Manoj N.S. v. The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941** **MACA.No.2887 OF 2014** **AGAINST THE AWARD IN O.P.(MV) NO.229/2011 DATED 30-09-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA** ## **PETITIONER/APPELLANT:** **MANOJ N.S., S/O.SUKUMARAN, THYKOOTTATHILAYA THOOMBUNKAL (H), AMAYANNOOR P.O., AYARKUNNAM, KOTTAYAM DISTRICT.** **BY ADV. SRI.FRINSO MATHEW** ## **RESPONDENTS:** |**1**|**MANOJ C.T.,**| |---|---| ||**S/O.THANKAPPAN,**| ||**PALAMOOTTIL HOUSE,**| ||**PULIYANMAKEL, AMAYANNOOR P.O.,**| ||**PIN-686 025.**| |**2**|**ANOOP,**| ||**S/O.PRABHAKARAN,**| ||**KUNNEL PURAYIDATHIL HOUSE,**| ||**PULIYANMAKEL, AMAYANNOOR P.O.,**| ||**PIN-686 025.**| |**3**|**THE NEW INDIA ASSURANCE CO.LTD., PALA**| ||**REPRESENTED BY ITS DIVISIONAL MANAGER,**| ||**KOTTAYAM, PIN-686 001.**| **R1 BY ADV. SRI.M.V.THAMBAN R1 BY ADV. SRI.R.REJI R1 BY ADV. SMT.THARA THAMBAN R1 BY ADV. SRI.B.BIPIN R1 BY ADV. SRI.ARUN BOSE R3 BY ADV. SRI.M.PREMCHAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2887 of 2014 -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.229 of 2011 on the file of the Motor Accidents Claims Tribunal, Pala, 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 21.11.2010, while he was walking along the side of a public road. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL-5/Z-9857 owned by the 1[st] respondent, ridden 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 riding of motorcycle by the 2[nd] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were 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 2[nd] MACA No.2887 of 2014 -3- respondent 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 A14 were marked on the side of the appellant/claimant and he was examined as PW1. The document marked as Ext.X1 is the disability certificate issued by the Standing Disability Assessment Board at Government Medical College Hospital, Kottayam assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident. 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 motorcycle by the 2[nd] respondent rider. Since the said vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the insured. However, on a finding that, as on the date of accident, the 2[nd] respondent rider was not holding a valid and effective driving licence, the 3[rd] respondent insurer was granted recovery right to proceed against the 1[st] respondent owner to recover the amount of compensation paid MACA No.2887 of 2014 -4- to the claimant. Under various heads, the Tribunal awarded a total compensation of Rs.3,44,250/-, together with interest at the rate of 7.5% per annum from the date of petition 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 and also the learned Standing Counsel for the 3[rd] 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 MACA No.2887 of 2014 -5- '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 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. MACA No.2887 of 2014 -6- ## 11. In the instant case, the compensation awarded by ## the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount allowed<br>(in Rupees)| |---|---|---| |1|Loss of earning|30,000/-| |2|Transportation expenses|12,000/-| |3|Medical expenses|1,54,250/-| |4|Pain and suffering|35,000/-| |5|Disability compensation|86,400/-| |6|Loss of amenities|24,600/-| |7|Extra nourishment|2,004/-| ||**TOTAL**<br>**Rounded to**|**3,44,254/-**<br>**3,44,250/-**| 12. The accident occurred on 21.11.2010. At the time of accident, the appellant was aged 36 years. He claimed a monthly income of Rs.15,000/- as Headload Worker. The document marked as Ext.A12 is the salary certificate, which was not proved by examining the person concerned. The registration card of the appellant was also not placed on record. The appellant was examined as PW1. The Tribunal fixed the monthly income notionally as Rs.6,000/-, 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 MACA No.2887 of 2014 -7- 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 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 MACA No.2887 of 2014 -8- 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. 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. 16. The document marked as Ext.A7 is the discharge MACA No.2887 of 2014 -9- summary. As per medical records, in the accident, the appellant sustained postrheumatic frontal bone communited depressed fracture with anteriacranialfossa floor fracture; and supracondylar fracture on left femur. He had undergone inpatient treatment for a period of 16 days. Ext.A13 series of medical bills are for a sum of Rs.1,73,962/-. Out of the said amount, the admissible bill amount comes to Rs.1,54,062/and the Tribunal awarded a sum of Rs.1,54,250/- towards medical expenses. 17. The document marked as Ext.X1 is the disability certificate issued by the Standing Disability Assessment Board at Government Medical College Hospital, Kottayam, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 15%. The disabilities noted in Ext.X1 certificate includes postrheumatic partial anklosis of left knee. The Tribunal took the percentage of disability as 8% on the ground that the assessment of disability in Ext.X1 is not properly proved. Ext.X1 disability certificate is one issued by the Standing Disability Assessment Board, pursuant to the orders passed by the Tribunal in MACA No.2887 of 2014 -10- I.A.No.1124 of 2012. In the absence of any vitiating circumstances pointed out in the assessment of disability in Ext.X1, considering the the nature of injuries sustained and the disabilities noted by the Standing Disability Assessment Board, the appellant is entitled for grant of compensation under the head permanent disability, taking 15% permanent disability assessed in Ext.X1. