Mohamed Ashraf (through legal heirs) v. Firoz Ahamed and Ansar Pasha; New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941** **MACA.No.1117 OF 2007** **AGAINST THE AWARD IN OP(MV) NO.1422/2001 DATED 30-12-2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **- APPELLANTS/PETITIONER LEGAL HEIRS:** **1 LATE MOHAMED ASHRAF(EXPIRED ON 18/05/2007) KOTTIKKAL HOUSE,, P.O. MADAVANA, ATHANI-680666, ERIYAD, KODUNGALLOOR, THRISSUR. 2 SAJITHA M ASHRAF AGED 26 YEARS W/O LATE MOHAMED ASHRAF, ----------- DO -------3 K M MOHAMMED ADHIL AGED 7 YEARS S/O LATE MOHAMED ASHRAF ---------- DO --------4 K M MOHAMED FADHIL AGED 7 YEARS S/O LATE MOHAMED ASHRAF ---------- DO --------5 K M MOHAMED FAYAZ AGED 3 ½ YEARS S/O LATE MOHAMED ASHRAF ---------- DO ---------** **APPELLANTS 3, 4, 5 ARE MINORS AND THE CHILDREN OF 1ST AND 2ND APPELLANTS. THEY ARE REPRESENTED BY THE 2ND APPELLANT.** **BY ADVS. SMT.JEENA JOSEPH SRI.G.D.PANICKER** ## **RESPONDENTS/RESPONDENTS:** **1 FIROZ AHAMED S/O KOZHIPAT ABDUL JALEEL, SAB. K.P.MOHALLA, MASJID ROAD, 2ND CROSS, CHAMARAJA NAGAR, MYSORE.** MACA No.1117 of 2007 2 |**2**|**ANSAR PASHA, S/O. AKBAR PASHA**| |---|---| ||**2ND CROSS, AHAMED NAGAR,**| ||**GUNDULPET ROAD,, CHAMARAJA NAGAR.**| |**3**|**NEW INDIA ASSURANCE CO. LTD.**| ||**BRANCH 3RD CROSS, R.P. ROAD EXTENSION,**| ||**NANJANGUD, KASARGOD DIST.**| ||**R3 BY ADV. SRI.JOY JOSEPH**| ||**R3 BY ADV. SMT.PRAICY JOSEPH**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1117 of 2007 3 ## **JUDGMENT** Appellants 2 to 5 are the legal heirs of the claimant in O.P. (MV)No.1422 of 2001 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 08.04.2001, while he was riding a scooter bearing registration No.CNA-8516. At the place of accident, i.e., at Chamaraja Nagar, Sathy Public Road, Mysore, the scooter was hit by a mini lorry bearing registration No.KA-10/985, owned by the 1[st] respondent, driven 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 driving of lorry by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver of the mini lorry remained absent and they were set ex parte. MACA No.1117 of 2007 4 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the mini lorry involved in the accident; however, denying the negligence alleged against the 2[nd] respondent driver. The insurer contended that the accident occurred due to the rash and negligent riding of scooter by the claimant. 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 claimant and Pws.1 to 4 were examined. 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 the mini lorry by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.2,11,345/-, MACA No.1117 of 2007 5 together with interest at the rate of 6% per annum from the date of petition till date of deposit, with proportionate cost, and the insurer was directed to satisfy the award. 6. Subsequent to the award, the claimant died. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants 2 to 5, the legal heirs of the deceased claimant are before this Court in this appeal. 7. Heard the learned counsel for the appellants 2 to 5 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 appellants 2 to 5 are 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 MACA No.1117 of 2007 6 compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has 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. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; MACA No.1117 of 2007 7 |Cost of extra nourishment and wage to<br>attendants|4,800| |---|---| |Transportation charges|1,000| |Medical expenses|75,865| |Loss of earnings|9,000| |Pain and suffering|12,000| |Loss of amenities and happiness in life|5,000| |Permanent disability|103,680| |Total|**211,345**| 12. The accident occurred on 08.04.2001. At the time of accident, the claimant was aged 29 years. He claimed a monthly income of Rs.1,500/- a fish seller. The Tribunal accepted the said amount as notional monthly income of the claimant, for the purpose of assessing compensation under various heads. 13. The document marked as Ext.A7 is the wound certificate and Ext.A8 is the discharge summary. As per medical records, in the accident, the claimant sustained multiple abrasion over right leg, abrasion over right left lateral 1/3[rd] of thigh, sutured wound over chin, post traumatic acute subdural haematoma in the right fronto tempero parietal region with underlying contusion craniotomy and decompression of subdural haematoma and loss of sight of right eye. He had MACA No.1117 of 2007 8 undergone inpatient treatment for a period of 48 days, in different spells. Ext.A14 series of medical bills are for a sum of Rs.75,865/-. 