Mohammed Junais @ Junais S/O Humayoon Kabeer v. Jose K Martin, K Naushad and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** ## **MACA.No.956 OF 2010** **AGAINST THE AWARD IN OPMV 320/2006 DATED 22-01-2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **MOHAMMED JUNAIS @ JUNAIS S/O. HUMAYOON KABEER, KUTTIKKATTTIL HOUSE, POST PALLIKKUNNU, AVANAKKUNNU, MANNARKKAD TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.R.SREEHARI** ## **RESPONDENTS/RESPONDENTS:** **1 JOSE K,MARTIN, S/O.KASMEL MARIAMMA, NELLIKKAL ESTATE, PANDIPERIYAR. 2 K.P.NOUSHAD, S/O. MAMMU KUNNATH PARAMBIL HOUSE, PAN BAZAR, TIRUR,, MALAPPURAM DISTRICT. 3 NATIONAL INSURANCE CO. LTD. DIV. NO.10,FLAT NO.101-106, N-I, BMC HOUSE,, CONNAUGHT PLACE, NEW DELHI 110001, REPRESENTED BY THE DIVISIONAL MANGER, NATIONAL INSURANCE CO. LTD., COLLANNUR DEVASSY SMARAK BUILDING, ROUND NORTH,, THRISSUR** **R3 BY ADV. SMT.DEEPA GEORGE R3 BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.956 OF 2010** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.320 of 2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam, 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 21.01.2006, while he was travelling in a maruthi van bearing registration No.KL10/U-3003, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the driver lost control over the vehicle and it capsized. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of van by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.15,00,000/-, 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 maruthi van involved in the accident; however, denying negligence alleged against the 1[st] **MACA.No.956 OF 2010** 3 respondent driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A35 were marked on the side of the appellant/claimant and PWs 1 to 3 were examined. 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 van by the 1[st] respondent driver. 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.6,05,300/-, together with interest at the rate of 7% per annum from the date of petition, i.e., 22.3.2006 till date of realisation, with a cost of Rs.7,000/-. 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.956 OF 2010** **==> picture [7 x 7] intentionally omitted <==** 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 '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 **MACA.No.956 OF 2010** 5 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: |Tribunal under various heads reads thus:|| |---|---| |Medical expenses|2,13,700| |Transportation expenses, extra nourishment and<br>damage to clothing|20,000| |Bystanders expense|5,200| |Pain and Suffering|25,000| |Loss of amenities|10,000| |Loss of earnings|21,000| |Incidental expense|10,000| |Future treatment expense|25,000| |Compensation for disability|2,75,400| |Total|**6,05,300**| 12. The accident occurred on 21.01.2006. At the time of accident, the appellant was aged 23 years. The appellant claimed a monthly income of Rs.7,000/- as Chief Mechanic in a car dealership. In order to prove monthly income, Ext.A22 salary **MACA.No.956 OF 2010** 6 certificate was produced, which was proved through PW2. As per Ext.A22, the monthly income of the appellant comes to Rs.4,750/-. The appellant was examined as PW-1. The Tribunal fixed the monthly income notionally as Rs.3,000/-, for the purpose of assessing compensation under various heads. 13. Taking into consideration the oral evidence of PWs 1 and 2, the monthly income of the appellant reflected in Ext.A22 salary certificate as Rs.4,750/- can be accepted for the purpose of assessing compensation under various heads, since the same is not on the higher side, considering the economic conditions prevailing at the time of accident. 14. The document marked as Ext.A3 is the wound certificate and Exts.A4, A5, A8 and A10 are discharge summaries. Ext.A3 wound certificate issued from Al-Shifa Hospital, Perinthalmanna would show that, in the accident, the appellant sustained lacerated wound left temporal region, multiple abrasion left shoulder, abrasion left elbow, contusion cervical spine and contusion pinna left. He was admitted in hospital on 21.01.2006 and discharged on 25.1.2006. The injuries noted are oeteo abrasion with laceration 3 x 2 cm left elbow, multiple abrasion, head injury/cervical spine injury. Ext.A5 is another discharge **MACA.No.956 OF 2010** 7 summary issued from the same hospital. The date of admission is 21.1.2006 and the date of discharge is 24.1.2006. Ext.A8 is another discharge summary issued from Kovai Medical Centre and Hospital, Coimbatore. The date of admission is 25.01.2006 and discharged on 28.1.2006. The final diagnosis was left brachial plexus injury and C1-C2 subluration with rotation. The investigation noted as CT cervical spine C1-C2 subluxation with rotation. Exts.A10 and A30 series are copies of discharge summaries issued from Christian Medical College, Vellore. He was admitted in that hospital on 12.7.2006 and discharged on 19.7.2006. The diagnosis was total brachial plexus injury left upper limb C6-T1, root avulsion and C5 high intracranial injury. He was again admitted on 2.2.2009 and discharged on 11.2.2009. The diagnosis was total brachial plexus palsy left side (established) on staged reconstruction. Exts.A6, A7, A9, A11, A12, A13, A20 and A31 are investigation reports of the appellant at various stages of his treatment. 