MACA.No.2800 of 2008 (V.K. Sugathan v. Thankachan; Abdulkhader Bagath House; Divisional Manager Oriental Insurance Co. Ltd.)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 13TH DAY OF DECEMBER 2019 / 22ND AGRAHAYANA, 1941** ## **MACA.No.2800 OF 2008** **AGAINST THE AWARD IN OP(MV) No. 808/2003 DATED 15-05-2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM** ## **APPELLANT/S:** **V.K.SUGATHAN S/O.LATE V.P.KUNJUNJU, LAKSHMI VIHAR, PERUMPANACHI PO., THENGANA,, CHANGANACHERRY.** **BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** ## **RESPONDENT/S:** |**1**|**THANKACHAN @ THANKACHAN**| |---|---| ||**ENPARAMBIL HOUSE,, MOOLAMKULAM, NATTAKOM PO.,**| ||**KOTTAYAM.**| |**2**|**ABDULKHADER BAGATH HOUSE**| ||**KOTTENKULANGARA PO., KOTTANKULANGARA,,**| ||**ALAPPUZHA.**| |**3**|**DIVISIONAL MANAGER ORIENTAL**| ||**INSURANCE CO.LTD.,, BAKER JN., KOTTAYAM.**| ## **OTHER PRESENT:** **SMT K.S.SANTHI - STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2019, ALONG WITH MACA.2958/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 2800 of 2008 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.808 of 2003 on the file of the Motor Accidents Claims Tribunal, Kottayam, 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 07.09.2003, while he was travelling in a Maruthi car bearing registration No.KL-5/G-6262. At the place of accident, the said vehicle was hit by an ambassador car bearing registration No.KL-4/B-7273, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant and also the driver of the ambassador car sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the ambassador car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/- under various heads. The appellant was arrayed as the 1[st] respondent in O.P(MV) No.1302 of 2002 filed by the 1[st] respondent driver claiming compensation for the injuries sustained by him. -3- MACA. No. 2800 of 2008 2. Before the Tribunal, respondents 1 and 3 filed written statement. The 2[nd] respondent remained absent, who was set ex parte. In the written statement, the 1[st] respondent contended that the accident occurred solely due to rash and negligent driving of maruthi car by the appellant and hence, the appellant is not entitled to get any compensation. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of ambassador car involved in the accident. The insurer contended that the accident occurred due to negligence of both the drivers and they were not entitled to get any compensation. 4. Before the Tribunal, O.P(MV) No.808 of 2008 was tried along with O.P(MV) No.1302 of 2002 filed by the 1[st] respondent. Exts.A1 to A24(a) were marked on the side of the claimants and PW1 to PW5 were examined. Respondents have not chosen to adduce any documentary evidence. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the negligence of both the drivers, i.e., the appellant and the 1[st] respondent. Based on the said finding on -4- MACA. No. 2800 of 2008 contributory negligence, the Tribunal held that the appellant and also the 1[st] respondent are entitled to get only 50% of the compensation awarded in the respective claim petitions. In O.P(MV) No.808 of 2003, under various heads, the Tribunal awarded a total compensation of Rs.1,85,250/-. In view of the finding as to contributory negligence, the Tribunal held that the appellant is entitled only for a sum of Rs.92,625/- (50% of the total compensation) together with interest at the rate of 7% per annum from the date of petition, till realisation. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. The appellant has also challenged the finding of the Tribunal as to contributory negligence. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. 8. During the course of arguments, it is pointed out by the learned counsel for the appellant that challenging the finding of the Tribunal as to contributory negligence in the award in O.P(MV) No.1302 of 2002, the appellant, who was -5- MACA. No. 2800 of 2008 the 1[st] respondent before the Tribunal, filed MACA No.2958 of 2003, in which a Division Bench of this Court found no scope to interfere with the finding regarding 50% contributory negligence on the part of the drivers of both the vehicles. In view of the said judgment, the challenge made in this appeal against the finding as to contributory negligence, does not survive. 9. In view of the judgment of the Division Bench of this Court dated 14.01.2009 in M.A.C.A No.2958 of 2008, the only question that has to be decided in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded 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 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 -6- MACA. No. 2800 of 2008 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. 12. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; Pain and sufferings 25,000 -7- MACA. No. 2800 of 2008 |Loss of earning|15,000|(2,500 x 6)| |---|---|---| |Damage to clothing|500|| |Transportation expenses|3,000|| |Treatment expenses|67,250|| |Bystander's expenses|4,500|| |Extra nourishment|2,000|| |Disability compensation|48,000|(2,500x12x8x20/100)| 13. The accident occurred on 07.09.2003. At the time of accident, the appellant was aged 58 years. The appellant claimed a monthly income of Rs.25,000/- by conducting a Bar hotel. In order to substantiate the said contention, the appellant placed on record Ext.A22 Bar Licence; Ext.A23 balance sheet as on 31.03.2004. The appellant was also examined as PW1. The Tribunal took the monthly income 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 -8- MACA. No. 2800 of 2008 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. 