MANI v. National Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941 ``` ## **`MACA.No.3908 OF 2019`** ``` AGAINST THE AWARD IN OP(MV)385/2016 DATED 26-10-2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR ``` ## **`APPELLANT/PETITIONER:`** ``` MANI, AGED 63 YEARS W/O. SADANANDAN, KORASSERRY HOUSE, KUZHUPPILLY, ERNAKULAM DISTRICT. ``` ``` BY ADV. SRI.A.N.SANTHOSH ``` ## **`RESPONDENT/2ND RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LTD., N. PARAVUR-683513. REPRESENTED BY ITS MANAGER ``` ``` R1 BY ADV. SMT.P.A.REZIYA, STANDING COUNSEL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.3908 of 2019 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.385 of 2016 on the file of the Motor Accidents Claims Tribunal, North Paravur, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 15.06.2016, while she was travelling as pillion rider on a motorcycle bearing registration No.KL-07/AZ-8863. At the place of accident, the motorcycle was hit by another motorcycle bearing registration No.KL-42/L-7549 owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set ex parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the motorcycle involved in the accident; however, denying negligence alleged against the 1[st] respondent rider. The insurer contended that the accident occurred MACA No.3908 of 2019 3 due to the rash and negligent riding of motorcycle on which the appellant was travelling as pillion rider. 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, Exts.A1 to A11 were marked 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 riding of the offending motorcycle by the 1[st] respondent rider. 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.1,40,600/-, together with interest at the rate of 9% per annum from the date of petition, i.e., 17.11.2016 till realisation, 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 appeal. 7. Heard the learned counsel for the appellant/claimant MACA No.3908 of 2019 4 and also the learned Standing Counsel for the 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 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. 10. 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 MACA No.3908 of 2019 5 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: |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(Rs.)|Amount<br>awarded<br>(Rs.)|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earnings|35000|18000|2 months| |2|Transportation<br>to<br>hospital|5000|2000|| |3|Bystander expenses|5000|--|| |4|Damage to clothing and<br>articles|2000|2000|| |5|Medical expenses|15000|1000|No medical bills<br>produced| |6|Extra nourishment|3000|4000|| |7|Pain and sufering|75000|50000|| |8|Loss of amenities|50000|15000|| |9|Compensation<br>for<br>disability|10000|48600|Ext.A10| |10|Partial loss of earnings|10000|--|| |11|Loss of earning power|75000|--|| ||Total|2,90,000/-<br>limited to<br>1,50,000/-|Rs.1,40,600/-|| |12.<br>The accident occurred on 05.06.2016. At the time of||||| MACA No.3908 of 2019 6 accident, the appellant was aged 60 years. The appellant claimed a monthly income of Rs.10,000/- as manual labourer. She has not chosen to mount the box to prove her monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.9,000/-, 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 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 MACA No.3908 of 2019 7 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. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2016, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.10,000/claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the MACA No.3908 of 2019 8 ## purpose of assessing compensation under various heads. 16. The document marked as Ext.A5 is the wound certificate issued from Medical Trust Hospital, Ernakulam; Ext.A6 is the OP record issued from Taluk Hospital, North Paravur; Ext.A7 is the medical certificate issued from General Hospital, Ernakulam; Ext.A8 is the OP registration card issued from General Hospital, Ernakulam; and Ext.A9 is the casualty registration card. As per Ext.A5 wound certificate, in the accident, the appellant sustained abrasion over left wrist with swelling, restricted movements of left wrist, left elbow and left shoulder, fracture of distal end of radius left. She was treated as an outpatient. 17. The document marked as Ext.A10 is the disability certificate issued by an Orthopaedic Consultant, in which the permanent whole body disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10.70%. The appellant has not taken steps to prove Ext.A10 by examining the doctor concerned. In such circumstances, the Tribunal took the percentage of permanent disability as 5%, for the purpose of awarding compensation under various heads. 