MICHEIL, S/O JOSEPH (DECEASED) v. P.M. Ibrahim and The New India Assurance Co. Ltd. (MACA No.1701 OF 2005) and SUPPLEMENTARY APPELLANTS 2 TO 6

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941** ## **MACA.No.1701 OF 2005** **AGAINST THE AWARD IN OP(MV) 595/2001 DATED 30-09-2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/APPLICANT:** |***1**|**MICHEIL, S/O.JOSEPH, (DIED)**| |---|---| ||**43 YEARS, UPPUVEETTIL HOUSE,**| ||**MULLANKOLLY P.O., THRISSILERY,**| ||**MANANTHAVADY TALUK.**| **SUPPLEMENTAL APPELLANTS 2 TO 6 IMPLEADED** **APPELLANT 1 DECEASED AND SUPPLEMENTARY APPELLANTS 2 TO 6 IMPLEADED** |**SUPPL.**|**ELCY, W/O.LATE O.J.MICHEIL,**| |---|---| |**2**|**UPPU VEETTIL HOUSE, MULLANKOLLI,**| ||**THRISSILERY, WAYANAD DISTRICT-670646**| |**SUPPL.**|**MOLLY, D/O.LATE MICHEIL,**| |**3**|**UPPU VEETTIL HOUSE, MULLANKOLLI,**| ||**THRISSILERY, WAYANAD DISTRICT-670646**| |**SUPPL.**|**JOHNS, S/O.LATE MICHEIL,**| |**4**|**UPPU VEETTIL HOUSE, MULLANKOLLI,**| ||**THRISSILERY, WAYANAD DISTRICT-670646**| |**SUPPL.**|**PRINCE, S/O.LATE MICHEIL,**| |**5**|**UPPU VEETTIL HOUSE, MULLANKOLLI,**| ||**THRISSILERY, WAYANAD DISTRICT-670646**| |**SUPPL.**|**TRESSIAMMA, MOTHER OF LATE MICHEIL,**| |**6**|**UPPU VEETTIL HOUSE, MULLANKOLLI,**| ||**THRISSILERY, WAYANAD DISTRICT-670646**| ||**AS PER ORDER DATED 20.02.2020 IN IA NO.1/2020 IN MAA**| ||**1701/2005**| |**2**|**ELCY**| ||**AGED 56 YEARS**| ||**W/O LATE O.J. MICHEIL,**| ||**UPPU VEETTIL HOUSE, MULLANKOLLI, THRISSILERY,**| ||**WAYANAD DISTRICT-670646**| **MACA.No.1701 OF 2005** 2 **3 MOLLY D/O LATE MICHEIL, UPPU VEETTIL HOUSE, MULLANKOLLI, THRISSILERY, WAYANAD DISTRICT-670646** **4 JOHNS S/O LATE MICHEIL, UPPU VEETTIL HOUSE, MULLANKOLLI, THRISSILERY, WAYANAD DISTRICT-670646** **5 PRINCE S/O LATE MICHEIL, UPPU VEETTIL HOUSE, MULLANKOLLI, THRISSILERY, WAYANAD DISTRICT-670646** **6 THRESSIAMMA MOTHER OF LATE MICHEIL, UPPU VEETTIL HOUSE, MULLANKOLLI, THRISSILERY, WAYANAD DISTRICT-670646 (APPELLANT 1 DECEASED AND SUPPLEMENTARY APPELLANTS 2 TO 6 IMPLEADED AS PER ORDER DATED 20/02/2020 IN IA-1/2020 IN MACA 1701/2005)** **BY ADVS. SHRI.ESM.KABEER SHRI.ESM.KABEER** ## **RESPONDENTS/RESPONDENTS:** **1 P.M.IBRAHIM, S/O.MOIDU, AGED 35 YERS, KOSAKADA HOUSE, PUTHUNAGARAM P.O., PALAKKAD DISTRICT (OWNER CUM DRIVER OF KL-13/A 8228 LORRY). 2 THE NEW INDIA ASSURANCE CO.LTD. PALAKKAD BRANCH, T.B. ROAD,, P.O. PALAKAD. (POLICY NO.3176110182669).** **R2 BY ADV. SRI.A.C.DEVY R2 BY ADV. SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1701 OF 2005** 3 ## **ANIL K. NARENDRAN, J. --------------------------------M.A.C.A. No.1701 of 2005 -------------------------------------------Dated this the 20[th] day of February, 2020** ## **JUDGMENT** The original appellant is the claimant in O.P(MV)No.595 of 2001 on the file of the Motor Accidents Claims Tribunal, Kalpetta, Wayanad, 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 02.06.2001, while he was travelling in a lorry bearing registration No.KL-13/A-8228, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. At the place of accident, the lorry capsized and he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cumdriver of the lorry filed written statement pointing out that the vehicle was covered by a valid insurance policy issued by the 2[nd] respondent insurer. The 1[st] respondent denied the allegation that the accident occurred due to his rash and negligent driving of the **MACA.No.1701 OF 2005** 4 lorry. The 1[st] respondent contended that the compensation claimed is highly excessive. 3. The 2[nd] respondent insurer filed written statement contending that, at the time of accident, the claimant was unauthorisedly travelling in a goods vehicle. As per the policy conditions, the insurer is not liable to pay the amount of compensation to the claimant. The 1[st] respondent alleged violation of the conditions of the policy and that, the compensation claimed under various heads are highly excessive. 4. Before the Tribunal, Exts.A1 to A10 were marked on the side of the claimant and he was examined as PW1. 