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, -9- MACA. No. 2800 of 2008 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 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, the notional monthly income that can be normally fixed is Rs.4,000/-, for the purpose of assessing compensation under various heads. However, in the instant case, the appellant was running a bar hotel on the strength of Ext.A22 FL-3 licence. The said licence is in the name of the appellant. The monthly income of the appellant is not discernible from Ext.A23 balance sheet as on 31.03.2004. -10- MACA. No. 2800 of 2008 The appellant, who was examined as PW3 admitted that he was not an assessee of income tax. Having considered the pleadings and materials on record, this Court deem it appropriate re-fix the monthly income of the appellant as Rs.5,000/-. 17. The document marked as Ext.A19 is a disability certificate. The document marked as ext.A12 is the wound certificate. As per medical records, the appellant sustained contusion chest with abrasion, fracture left 7[th] and 8[th] ribs, fracture shaft of right femur and fracture right patella. Ext.A24 series of medical bills are for a sum of Rs.67,246.89 and Ext.A21 bills for Rs.22,750/- for the Ayurveda treatment. In the absence of any corroboration from the appellant, Ext.A21 was not accepted by the Tribunal. 18. As per Ext.A19 disability certificate issued by Dr.Salvin E.John, Lecturer in Orthopaedics, Pushpagiri Institute of Medical Science & Research Centre, the appellant was admitted in that hospital on 08.09.2001 with the above mentioned injuries. He was treated with upper tibial pinning right side, followed by closed interlocking nailing for fracture -11- MACA. No. 2800 of 2008 femur right and partial patallectomy right, quadriceps repair and plaster of paris cast immobilisation. The appellant had undergone inpatient treatment for a period of 62 days. In Ext.A19 certificate, the percentage of permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 20%. The Tribunal accepted the assessment of disability in Ext.A19, for the purpose of awarding compensation under various heads. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.15,000/-, at the rate of Rs.2,500/- per month 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 just and reasonable. Since the monthly income of the appellant is refixed notionally as Rs.5,000/-, the compensation under the head loss of earning is re-fixed as Rs.30,000/- (5,000 x 6), resulting an additional compensation of **Rs.15,000/-** (30,000 – 15,000). 20. On account of the injuries sustained in the -12- MACA. No. 2800 of 2008 accident, the appellant had undergone inpatient treatment for 62 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,000/-. 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. 21. Towards bystander expenses the Tribunal awarded a sum of Rs.4,500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2003 and the appellant had undergone inpatient treatment for 62 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.9,300/- (150 x 62), resulting an additional compensation of **Rs.4,800/-** (9,300 – 4,500). The compensation under the head extra nourishment is re-fixed as Rs.6,200/- (100 x 62), resulting an additional compensation of **Rs.4,200/-** (6,200 – 2,000). -13- MACA. No. 2800 of 2008 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 2003, 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.67,250/-, covered by Ext.A24 series of medical bills. In the absence of proof for medical expenses covered by Ext.A21 bills for Ayurvedic Treatment, 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.25,000/-. 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. 25. In **Sarla Verma v. Delhi Transport Corporation** -14- MACA. No. 2800 of 2008 **[(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. ## 26. In **National Insurance Company Ltd. v. Pranay** **Sethi [(2017) 16 SCC 680]** a Constitution Bench of the -15- MACA. No. 2800 of 2008 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. 27. In the instant case, as on the date of accident, the appellant was aged 58 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 8 applied by the Tribunal is not correct and and the proper multiplier to be applied is **9** . 28. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.48,000/- (2,500 x 12 x 8 x 20/100). Since the monthly income of the appellant is re-fixed notionally as Rs.5,000/-, applying the multiplier of 9 applicable to the age group of the appellant and the percentage of permanent disability as 20%, the compensation under the head permanent disability is re-fixed as Rs.1,08,000/- (5,000 x 12 x 9 x 20/100), resulting an additional compensation of **Rs.60,000/-** (1,08,000 – 60,000). -16- MACA. No. 2800 of 2008 29. Towards loss of amenities, no amount has been awarded by the Tribunal. In Ext.A19 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 20%. Considering the nature of injuries sustained and the permanent disability assessed in Ext.A19 disability certificate, this Court deem it appropriate to grant a sum of **Rs.20,000/-** under this head. 30. In the result, the additional compensation comes to Rs.1,04,250/- [15,000 + 4,800 + 4,200 + 250 + 60,000 + 20,000]. In view of the finding as to contributory negligence, the appellant/claimant is entitled for payment of only 50% of the additional compensation, i.e. **Rs.52,125/-** (Rupees fifty two thousand one hundred and twenty five only) 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 said amount, 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 -17- MACA. No. 2800 of 2008 Benefit Fund. The disbursement of the amount to the appellant/claimant shall be 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** das