18. The disabilities noted in Ext.A10 are malunited fracture of distal end of left radius with 20% radial angulation; limitation of pronation from 60° (N90) and supination from 20° (N90) due to MACA No.3908 of 2019 9 partial ankylosis of left DRU joints; limitation of dorsiflexion from 20° palmar flexion from 15° and ulnar deviation from 10° due to partial ankylosis of left wrist; weakness of supination, pronation, ulnar deviation, dorsiflexion and palmar flexion of 10% each due to muscuotendinous injuries at fracture site; radial deviation deformity of left wrist; and weakness of grip strength of left hand by 15% and pinch strength by 15% each and grasp strength and hook strength by 15% each due to musculotendinous injuries and soft tissue fibrosis and adhesions. Functionally, the appellant is having difficulty to grip, pull, push, lift or carry heavy weight, to rotate, squeeze, support, screw, hammer with left hand. Considering the nature of disabilities noted in Ext.A10, this Court deem it appropriate to take the percentage of permanent disability as 7%, for the purpose of awarding compensation under various heads. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.18,000/-, at the rate of Rs.9,000/- for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 months fixed by the Tribunal for granting loss of earning is re-fixed as 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.10,000/-, the compensation under the MACA No.3908 of 2019 10 head loss of earning is re-fixed as Rs.40,000/- (10,000 x 4), resulting an additional compensation of **Rs.22,000/-** (40,000 – 18,000). 20. The accident is of the year 2016. The appellant was treated as an outpatient at Medical Trust Hospital, Ernakulam; Taluk Hospital, North Paravur; and General Hospital, Ernakulam. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. 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 is re-fixed as Rs.5,000/-, resulting an additional compensation of **Rs.3,000/-** (5,000 – 2,000). 21. Towards extra nourishment, the Tribunal awarded a further sum of Rs.4,000/-. The appellant was treated as an outpatient. Considering the nature of injuries sustained, 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. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.1,000/-. In the absence of any medical bills, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this MACA No.3908 of 2019 11 ## appeal. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.50,000/-. 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 is on the higher side, which is scaled down to Rs.30,000/-, resulting an **excess payment** of **Rs.20,000/-** (50,000 – 30,000), which has to be deducted from the additional compensation granted in this appeal. 24. 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, MACA No.3908 of 2019 12 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. 25. 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. 26. In the instant case, as on the date of accident, the appellant was aged 60 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 **9** applied by the Tribunal is correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.48,600/- (9,000 x 12 x 9 x 5/100). Since the monthly income of the appellant is re-fixed notionally as Rs.10,000/-, applying the multiplier of 9 applicable to the age group of the appellant and the percentage of permanent disability as 7%, the compensation under the head permanent disability is MACA No.3908 of 2019 13 re-fixed as Rs.75,600/- (10,000 x 12 x 9 x 7/100), resulting an additional compensation of **Rs.27,000/-** (75,600 – 48,600). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and 7% permanent disability on account of those injuries, as taken by this 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. 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.31,000/-** (Rupees thirty one thousand only) [(22,000 + 27,000 + 3,000) – 20,000] 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 202 days in filing this appeal, which was condoned by the order dated 09.10.2019, subject to the condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said amount for the period of delay. The 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 MACA No.3908 of 2019 14 Fund. The insurer shall also deduct the liability of the appellant/claimant towards additional court fee in this appeal, in view of the amendment made to sub-rule (3) of Rule 397 of the Kerala Motor Vehicles Rules, 1989, with effect from 16.01.2015, and the same shall be deposited before this Court. Registry shall calculate the additional court fee payable in this appeal and a statement to that effect shall also be enclosed along with the certified copy of this judgment. 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. The appellant shall provide her 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 certified copy of this judgment. This appeal is disposed of as above. No order as to costs. ``` Sd/- ``` **ANIL K.NARENDRAN** ``` JV ``` **JUDGE** MACA No.3908 of 2019 15 ## **`MACA No.3908/2019 (A)`** ``` The figure and words Rs.31,000/- showing the additional compensation granted occurring in para 29 page 14 of the Judgment dated 06.01.2020 in MACA 3908/2019 is corrected as Rs.32,000/- as per order dated 21.10.2021 in I.A 1/2021 in MACA No.3908/2019. ``` ``` Sd/- ``` ``` Deputy Registrar ```