amount in the name of the claimant for disbursement, failing which, the claimant was allowed to realise the amount by executing the award. On such production, the claimant was permitted to withdraw Rs.75,000/- since he has incurred around Rs.61,000/towards treatment expenses and the rest of the amount was directed to be deposited in the bank for three years. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before **MACA.No.670 OF 2010** **5** this Court in this appeal. 8. Heard the learned counsel for the appellant/ claimant, the learned Standing Counsel for the 3[rd] respondent insurer of the offending car and also the learned Standing Counsel for the 5[th] respondent insurer of the motorcycle. Since the insurance coverage of the offending vehicle is admitted by the 3[rd] respondent insurer, service of notice on the 4[th] respondent was dispensed with by the order of this Court dated 10.10.2019 in C.M.Application No.862 of 2010. 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 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 **MACA.No.670 OF 2010** **6** 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 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.670 OF 2010** **7** ## 12. In the instant case, the compensation awarded by the Tribunal under different heads reads thus; |Loss of earnings||Rs.7,500/-| |---|---|---| |Treatment expenses||Rs.61,159/-| |Transportation expenses||Rs.1,000/-| |Pain and sufferings||Rs.20,000/-| |Loss of amenities||Rs.6,000/-| |Damage to clothings||Rs.500/-| |Attendant's charges||Rs.1,500/-| |Extra nourishment||Rs.1,500/-| |Disability||Rs.32,400/-| |Total||Rs.1,31,559/-| |||| 13. The accident occurred on 09.09.2003. At the time of accident, the appellant was aged 28 years. She claimed a monthly income of Rs.4,500/- as a Tailor. The appellant produced Ext.A12 salary certificate from 'Your own Fancy & Ladies Tailoring', Kalady. The Proprietor of the said firm was examined as PW1. He deposed that the appellant had worked in his shop for the period from 28.02.2002 to 07.09.2003 and that, after the accident, she could not do the work. Since Ext.A12 was not supported by any other document and PW1 has also not produced the wage register or voucher for payment of wages to the workers of the firm, the Tribunal fixed the monthly income of the appellant **MACA.No.670 OF 2010** **8** 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 determine the possible income by resorting to **MACA.No.670 OF 2010** **9** 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, the accident occurred on 09.09.2003. At the time of accident, the appellant was aged 28 years. She claimed a monthly income of Rs.4,500/- as a **MACA.No.670 OF 2010** ## **10** Tailor. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2003, 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.4,000/-, for the purpose of assessing compensation under different heads. 17. Immediately after the accident, the appellant was taken to St.James Hospital, Chalakkudy. Ext.A6 is the wound certificate and Ext.A10 is the treatment certificate issued from the said hospital. Ext.A10 shows that the appellant had undergone inpatient treatment in three different spells, i.e., for the period from 09.09.2003 to 09.10.2003; from 21.10.2003 to 24.10.2003; and from 09.04.2006 to 11.04.2006. As per medical records, the appellant had sustained closed fracture shaft right femur, Grade II B open fracture medial malleolus (R), fracture intercondylar eminence (L) proximal tibia, fracture P1(E) 2[nd] toe and 5[th] toe and degloving injury with skin loss dorsomedial aspect **MACA.No.670 OF 2010** **11** right foot and ankle. 18. Ext.A8 is the disability certificate issued by the District Medical Officer of Health, Ernakulam, who was examined as PW2, and Ext.A11 is the disability certificate issued from St.James Hospital. Though the disability of the appellant was certified as 10% in both certificates, during cross examination, PWs.2 and 3, who had issued those certificates, admitted the fact that in Exts.A8 and A11 disability certificates it has not been specifically stated that the disability certified is whole body disability. The Tribunal, considering the nature of injuries sustained by the appellant and her limitation in movements, took the percentage of whole body disability as 6%, for the purpose of awarding compensation under various heads. 19. Ext.A8 disability certificate is one issued by the District Medical Board, Ernakulam, in which the percentage of permanent partial disability is assessed as 10%. PW3 is one among the doctors who examined the appellant. He has deposed that the appellant is suffering from shortening of leg and limitation of movements of right hip and right ankle. **MACA.No.670 OF 2010** **12** In Ext.A11 disability certificate issued by PW2, the percentage of permanent disability is assessed as 10%. PW2 has deposed about the following disabilities of the appellant, noted in Ext.A11; 1. Partial ankylosis right hip range of movement 90 degree flexion, 25% each of abduction/extension and 15 degree adduction/internal rotation. 2. Shortening of right lower limb by half inch. 3. Partial ankylosis right ankle and foot with range of movement 20 degree inversion/adduction to 10 degree eversion/adduction. 4. Right knee range of movement 180 degree-110 degree flexion. Having considered the oral and documentary evidence on record, and taking note of the fact that, at the time of accident, the appellant was working as a tailor in the shop of PW1, this Court finds that for the purpose of assessing compensation under various heads, the permanent disability of the appellant can be taken as 10% as certified in Exts.A8 and A11. Therefore, the appellant will be entitled for disability compensation and loss of amenities, taking the percentage of permanent disability as 10%. 20. Towards loss of earning, the Tribunal awarded a **MACA.No.670 OF 2010** **13** sum of Rs.7,500/-, at the rate of Rs.2,500/- 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, this Court deem it appropriate to re-fix the period for loss of earnings as 5 months. 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.20,000/- (4,000x5), resulting an additional compensation of **Rs.12,500/-** (20,000-7,500). 21. Towards transportation expenses, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the appellant had undergone inpatient treatment for three different spells, the compensation under this head is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs.2,000/-** (3,000-1,000). 22. Towards extra nourishment, the Tribunal awarded a sum of Rs.1,500/-. 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 is re-fixed as **MACA.No.670 OF 2010** **14** Rs.3,600/- (100x36), resulting an additional compensation of **Rs.2,100/-** (3,600-1,500). 23. The Tribunal awarded an amount of Rs.1,500/towards attendant charges. Considering the fact that the appellant had undergone inpatient treatment for a period of 36 days during different spells, this Court deem it appropriate to re-fix the compensation under this head as Rs.5,400/- (150x36), resulting an additional compensation of **Rs.3,900/-** (5,400-1,500). 24. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2003, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000-500). 25. Towards treatment expenses, the Tribunal awarded a sum of Rs.61,159/-, covered by Ext.A13 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. **MACA.No.670 OF 2010** **15** 26. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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. 27. Towards loss of amenities the Tribunal awarded a sum of Rs.6,000/-. Considering the nature of injuries sustained and 10% permanent disability, on account of the injuries sustained, as certified in Exts.A8 and A11 disability certificates, the compensation awarded by the Tribunal under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.9,000/-** (15,000-6,000). 28. 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** **MACA.No.670 OF 2010** **16** **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. 29. 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. **MACA.No.670 OF 2010** **17** 30. In the instant case, as on the date of accident, the appellant was aged 28 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** . 31. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.32,400/- (2,500x12x18x 6/100). Since the monthly income of the appellant is refixed notionally as Rs.4,000/-, adopting the proper multiplier of 17 and a permanent disability as 10%, the compensation under this head is re-fixed as Rs.81,600/(4,000x12x17x10/100), resulting an additional compensation of **Rs.49,200/-** (81,600-32,400). 32. In the result, the appellant will be entitled for an additional compensation of **Rs.79,200/-** (Rupees Seventy nine thousand and two hundred only) [12,500+2,000+ 2,100+3,900+500+9,000+49,200] 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 **MACA.No.670 OF 2010** **18** 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. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/29/10