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.30,000/-, at the rate of Rs.6,000/- for a period of 5 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, the period of 5 months fixed by the Tribunal for granting loss of earning is refixed as 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.7,750/-, the compensation under the head loss of earning is re-fixed as Rs.46,500/- (7,750 x 6), resulting an additional compensation of **Rs.16,500/-** . (46,500 - 30,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 16 days. The accident is of the year 2010. Towards transportation to MACA No.2887 of 2014 -11- hospital, the Tribunal awarded a sum of Rs.12,000/-. Ext.A14 series of ambulance bills are for a sum of Rs.18,000/-. Though the said documents were not proved by examining the person concerned, considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.16,000/-, resulting an additional compensation of **Rs.4,000/-** (16,000 - 12,000). 20. Towards bystander expenses the Tribunal awarded no compensation. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,004/-. The accident is of the year 2010 and the appellant had undergone inpatient treatment for 16 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of **Rs.3,200/-** (200 x 16) as compensation under the head bystander expenses. The compensation under the head extra nourishment is re-fixed as Rs.2,400/- (150 x 16), resulting an additional compensation of **Rs.400/-** (2,400 - 2,000). MACA No.2887 of 2014 -12- 21. The Tribunal awarded no compensation towards damage to clothing. Considering the fact that the accident is of the year 2010, this Court deem it appropriate to grant a sum of **Rs.1,000/-** as compensation under this head. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.1,54,250/-. Ext.A13 series of medical bills are for a sum of Rs.1,73,962/-. Out of the said amount, the admissible bill amount comes to Rs.1,54,062/-. 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 awarded a sum of Rs.35,000/-. 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. 24. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its MACA No.2887 of 2014 -13- 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. 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 MACA No.2887 of 2014 -14- 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 36 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 **15** applied by the Tribunal is correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.86,400/- (6,000 x 12 x 15 x 8/100). Since the monthly income of the appellant is re-fixed notionally as Rs.7,750/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of permanent disability as 15%, the compensation under the head permanent disability is re-fixed as Rs.2,09,250/- (7,750 x 12 x 15 x 15/100), resulting an additional compensation of **Rs.1,22,850/-** (2,09,250 - 86,400). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.24,600/-. Considering the nature of injuries MACA No.2887 of 2014 -15- sustained and 15% permanent disability assessed by the Standing Disability Assessment Board in Ext.X1, 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. The Tribunal awarded no compensation under the head disfiguration. Disfiguration on the forehead of the appellant is evident from Ext.A11 photograph. Considering the said fact, the appellant is granted a sum of **Rs.20,000/-** as compensation for disfiguration. 30. Towards future treatment expenses, no compensation has been granted by the Tribunal. The learned counsel for the appellant would submit that, even now the appellant is undergoing outpatient treatment, on account of the injuries sustained in that accident. No materials are placed on record to prove any future treatment expenses incurred by the appellant. Even in the absence of any such materials, considering the fact that the appellant had sustained serious head injuries, this Court deem it appropriate to grant a sum of **Rs.15,000/-** as compensation under this head, which will MACA No.2887 of 2014 -16- carry no interest. 31. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.1,82,950/-** (Rupees one lakh eighty two thousand nine hundred and fifty only) [16,500 + 4,000 + 3,200 + 400 + 1,000 + 1,22,850 + 20,000 + 15,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding Rs.15,000/- granted under the head future treatment expenses. 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 insurer will be entitled to recover the said amount by a proceedings against the 1[st] respondent owner. 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- MACA No.2887 of 2014 -17- 62475/2016 dated 07.11.2019. The appellant 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. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr