M. Asharaf v. K.A. Sreenivasan and New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **MACA.No.2724 OF 2008** **AGAINST THE AWARD IN OP(MV)NO.3183/2002 DATED 29-10-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** **M.F.ASHARAF AGED 28 YEARS S/O MANAKKAPARAMBIL SAIDALI, OTHALLOOR PO., KIZHIKKARA, MALAPPURAM DISTRICT** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS:** **1 K.A.SREENIVASAN S/O KATTAMBIL APPU, KOTTAPADI PO., POOKODU VILLAGE, THRISSUR.** **2 NEW INDIA ASSURANCE CO.LTD. DIVISIONAL OFFICE, THRISSUR.** ## **R2 BY SRI A.A.ZIYAD RAHMAN-STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2724 of 2008 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.3183 of 2002 on the file of the Motor Accidents Claims Tribunal, Thrissur, 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 23.02.2002, while he was riding a motorcycle bearing registration No.KL-10/H-9518. At the place of accident, the motorcycle was hit by a bus bearing registration No.KBR-2869 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant rider and also the pillion rider sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of bus by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cumdriver of the bus remained absent and he was set ex parte. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the bus involved in the accident; however, denying the negligence alleged against its driver. The MACA No.2724 of 2008 3 insurer contended that the accident occurred due to the negligence on the part of the appellant/claimant. 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, the claim petition was tried along with connected matter. Exts.A1 to A18 were marked on the side of the claimants. 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 bus by its 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.73,650/-, together with interest at the rate of 7% per annum from 29.11.2002 till date of deposit, with proportionate cost, and 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 MACA No.2724 of 2008 4 appeal. 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 2[nd] 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 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** MACA No.2724 of 2008 5 **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. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |al under various heads reads thus;|| |---|---| |Loss of earning|8,000| |Expense for transportation|1,500| |Expense for extra nourishment|1,000| |Damages to clothing|500| |Expense for treatment|32,250| |Expense for bystander|1,400| |Compensation for pain and suffering|15,000| |Compensation for loss of amenities|8,000| |Compensation for discomfiture|6,000| ||**73,650**| 12. The accident occurred on 23.02.2002. At the time of MACA No.2724 of 2008 6 accident, the appellant was aged 25 years. The appellant claimed a monthly income of Rs.4,000/- as driver. No reliable 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.2,000/-, for the purpose of assessing compensation under 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 MACA No.2724 of 2008 7 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. 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 MACA No.2724 of 2008 8 economic conditions prevailing at the time of accident, i.e., during the year 2002, 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.3,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A9 is the discharge card. As per medical records, in the accident, the appellant sustained type III compound comminuted fracture both bone right leg, sub condylar fracture left side mandible and other injuries all over the body. He had undergone inpatient treatment for a period of 16 days. Ext.A12 series of medical bills are for a sum of Rs.32,242/-. 17. The document marked as Ext.A10 is the discharge certificate issued by a Consultant Orthopaedic Surgeon in Royal Hospital, where the appellant had undergone inpatient treatment. In Ext.A10, the permanent disability of the appellant, on account of the injuries sustained in the accident is assessed as 5%. The appellant has not chosen to prove Ext.A10 by examining the doctor concerned. Therefore, the Tribunal awarded Rs.6,000/under the head compensation for discomfiture. MACA No.2724 of 2008 9 18. As per Ext.A10 disability certificate the fracture has united with mild displacement and collapse. The range of motion in the knee and ankle are full. The appellant complained of pain right leg on squatting, climbing staircase, and on brisk walking. Therefore, permanent partial disability of 5% of right lower limb was assessed in Ext.A10. The Tribunal did not accept the assessment of disability in Ext.A10. Considering the fact that the fracture has united with mild displacement and collapse, this Court deem it appropriate to take the percentage of permanent disability as 3%, for the purpose of awarding compensation under various heads. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.8,000/-, at the rate of Rs.2,000/- 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 re-fixed as 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, the compensation under the head loss of earning is re-fixed as Rs.17,500/- (3,500 x 5), resulting an additional compensation of **Rs.9,500/-** MACA No.2724 of 2008 10 (17,500 – 8,000). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 16 days. The accident is of the year 2002. Towards transportation to hospital, 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 under this head is re-fixed as Rs.2,500/-, resulting an additional compensation of **Rs.1,000/-** (2,500 – 1,500). 21. Towards bystander expenses the Tribunal awarded a sum of Rs.1,400/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2002 and the appellant had undergone inpatient treatment for 16 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.2,400/- (150 x 16), resulting an additional compensation of **Rs.1,000/-** (2,400 - 1,400). The compensation under the head extra nourishment is re-fixed as Rs.1,600/- (100 x 16), resulting an additional compensation of **Rs.600/-** (1,600 – MACA No.2724 of 2008 11 1,000). 22. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2002, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 23. Towards medical expenses, the Tribunal awarded a sum of Rs.32,250/-, covered by Ext.A12 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. 24. 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.20,000/-, resulting an additional compensation of **Rs.5,000/-** (20,000 – 15,000). 25. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier MACA No.2724 of 2008 12 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 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. 26. 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 MACA No.2724 of 2008 13 in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 27. In the instant case, as on the date of accident, the appellant was aged 25 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 proper multiplier to be applied is **18** . 28. Instead of granting compensation for permanent disability, the Tribunal awarded a sum of Rs.6,000/- under the head discomfiture. Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 3%, the appellant is granted a sum of Rs.22,680/- (3,500 x 12 x 18 x 3/100) as compensation under the head permanent disability. Deducting Rs.6,000/- awarded by the Tribunal under the head discomfiture, the appellant will be entailed for a sum of **Rs.16,680/-** (22,680 – 6,000) under the head permanent disability. 29. Towards loss of amenities the Tribunal awarded a sum of Rs.8,000/-. Considering the nature of injuries sustained and 3% permanent disability on account of those injuries, as taken by this MACA No.2724 of 2008 14 Court, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.34,030/-** (Rupees thirty four thousand and thirty only) (9,500 + 1,000 + 1,000 + 600 + 250 + 5,000 + 16,680) in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 258 days in filing this appeal, which was condoned by the order dated 25.02.2020, subject to the condition that in case enhanced compensation is granted in this appeal, the appellants shall not be entitled for interest on the said amount for the period of delay. The 2[nd] 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 MACA No.2724 of 2008 15 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 provide his Bank account details (attested copy of the relevant 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** JV