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 driving of lorry by the 1[st] respondent driver. Though the vehicle was covered by a valid insurance policy, there is violation of the conditions of policy since passengers are not permitted in a goods vehicle. The claimant has no case that he was travelling in the lorry accompanying goods. Therefore, the **MACA.No.1701 OF 2005** 5 Tribunal held that the 1[st] respondent alone is liable to pay the amount of compensation to the claimant. Under various heads, the Tribunal awarded a total compensation of Rs.48,500/-, together with interest at the rate of 9% per annum from the date of petition till date of payment, with proportionate cost, and the 1[st] respondent was directed to satisfy the award, within one month. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant filed this appeal before this Court. During the pendency of this appeal, the original appellant died and his legal representatives are impleaded by the order in I.A.No.1 of 2020, as supplemental appellants 2 to 6. 7. Heard the learned counsel for the supplemental appellants and also the learned Standing Counsel for the 2[nd] respondent insurer. Service of notice on the 1[st] respondent was effected through paper publication. None appears for the 1[st] respondent. 8. The issue that arises for consideration in this appeal is as to whether the supplemental appellants are entitled for enhancement of the compensation awarded by the Tribunal under various heads, for the injuries sustained by the original **MACA.No.1701 OF 2005** 6 appellant/claimant. 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 determination can never be in arithmetical exactitude. It can never **MACA.No.1701 OF 2005** 7 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: |Loss of earnings|3000|1,500 x 2| |---|---|---| |Transport charges|1500|| |Bystander expense|500|| |Extra nourishment|500|| |Medical expenses|3000|A8 series of medical<br>bills| |Disability compensation|30000|Consolidated amount| |Pain and suffering|10000|| |TOTAL|**48500**|| 12. The accident occurred on 02.06.2001. At the time of accident, the original appellant was aged 43 years. He claimed a monthly income of Rs.5,000/- as manual labourer. In order to prove monthly income, the original appellant mounted the box was PW1. The Tribunal fixed the monthly income notionally as Rs.1,500/-, for the purpose of assessing compensation under various heads. 13. In **Ramachandrappa v. Manager, Royal Sundaram** **MACA.No.1701 OF 2005** 8 ## **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 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 **MACA.No.1701 OF 2005** 9 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. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2001, 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 original appellant notionally as Rs.3,250/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A9 is the wound **MACA.No.1701 OF 2005** 10 certificate and Exts.A5 and A6 are discharge cards. Ext.A7 is the treatment certificate. As per medical records, in the accident, the original appellant sustained contusion of right shoulder, contusion of right scapula and fracture of right scapula. He had undergone inpatient treatment for a total period of 5 days. Ext.A8 series are the medical bills for a sum of Rs.2,000/-. 17. Ext.A10 is the disability certificate issued by the Medical Board at the Taluk Headquarters Hospital, Mananthavady, in which the permanent disability of the original appellant, on account of the injuries sustained in the accident, is assessed as 23% due to loss of pinna right side and partial loss of hearing. Instead of granting disability compensation applying the proper multiplier and the percentage of disability assessed in Ext.A10 disability certificate, the Tribunal awarded a consolidated amount of Rs.30,000/-. The procedure adopted by the Tribunal in this regard cannot be sustained. When the percentage of permanent disability of the original appellant, on account of the injuries sustained in the accident, is assessed by the Medical Board as 23% in Ext.A10 disability certificate, he is entitled for payment of disability compensation applying the proper multiplier applicable to **MACA.No.1701 OF 2005** 11 his age group. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.3,000/-, at the rate of Rs.1,500/- for a period of 2 months. Considering the nature of injuries sustained and the treatment the original 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 original appellant is re-fixed notionally as Rs.3,250/-, the compensation under the head loss of earning is re-fixed as Rs.13,000/- (3,250 x 4), resulting an additional compensation of **Rs.10,000/-** (13,000 – 3,000). 19. On account of the injuries sustained in the accident, the original appellant had undergone inpatient treatment for 5 days. The accident is of the year 2001. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,500/-. Considering the nature of injuries sustained and the treatment the original appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.2,000/-, resulting an additional compensation of **Rs.500/-** (2,000 – 1,500). 20. Towards bystander expenses the Tribunal awarded a **MACA.No.1701 OF 2005** 12 sum of Rs.500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2001 and the original appellant had undergone inpatient treatment for 5 days. Considering the nature of injuries sustained and the treatment the original appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.750/- (150 x 5), resulting an additional compensation of **Rs.250/-** (750 - 500). The compensation under the head extra nourishment represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards damage to clothing and articles, the Tribunal awarded no amount. Considering the fact that the accident is of the year 2001, this Court deem it appropriate to grant a sum of **Rs.750/-** under this head. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.3,000/-. Ext.A8 medical bills are for Rs.2,000/-. 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 **MACA.No.1701 OF 2005** 13 Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the treatment the original appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under the head pain and suffering is refixed as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 – 10,000). 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, multiplier of **14** for 41 to 45 years, and multiplier of **13** for **MACA.No.1701 OF 2005** 14 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 original appellant was aged 43 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 proper multiplier to be applied is **14** . 27. Towards compensation for permanent disability, the Tribunal awarded only a consolidated amount of Rs.30,000/-. Since the monthly income of the original appellant is re-fixed notionally as Rs.3,250/-, applying the multiplier of 14 applicable to his age group and the percentage of permanent disability as 23%, the compensation under the head permanent disability is re-fixed **MACA.No.1701 OF 2005** 15 as Rs.1,25,580/- (3,250 x 12 x 14 x 23/100), resulting an additional compensation of **Rs.95,580/-** (1,25,580 – 30,000). 28. The Tribunal awarded no amount towards loss of amenities. In Ext.A10 disability certificate the permanent disability of the original appellant, on account of the injuries sustained in the accident, is assessed as 23%. Considering the nature of injuries sustained and the permanent disability on account of those injuries, this Court deem it appropriate to grant a sum of **Rs.25,000/-** under the head loss of amenities. In the result, the supplemental appellants 2 to 6, who are the legal representatives of the original appellant/claimant will be entitled for payment of an additional compensation of **Rs.1,37,080/-** (Rupees one lakh thirty seven thousand eighty only) (10,000 + 500 + 250 + 750 + 5,000 + 95,580 + 25,000) in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The additional compensation shall be apportioned among supplemental appellants 2 and 6, who are the wife and mother of the deceased original appellant/claimant in the ratio 90:10. In view of the finding of the Tribunal exonerating the 2[nd] respondent insurer from **MACA.No.1701 OF 2005** 16 the liability, the 1[st] respondent owner-cum-driver shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months, after deducting the liability, if any, of the original appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the supplemental appellants 2 and 6 shall be made 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 supplemental appellants 2 and 6 shall provide their 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. jv Sd/- **ANIL K. NARENDRAN JUDGE**