MACA Nos.1201 of 2012 & 2426 of 2012, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 31ST DAY OF JANUARY 2020 / 11TH MAGHA, 1941** ## **MACA.No.1201 OF 2012** **AGAINST THE AWARD IN O.P.(MV)NO.1151/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/3RD RESPONDENT IN O.P(MV)NO.1151/10:** **THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., KOLLAM REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** **RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 2 IN O.P(MV) NO.1151/10:** - **1 RAHIM, AGED 48 YEARS, S/O.ALIYARUKUNJU, KUNJINADI KULATHINTE VADAKKATHIL, MEMANA, OACHIRA-690 526.** - **2 M.P.JOLLY, AUDIT MANAGER, M/S.MENON AND ASSOCIATES CORPORATION SHOPPING COMPLEX, BROADWAY, ERNAKULAM-682 011.** - **3 ARUN PRASAD, S/O.N.K.RAGHAVAN PILLAI, ARUNALAYAM, NELLIYATTUKONAM, PANGODU VILLAGE, THIRUVANANTHAPURAM-695 609.** - **R1 BY ADV. SMT.BINDU GEORGE R1 BY ADV. SRI.SIJU KAMALASANAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2020, ALONG WITH MACA.2426/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.1201 & 2426 OF 2012** -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 31ST DAY OF JANUARY 2020 / 11TH MAGHA, 1941** **MACA.No.2426 OF 2012** **AGAINST THE AWARD IN O.P.(MV)NO.1151/2010 DATED 25-02-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/PETITIONER:** **RAHIM, S/O. ALIYARU KUNJU, KUNJINADI KULATHINTE VADAKKATHIL, MEMANA, OACHIRA.** **BY ADVS. SRI.K.SIJU SMT.CHITHRA.S.BABU** ## **RESPONDENT/3RD RESPONDENT:** **THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD., KOLLAM-691 001.** **BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2020, ALONG WITH MACA.1201/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.1201 & 2426 OF 2012** -3- ## **JUDGMENT** These appeals arise out of the award passed by the Motor Accidents Claims Tribunal, Kollam dated 25.02.2012 in O.P.(MV) No.1151 of 2010. 2. MACA No.1201 of 2012 is filed by the 3[rd] respondent insurer in that claim petition, contending that, after awarding Rs.1,68,480/- towards disability compensation, the Tribunal went wrong in awarding a further sum of Rs.56,100/- towards loss/reduction in earning capacity. 3. MACA No.2426 of 2012 is filed by the claimant, contending that the compensation awarded by the Tribunal under various heads are on the lower side. 4. Since common issues are raised, these appeals are head together and are disposed of by this common judgment. Parties are referred to in this judgment, as they appear in MACA No.2426 of 2012. 5. The appellant is the claimant in O.P.(MV) No.1151 of 2010, 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 **MACA.Nos.1201 & 2426 OF 2012** -4- on 01.04.2010 while he was travelling on a motorcycle bearing registration No.KL-29/4176. At the place of accident, the motorcycle was hit by a maruti car bearing registration No.KL7/AJ-628, owned by the 1[st] respondent, driven 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 driving of the maruti car by the 2[nd ] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/under various heads. 6. Before the Tribunal, the 1[st] respondent owner of the Maruti Car remained absent and he was set ex-parte. The 2[nd] respondent driver filed written statement admitting the accident; however, denying negligence alleged against him. The 2[nd] respondent contended that the accident occurred due to the negligence of the appellant in riding the motorcycle. 7. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the maruti car involved in the accident; however, denying the negligence alleged against the 2[nd] respondent driver. The insurer disputed the age, **MACA.Nos.1201 & 2426 OF 2012** -5- occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 8. Before the Tribunal, Exts.A1 to A21 were marked on the side of the appellant/claimant and he was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. 9. 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 maruti car 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.3,93,765/-, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 20.10.2010 till realisation, with a cost of Rs.5,000/-. 10. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent insurer (appellant in MACA No.1201 of **MACA.Nos.1201 & 2426 OF 2012** -6- 2012). 11. The issue that arises for consideration in these appeals is as to whether the compensation awarded by the Tribunal under various heads represents just and reasonable compensation. 12. 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. 13. 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, **MACA.Nos.1201 & 2426 OF 2012** -7- 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. 14. 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>(in Rupees)|Amount<br>awarded<br>(in Rupees)|Basis-vital details in<br>a nutshell| |---|---|---|---|---| |1|Loss of earning (Total)|1,00,000/-|36,000/-|6000 x 6| |2|Loss of earning (partial)||Nil|| |3|Medical and miscellaneous<br>expenses|30,000/-|30,000/-|Ext.A16 series bills<br>produced| |4|Future treatment||40,000/-|| |5|Bystander expenses|10,000/-|3,125/-|25 x 125| |6|Transportation expenses|10,000/-|3,000/-|| |7|Extra nourishment|5,000/-|2,000/-|| |8|Damage to cloth and articles|3,000/-|Nil|| |9|Pain and suffering|30,000/-|30,000/-|| |10|Compensation for continuing<br>for permanent disability||1,68,480/-|6000 x 12 x 18 x<br>13/100| |11|Loss/reduction in earning<br>capacity (Col.Nos.10 + 11)|3,07,000/-|56,160/-|1/3rdof disability| **MACA.Nos.1201 & 2426 OF 2012** -8- |12|Any other heads-loss of<br>amenities<br>in<br>life<br>(disfiguration)|5,000/-|25,000/-|| |---|---|---|---|---| ||**Total**|**Rs.5,00,000/-**|Rs.3,93,765/-<br>rounded as<br>**Rs.3,94,000/-**<br>(Rupees three<br>lakhs and ninety<br>four thousand<br>only)|| 15. The accident occurred on 01.04.2010. At the time of accident, the appellant was aged 48 years. He claimed a monthly income of Rs.10,000/- as Electrical Engineer. Other than the documents to prove qualification, no materials were produced before the Tribunal to prove his monthly income. The appellant was examined as PW1. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.6,000/-, for the purpose of assessing compensation under various heads. 16. 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 **MACA.Nos.1201 & 2426 OF 2012** -9- 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. 17. 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 **MACA.Nos.1201 & 2426 OF 2012** -10- 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. 18. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2010, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra and also the evidence of PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.7,750/-, for the purpose of assessing compensation under various heads. 19. The document marked as Ext.A7 is the wound certificate and Exts.A8 to A10 are the discharge cards. As per medical records, in the accident, the appellant had sustained crush injury dorsum; X-ray showed fracture of 2[nd] , 3[rd] and 4[th] meta tarsal right foot; abrasion left leg; and multiple arasion **MACA.Nos.1201 & 2426 OF 2012** -11- both forearm, left wrist. He had undergone inpatient treatment for a period of 25 days. Ext.A16 series of medical bills are for a sum of Rs.29,194/- and the Tribunal granted a sum of Rs.30,000/- towards medical and miscellaneous expenses. 20. The document marked as Ext.A21 is the disability certificate issued by the Medical Board at the Medical College Hospital, Thiruvananthapuram, in which the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident, is assessed as 18%. The Tribunal accepted the said percentage of disability, for the purpose of awarding compensation under various heads. 21. Towards loss of earning, the Tribunal awarded a sum of Rs.36,000/-, at the rate of Rs.6,000/- for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is re-fixed as 7 months. Since the monthly income of the appellant is re-fixed notionally as Rs.7,750/-, the compensation under the head loss of earning **MACA.Nos.1201 & 2426 OF 2012** -12- is re-fixed as Rs.54,250/- (7,750 x 7), resulting an additional compensation of **Rs.18,250/-** (54,250 - 36,000). 22. Towards bystander expenses the Tribunal awarded a sum of Rs.3,125/- (125 x 25). Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2010 and the appellant had undergone inpatient treatment for 25 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.5,000/- (200 x 25), resulting an additional compensation of **Rs.1,875/-** (5,000 - 3,125). The compensation under the head extra nourishment is re-fixed as Rs.3,750/- (150 x 25), resulting an additional compensation of **Rs.1,750/-** (3,750 - 2,000). 23. The Tribunal awarded no compensation towards damage to cloth and articles. Considering the fact that the accident is of the year 2010, this Court deem it appropriate to grant a sum of **Rs.1,000/-** . 24. Towards medical expenses, the Tribunal awarded a **MACA.Nos.1201 & 2426 OF 2012** -13- sum of Rs.30,000/-, covered by Ext.A16 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 these appeals. 25. Towards future treatment, the Tribunal awarded a sum of Rs.40,000/-. Considering the nature of injuries sustained and the treatment the claimant 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. 26. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. 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. In **Sarla Verma v. Delhi Transport Corporation** **MACA.Nos.1201 & 2426 OF 2012** -14- **[(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 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. 28. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the **MACA.Nos.1201 & 2426 OF 2012** -15- 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. 29. In the instant case, as on the date of accident, the appellant was aged 48 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. 30. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,68,480/- (6,000 x 12 x 13 x 18/100). Since the monthly income of the appellant is re-fixed notionally as Rs.7,750/-, applying the multiplier of 13 applicable to the age group of the appellant and the percentage of permanent disability as 18%, the compensation under the head permanent disability is re-fixed as Rs.2,17,620/- (7,750 x 12 x 13 x 18/100), resulting an additional compensation of **Rs.49,140/-** (2,17,620 - 1,68,480). 31. After awarding the compensation under the head **MACA.Nos.1201 & 2426 OF 2012** -16- permanent disability, the Tribunal awarded a further sum of Rs.56,160/- under the head loss/reduction in earning capacity. The compensation awarded by the Tribunal under the said head is under challenge in MACA No.1201 of 2012. Once compensation is awarded under the head permanent disability, taking the monthly income of the appellant as on the date of accident, applying the multiplier applicable to his age group and the percentage of permanent disability, he is not entitled for award of further compensation under the head loss/reduction in earning capacity. Therefore, the compensation of Rs.56,160/- awarded by the Tribunal under the above head cannot be sustained, resulting an **excess payment** of **Rs.56,160/-** , which has to be deducted from the additional compensation granted in MACA No.2426 of 2012. 32. Towards loss of amenities, the Tribunal awarded a sum of Rs.25,000/-. In Ext.A21 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 18%. Considering the nature of injuries sustained and 18% permanent disability on account of those injuries, as assessed **MACA.Nos.1201 & 2426 OF 2012** -17- in Ext.A21 disability certificate, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in these appeals. 33. In the result, the appellant/claimant in MACA No.2426 of 2012 will be entitled for payment of an additional compensation of **Rs.15,855/-** (Rupees fifteen thousand eight hundred and fifty five only) [(18,250 + 1,875 + 1,750 + 1,000 + 49,140) - 56,160], which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] respondent insurer (appellant in MACA No.1201 of 2012) shall satisfy the additional compensation granted in these appeals, 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. **MACA.Nos.1201 & 2426 OF 2012** -18- The appellant in MACA No.2426 of 2012 shall submit 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. These appeals are disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr