Maniappan v. Sahadevan, George Varghese & The New India Assurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 08TH DAY OF NOVEMBER 2019 / 17TH KARTHIKA, 1941** ## **MACA.No.949 OF 2010** **AGAINST THE AWARD IN O.P.(MV) NO.1124/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT:** **MANIAPPAN, KARUNALAYAM, PATHIRAPPALLY P.O., ALAPPUZHA. BY ADV. SRI.R.AZAD BABU** ## **RESPONDENTS:** |**1**|**SAHADEVAN,**| |---|---| ||**S/O.RAGHAVAN,**| ||**VELIYIL VEEDU,**| ||**WARD NO.10, MARARIKULAM SOUTH PANCHAYATH,**| ||**PATHIRAPALLY P.O., ALAPPUZHA.**| |**2**|**GEORGE VARGHESE,**| ||**S/O.VARGHESE,**| ||**MANAGING PARTNER, M/S.GEORGE AND COMPANY,**| ||**PATHIRAPPLLY P.O., ALAPPUZHA.**| |**3**|**THE NEW INDIA ASSURANCE CO.LTD.**| ||**REPRESENTED BY ITS BRANCH MANAGER,**| ||**ALAPPUZHA.**| ||**SRI A.A. ZIYAD RAHMAN- STANDING COUNSEL**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.949 OF 2010** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1124 of 2004 on the file of the Motor Accidents Claims Tribunal, Alappuzha, 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 16.07.2003, while he was carrying sugar bag for loading in an autorickshaw bearing registration No.KL-4/K5003, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. When the appellant reached near the autorickshaw, the vehicle moved backwards and he was knocked down. He fell down with sugar bag and sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the autorickshaw by the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.2,50,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed written statement denying the accident on the **MACA.No.949 OF 2010** -3- ground that the date of accident mentioned in Ext.A1 FIR was 17.07.2003. The insurer denied the allegation that the accident occurred due to the negligence of the 1[st] respondent driver. It was admitted that the vehicle involved in the accident was having valid insurance coverage at the time of accident. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral or documentary evidence. The document marked as Ext.C1 is the disability certificate issued by the Medical Board at the Medical College Hospital, Alappuzha assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident. 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 autorickshaw by the 1[st] respondent driver. The Tribunal found **MACA.No.949 OF 2010** -4- that the date of accident was mistakenly mentioned as 17.07.2003 in Ext.A1 FIR. Since insurance coverage of the said vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,90,000/-, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 31.08.2004 till realisation, with a cost of Rs.2,000/- and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel 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 **MACA.No.949 OF 2010** -5- 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. 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 **MACA.No.949 OF 2010** -6- 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 nonviolation of the principle of equitability. 10. In the instant case, the compensation awarded by ## the Tribunal under various heads reads thus; ||Head of claim|Amount<br>allowed| |---|---|---| |1|Compensation for loss of earning|Rs.12,000/-| |2|Cost of medicine and treatment charges|Rs. 7,000/-| |3|Transportation charges|Rs. 3,000/-| |4|Bystander expenses|Rs. 3,000/-| |5|Extra nourishment|Rs. 3,000/-| |6|Damage to clothing|Rs. 750/-| |7|Compensation for pain and suffering|Rs.20,000/-| |8|Compensation for permanent disability<br>and loss of earning power|Rs.78,000/-| |9|Compensation for loss of amenities|Rs. 3,000/-| ||**Total**|**1,90,000/-**| 11. The accident occurred on 16.07.2003. At the time of accident, the appellant was aged 48 years. He claimed a monthly income of Rs.4,000/- as Headload Worker. No 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 **MACA.No.949 OF 2010** -7- Rs.2,000/-, for the purpose of assessing compensation under various heads. 12. 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 guess **MACA.No.949 OF 2010** -8- work, which may include the ground realities prevailing at the relevant point of time. 13. 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. 14. 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 **MACA.No.949 OF 2010** -9- 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.4,000/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A5 is the wound certificate. As per Ext.A5, the appellant sustained C5-C6 Disc Prolapse and Dislocation post-traumatic. He was admitted at Medical College Hospital on 16.07.2003 at about 6.25 pm and was discharged against the medical advise, on the same date, at about 10.10 pm. Ext.A6 is the discharge card. Ext.A8 is the case summary and discharge record issued from Indo American Hospital, Vaikom. In Ext.A8 it is stated that on 17.07.2003, C5-6 anterior cervical Discectomy with illiac bone graft in supine position was done under general anaesthesia. On 22.07.2003, re-exploration of C5-6 disc space, repositioning of the bone graft and anterior plating in supine position was done under general anaesthesia. On re-exploration, the graft appeared to have protruded out. With minimal traction, it could be repositioned and titanium **MACA.No.949 OF 2010** -10- plate with cancellous screws were fixed between C5-6 bodies. The wound closed in layers. He was gradually mobilised with no other problems. He was discharged with advise to come back for periodic physiotherapy review. He was advised to wear cervical coller for six months. 