14. The document marked as Ext.A2 is the disability certificate issued by an individual doctor, who was examined as PW1, in which permanent disability of the claimant was assessed as 65%, on account of loss eye sight. The Tribunal noticed that PW1 is an orthopaedic specialist and not an eye specialist. The document marked as Ext.A12 is another disability certificate issued by PW4, who was an eye specialist, in which the permanent disability of the appellant, on account of loss of eye vision is assessed as 59%. The Tribunal took the percentage of permanent disability as 32%. Though the assessment of disability in Ext.12 disability certificate is not by a Medical Board, considering the nature of injuries sustained and the disabilities noted in Ext.12, the loss of future earning power of the claimant, who was a fish seller, on account of the injuries sustained in the accident and the resultant permanent disablement, is take as 40%, for the purpose of awarding compensation under various heads. MACA No.1117 of 2007 9 15. Towards loss of earning, the Tribunal awarded a sum of Rs.9,000/-, at the rate of Rs.1,500/- for a period of 6 months. Considering the nature of injuries sustained and the treatment the claimant 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. 16. On account of the injuries sustained in the accident, the claimant had undergone inpatient treatment for 48 days. The accident is of the year 2001. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained and the treatment the claimant had undergone, at various hospitals in Kerala and Karnataka, the compensation under this head is re-fixed as Rs.5,000/-, resulting an additional compensation of **Rs.4,000/-** (5,000 – 1,000). 17. Towards extra nourishment and wages to attendant (bystander expenses), the Tribunal awarded a consolidated amount of Rs.4,800/-. The accident is of the year 2001 and the claimant had undergone inpatient treatment for 48 days. MACA No.1117 of 2007 10 Considering the nature of injuries sustained and the treatment the claimant had undergone, the compensation under the head bystander expenses is re-fixed as Rs.7,200/- (150 x 48) and that under the head extra nourishment is re-fixed as Rs.4,800/(100 x 48), resulting an additional compensation of **Rs.7,200/-** [(7,200 + 4,800) – 4,800]. 18. Towards medical expenses, the Tribunal awarded a sum of Rs.75,865/-, covered by Ext.A14 series of medical bills. 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. 19. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. Considering the nature of injuries sustained and the treatment the claimant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.13,000/-** (25,000 – 12,000). 20. In **Sarla Verma v. Delhi Transport Corporation** MACA No.1117 of 2007 11 **[(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. ## 21. In **National Insurance Company Ltd. v. Pranay** **Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex MACA No.1117 of 2007 12 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. 22. In the instant case, as on the date of accident, the claimant was aged 29 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 18 applied by the Tribunal is not correct and the proper multiplier to be applied is **17** . 23. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,03,680/- (1,500 x 12 x 18 x 32/100). The monthly income of the claimant is taken as Rs.1,500/-. Applying the multiplier of 17 applicable to the age group of the claimant and the loss of future earning power as 40%, the compensation under the head permanent disability is re-fixed as Rs.1,22,400/- (1,500 x 12 x 17 x 40/100), resulting an additional compensation of **Rs.18,720/-** (1,22,400 - 1,03,680). 24. Towards loss of amenities the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained MACA No.1117 of 2007 13 and 40% loss of future earning power on account of those injuries, as taken by this Court, the compensation awarded by the Tribunal under this head is re-fixed as Rs.40,000/-, resulting an additional compensation of **Rs.35,000/-** (40,000 - 5,000). 25. In the result, the appellants 2 to 5/legal heirs of the deceased claimant will be entitled for payment of an additional compensation of **Rs.77,920/-** (Rupees seventy seven thousand nine hundred and twenty only) (4,000 + 7,200 + 13,000 + 18,720 + 35,000) in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The additional compensation granted in this appeal shall be apportioned among appellants 2 to 5 in the ratio 40:20:20:20. 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 claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to appellants 2 to 5 shall be made taking note of the law on the MACA No.1117 of 2007 14 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. Appellants 2 to 5 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 3[rd] respondent 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/-** JV **ANIL K.NARENDRAN JUDGE**