15. Ext.A14 is the disability certificate issued by PW2, Asst. Professor in Orthopaedics, attached to the Medical College Hospital, Thrissur after examining the appellant on 26.11.2007. At that time, the appellant had complete brachial plexus injury **MACA.No.956 OF 2010** 8 (L) (with no muscle power and sensation in (L) upper limb). He had limitation of cervical spine movements. Rotation of neck was limited and there was evidence of C1-C2 subluxation with early arthritis in C1-C2 joint. On that basis PW2 assessed the permanent whole body disability of the appellant as 50%. The Tribunal scaled down the percentage of permanent disability as 45%, without assigning any reason. Considering the nature of injuries sustained and the disabilities noted in Ext.A14 disability certificate, the permanent disability of the appellant can be taken as 50%, as assessed in Ext.A14, for the purpose of awarding compensation under various heads. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.21,000/-, at the rate of Rs.3,000/- for a period of 7 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 7 months fixed by the Tribunal for granting loss of earning is re-fixed as 10 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,750/-, the compensation under the head loss of earning is re-fixed as Rs.47,500/- (4,750 x 10), resulting an additional compensation of **Rs.26,500/-** (47,500 – 21,000) _._ **MACA.No.956 OF 2010** 9 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 26 days. Towards transportation to hospital, extra nourishment and damage to clothing, the Tribunal awarded a sum of Rs.20,000/-. Towards bystander expenses the Tribunal awarded a further sum of Rs.5,200/-. Along with I.A.No.1425 of 2010, the appellant produced railway tickets for a total sum of Rs.3,309/-, which is not disputed by the learned Standing Counsel for the 3[rd] respondent insurer. Therefore, the appellant is granted an additional compensation of **Rs.3,309/-** under the head transportation charges. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded by the Tribunal under the other heads represents just and reasonable compensation, which requires no enhancement in this appeal. 18. Towards medical expenses, the Tribunal awarded a sum of Rs.2,13,694/-, which was rounded off to Rs.2,13,700/-. Ext.A19 series of medical bills are for a sum of Rs.1,41,906/- and Ext.A35 series of medical bills are for a sum of Rs.71,788/-. Along with I.A.No.1425 of 2010, the appellant produced medical bills for a further sum of Rs.30,805/-, which is also not disputed **MACA.No.956 OF 2010** 10 by the learned Standing Counsel for the 3[rd] respondent insurer. Therefore, the appellant is granted an additional compensation of **Rs.30,805/-** under this head. 19. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. 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 the head pain and suffering is refixed as Rs.40,000/-, resulting an additional compensation of **Rs.15,000/-** (40,000 – 25,000). 20. 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], **MACA.No.956 OF 2010** 11 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 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 appellant was aged 23 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 17 applied by the Tribunal is not correct and and the proper multiplier to be applied is **18** . 23. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.2,75,400/- (3,000 x 12 x 17 x 45/100). Since the monthly income of the appellant is re-fixed **MACA.No.956 OF 2010** 12 notionally as Rs.4,750/-, applying the multiple of18 applicable to the age group of the appellant and the percentage of permanent disability as 50%, the compensation under the head permanent disability is re-fixed as Rs.5,13,000/- (4,750 x 12 x 18 x 50/100), resulting an additional compensation of **Rs.2,37,600/-** (5,13,000 – 2,75,400). 24. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. In Ext.A14 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 50%. Considering the nature of injuries sustained and the permanent disability on account of those injuries noted in Ext.A14 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.60,000/-, resulting an additional compensation of **Rs.50,000/-** (60,000 – 10,000) under this head. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.3,63,214/-** (Rupees three lakhs sixty three thousand two hundred and fourteen only) [26,500 + 3,309 + 30,805 + 15,000 + 2,37,600 + 50,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] **MACA.No.956 OF 2010** **==> picture [13 x 7] intentionally omitted <==** 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 granted in this appeal shall be made to the appellant/claimant as per the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019. This appeal is disposed of as above. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN** JV **JUDGE**