16. Ext.A12 series are bills regarding purchase of medicine and treatment charges for a total sum of Rs.1,19,730.32/-. On a perusal of the bills and the statement regarding the amounts covered by those bills, the Tribunal noticed that there is mistake regarding the calculation of the amount. The appellant paid Rs.15,000/- as advance on 17.07.2003 and the said amount is included in the statement. The bill dated 08.08.2003 was for Rs.44,398/-. Deducting the amount of Rs.15,000/- paid by the appellant as advance, the hospital authorities collected Rs.29,398/- from the appellant. But in the statement, the entire amount of Rs.44,398/- is mentioned. The appellant had undergone inpatient treatment for a period of nine days. Ext.C1 is the disability certificate issued by the Medical College Hospital, Alappuzha, in which the permanent disability of 25% has been assessed. In **MACA.No.949 OF 2010** -11- Ext.C1, it is stated that there is gross limitation of movement of the cervical spine with weakness of both upper limbs. Since the appellant is a loading and unloading worker and considering the nature of injuries sustained, the Tribunal fixed the percentage of permanent disability is 25%, as certified in Ext.C1. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.2,000/- 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 8 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.32,000/- (4,000 x 8), resulting an additional compensation of **Rs.20,000/-** (32,000 - 12,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for nine days. Towards transportation to hospital, the Tribunal **MACA.No.949 OF 2010** -12- 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. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.3,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.750/-. The accident is of the year 2003 and the appellant had undergone inpatient treatment for nine days. 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 these heads represents just and reasonable compensation, which requires no enhancement in this appeal. The compensation under the head bystander expenses is re-fixed as Rs.900/- (100 x 9), resulting an additional compensation of **Rs.150/-** (900 - 750). 20. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of **MACA.No.949 OF 2010** -13- the year 2003, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 21. Towards cost of medicine and treatment charges, the Tribunal awarded a sum of Rs.70,000/-, covered by Ext.A12 series of medical bills. The Tribunal has stated valid reasons for not taking into consideration the advance bills for the purpose of awarding compensation under medical expenses. 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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 refixed as Rs.30,000/-, resulting an additional compensation of **Rs.10,000/-** (30,000 - 20,000). 23. In **Sarla Verma v. Delhi Transport Corporation** **MACA.No.949 OF 2010** -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. 24. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the **MACA.No.949 OF 2010** -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. 25. 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. 26. Towards compensation for permanent disability and loss of earning power, the Tribunal awarded a sum of Rs.78,000/- (2,000 x 12 x 13 x 25/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, applying the multiple of 13 applicable to the age group of the appellant and the percentage of permanent disability as 25%, the compensation under the head permanent disability is refixed as Rs.1,56,000/- (4,000 x 12 x 13 x 25/100), resulting an additional compensation of **Rs.78,000/-** (1,56,000 - 78,000). 27. Towards compensation for loss of amenities, the **MACA.No.949 OF 2010** -16- Tribunal awarded a sum of Rs.3,000/-. In Ext.C1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 25%. Considering the nature of injuries sustained and the permanent disability that has been assessed in Ext.C1 disability certificate, the compensation awarded by the Tribunal under this head re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.22,000/-** (25,000 - 3,000). 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,30,650/-** (Rupees one lakh thirty thousand six hundred fifty only) [20,000 + 150 + 500 + 10,000 + 78,000 + 22,000] in this appeal, 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 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. Payment of additional compensation to the **MACA.No.949 OF 2010** -17- appellant 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. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr