MACA.No.2404 OF 2008 AGAINST THE AWARD IN OPMV 1515/2004 DATED 16-01-2008 OF I ADDITIONAL DISTRICT COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 11TH DAY OF OCTOBER 2019 / 19TH ASWINA, 1941** ## **MACA.No.2404 OF 2008** **AGAINST THE AWARD IN OPMV 1515/2004 DATED 16-01-2008 OF I ADDITIONAL DISTRICT COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/PETITIONER IN THE O.P.:** **ANOOP, S/O.LATE SOBHANA KUMARIAMMA CHAITHANYA, THAZHOM WEST, CHATHANNOOR, KOLLAM DISTRICT.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENTS/RESPONDENTS IN THE O.P.:** - **1 DEVARAJAN PILLAI, THAYYILAZHIKOM, KURUMANDAL, PARAVOOR.** - **2 UNNILAL.A, KALLUVILA VEEDU MEENADU ESTATE, CHATHANNOOR.** - **3 THE ORIENTAL INSURANCE COMPANY LIMITED KOLLAM.** - **4 P.SANTHOSH KUMAR, KUDAMTHARA KIZHAKKATHIL, THAZHAM, CHATHANNOOR.** **R1 BY ADVS. SRI.GEORGE CHERIAN THIRUVALLA SMT K.S.SANTHI- STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2404 OF 2008** 2 ## **JUDGMENT** Appellant is the claimant in O.P.(MV) No.1515 of 2004 on the file of the First Additional Motor Accidents Claims Tribunal, Kollam, 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 17.10.2004 while he was traveling in an autorickshaw bearing registration No.KL-02/2156. At the place of accident the autorickshaw was hit by a bus bearing registration No.KL-04/C-6174, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. The 4[th] respondent is the owner of the Autorickshaw. Alleging that the accident occurred due to the rash and negligent driving of bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.10 lakhs, under various heads. 2. Before the Tribunal respondents 1 and 2 remained absent and they were set exparte. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the offending bus. The age, income, injuries, etc. stated in the claim petition were denied. 3. Before the Tribunal, Exts.A1 to A9 documents were marked on the side of the appellant/claimant. Both sides have also not chosen to adduce any oral evidence. **MACA.No.2404 OF 2008** 3 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 bus by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.39,638/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation and directed the 3[rd] respondent insurer to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/claimant and the learned Standing Counsel appearing for the 3[rd] respondent insurer. 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 **MACA.No.2404 OF 2008** 4 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. 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 **MACA.No.2404 OF 2008** 5 ## Tribunal under different heads reads thus: Part – I |---------<br>Loss of earning<br>Transportation to the hospital<br>Extra nourishment and expenses for bystander<br>Damage to cloths<br>Expenses for medicine<br>(Ext.A9 series)<br>Part – II<br>----------<br>Compensation for paid and suffering<br>Compensation for physical discomfort<br>(1334*12*16*5/100)<br>Total|NIL<br>Rs.1000/-<br>Rs.2500/-<br>Rs.500/-<br>Rs.10832/-<br>Rs.12,000/-<br>Rs.12,806/-<br>Rs.39,638/-| |---|---| 11. The accident occurred on 17.10.2004. At the time of accident, the appellant was aged 18 years and he was a B.Tech student. He claimed a monthly income of Rs.2,000/- for the purpose of awarding compensation under the head permanent disability. 12. The document marked as Ext.A4 is a copy of the wound certificate issued from Holy Cross Hospital, Kottayam, which would show that the appellant, who was aged 18 years, was admitted in that hospital on account of the injuries sustained in the motor accident. There was bleeding from his nose. As per Ext.A5 discharge summary issued from Medical College Hospital, **MACA.No.2404 OF 2008** 6 Thiruvananthapuram, there was left fronto temporal EDH (Epidural Hematome). As can be seen from Ext.A5, the appellant had undergone inpatient treatment at Medical College Hospital, Thiruvananthapuram for the period from 17.10.2004 to 07.11.2004 and he had undergone a surgery on 17.10.2004 for left fronto temporal craniotomy a evaloation of EDH. The report of the CT Scan is marked as Ext.A6. Ext.A9 series are the medical bills for a sum of Rs.10,832/-. The Tribunal found that as per medical records, the appellant sustained head injuries, causing very complicated internal injuries and that, he had undergone continuous treatment under Neurosurgery Department. 13. In the claim petition, the appellant claimed a monthly income of Rs.2,000/- for the purpose of assessing compensation under various heads. For the purpose of assessing compensation for physical discomfort (disability compensation), the Tribunal took the multiplicand as Rs.1,334/-; percentage of disability as 5%; and the multiplier as 16. 14. Considering the fact that the accident is of the year 2004, the monthly income of the appellant, for the purpose of awarding compensation under the head permanent disability can be taken as Rs.2,000/- as claimed in the claim petition. **MACA.No.2404 OF 2008** 7 15. 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 [(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. 16. 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 **MACA.No.2404 OF 2008** 8 of **Sarla Verma** , read with paragraph 42 of the said judgment. 17. In the instant case, as on the date of accident, the appellant was aged 18 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 16 applied by the Tribunal is not correct and and the proper multiplier to be applied is **18** . 18. Towards compensation for physical discomfort, the Tribunal awarded a sum of Rs.12,806/- (1,334 x 12 x 16 x 5/100). Since the monthly income of the appellant is re-fixed notionally as Rs.2,000/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 5%, the compensation under the head physical discomfort is re-fixed as Rs.21,600/- (Rs.2,000 x 12 x 18 x 5/100) resulting an additional compensation of **Rs.8,794/-** (21,600-12,806). 19. Towards bystander expenses and extra nourishment, the Tribunal awarded a sum of Rs.2,500/-. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 23 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.3,450/- (150 x 23) and the compensation under the head extra **MACA.No.2404 OF 2008** 9 nourishment is re-fixed as Rs.2,300/- (100 x 23), resulting an additional compensation of **Rs.3,250/-** [(3,450 + 2,300) - 2500]. 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2004, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 21. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 23 days. 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, 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 medical expenses, the Tribunal awarded a sum of Rs.10,832/-, covered by Ext.A9 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. 23. As compensation towards pain and suffering, the Tribunal **MACA.No.2404 OF 2008** 10 awarded a sum of Rs.12,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, which includes a surgery, the compensation under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.3,000/-** (15,000 – 12,000). 24. Towards loss of amenities no amount has been granted by the Tribunal. Considering the nature of injuries sustained and the percentage of disability fixed by the Tribunal as 5% for the purpose of awarding compensation, this Court deem it appropriate to grant a sum of **Rs.5,000/-** as compensation under the head loss of amenities. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.20,294/-** (Rupees twenty three thousand and forty four only) (8,794 + 3,250 + 250 + 3,000 + 5,000) in this appeal, which will carry interest at the rate of 8% per annum, from the date of petition till the date of 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 **MACA.No.2404 OF 2008** 11 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** jv