Monachan Mathew Lanithottathil v. Murali Das Sagar, Rahmathulla So. Abdul Karim Moulavi and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941** ## **MACA.No.3024 OF 2009** **AGAINST THE AWARD IN OP(MV)No.254/2008 DATED 26-12-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** **MONACHAN MATHEW LANITHOTTATHIL HOUSE, CHIRAKKADAVU P.O., KANJIRAPPALLY.** **BY ADV. SRI.P.C.HARIDAS** ## **RESPONDENTS/RESPONDENTS:** |**1**|**MURALI DAS SAGAR**| |---|---| ||**KARUTHARA HOUSE, KANJETTUKARA,**| ||**AYROOR,, PATHANAMTHITTA.,**| ||**RC OWNER OF KL-1/2289 CAR)**| |**2**|**RAHMATHULLA SO. ABDUL KARIM MOULAVI**| ||**THAZHATHU VEDU, VAZHAKKALA,**| ||**ERUMELY P.O.**| |**3**|**THE ORIENTAL INSURANCE CO. LTD.**| ||**BRANCH OFFICE, KANJIRAPPALLY.**| ## **R1 BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.3024/2009 2 ## **JUDGMENT** The appellant is the claimant in O.P.(M.V.)No.254 of 2008 on the file of the Motor Accidents Claims Tribunal, Pala, a claim petition filed under Section 166 of the Motor Vehicles Act, claiming compensation on account of the injuries sustained by him in a motor accident which occurred on 20.01.2008 while he was standing on the side of a public road. At the place of accident, he was knocked down by a car bearing registration No.KL-01/S-2289, owned by the first respondent, driven by the second respondent and insured with the third respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the offending vehicle by the second respondent driver, claim petition was filed before the Tribunal claiming compensation under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The third respondent insurer filed written statement admitting insurance coverage of the offending vehicle; however denying negligence alleged against the second respondent driver. The insurer contended that the compensation claimed under various heads are on the higher M.A.C.A.No.3024/2009 3 side. 3. Before the Tribunal Exhibits-A1 to A13 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 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 offending vehicle by the second respondent driver. Since insurance 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.11,10,640/-, together with interest at the rate of 9% per annum from 26.04.2008 till realisation, with a cost of Rs.16,650/- and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, 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 M.A.C.A.No.3024/2009 4 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 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 M.A.C.A.No.3024/2009 5 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. 10. In the instant case, the compensation awarded by the ## Tribunal under various heads reads thus; |Part I|Rs.| |---|---| |Medical expenses|4,04,700/-| |Loss of earnings|8,010/-| |Bystander expenses|18,000/-| |Extra nourishment|2,000/-| |Damages to clothing|250/-| |Transport to Hospital|8,000/-| ||| |Part II|Rs.| |Pain and suffering|50,000/-| |Permanent partial disability resulting<br>in loss of earning capacity|5,44,680/-| |Future treatment expenses|50,000/-| |Loss of amenities|25,000/-| |Total|11,10,640/-| 11. The accident occurred on 20.1.2008. At the time of accident, the appellant was aged 30 years. The appellant claimed a monthly income of Rs.4,000/- by conducting a Home Appliance Shop at Erumeli. Though the Tribunal accepted the monthly income of Rs.4,000/- claimed in the claim petition, deducted 1/3[rd] of the same towards personal and living expenses of the M.A.C.A.No.3024/2009 6 appellant. Deduction towards personal and living expenses is permissible only in death cases, in which the claimants will be the legal representatives of the deceased, who claim compensation under the head loss of dependency. Therefore, deduction of 1/3[rd] of the monthly income towards personal and living expenses of the appellant for the purpose of awarding compensation under the head disability is legally impermissible and the appellant is entitled for compensation without any such deduction. 12. The document marked as Exhibit-A3 is the treatment certificate and Exts.A4, A5 and A6 are discharge summaries. As per medical records, after the accident, the appellant was admitted at Amritha Institute of Medical Sciences, Kochi. He had sustained fracture and dislocation of D3-D4 vertebra with damage to spinal code. He remained in the hospital for a long period, initially from 21.01.2008 to 05.04.2008. He underwent surgery. Ext.A4 discharge summary would show that he was readmitted in the hospital on 22.04.2008 and discharged on 07.05.2008. As per Exhibit-A5 discharge summary, he sustained multiple rib fracture. As per Exhibit-A6 discharge summary, he had undergone inpatient treatment at Mary Queen's Mission M.A.C.A.No.3024/2009 7 Hospital, Kanjirappally from 27.04.2008 to 07.08.2008. Ext.A12 medical bills are for a sum of Rs.4,04,700/-. 13. In Exhibit-A7 medical certificate issued from Amritha Institute of Medical Sciences, the permanent disability of the appellant on account of the injuries sustained in the accident is assessed as 100%. Before the Tribunal, the appellant was brought in an ambulance. The Tribunal found that the he is not able to do any work. He cannot even stand up. He requires the assistance of a bystander even for his daily requirements. Therefore, the Tribunal accepted the percentage of disability as assessed in Ext.A7, for the purpose of awarding compensation under various heads. 14. Towards loss of earning, the Tribunal awarded a sum of Rs.8,000/- (4,000 x 2/3 x 3). Since compensation under the head loss of earning power (disability compensation) is awarded to the appellant taking 100% loss of earning power, applying the multiplier applicable to the age of the appellant as on the date of accident, he is not entitled for compensation under the head loss of earning. 15. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 183 days. M.A.C.A.No.3024/2009 8 Towards transportation to hospital, the Tribunal awarded a sum of Rs.8,000/-. The accident is of the year 2008. 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. 16. Towards bystander expenses, the Tribunal awarded a sum of Rs.18,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2008 and the appellant had undergone inpatient treatment for 183 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.36,600/- (200 x 183), resulting an additional compensation of **Rs.18,600/-** (36,600-18,000). The compensation under the head extra nourishment is re-fixed as Rs.27,450/- (150 x 183), resulting an additional compensation of **Rs.25,450/-** (27,450-2,000). 17. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the M.A.C.A.No.3024/2009 9 accident is of the year 2008, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.750/-** (1,000 - 250). 18. Towards medical expenses, the Tribunal awarded a sum of Rs.4,04,700/-, covered by Ext.A12 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.50,000/-. Due to fracture and dislocation of spinal cord, the appellant cannot even stand up. He is under urine catheter. Due to spinal injury, he requires assistance of a bystander even for his daily requirements. Considering the nature of injuries sustained, the treatment the appellant had undergone and also his present physical condition, as borne out from medical records, the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.1,50,000/-, resulting an additional compensation of **Rs.1,00,000/-** (1,50,000-50,000). 20. As compensation towards future treatment expenses, the Tribunal awarded a sum of Rs.50,000/-. Considering the M.A.C.A.No.3024/2009 10 physical condition of the appellant, as borne out from medical records, the compensation awarded by the Tribunal under this head is re-fixed as Rs.1,50,000/-, resulting an additional compensation of **Rs.1,00,000/-** (1,50,000 – 50,000), which will carry no interest. 21. Towards compensation for loss of future earning, the Tribunal awarded a sum of Rs.5,44,680/- (4,000 x 12 x 17 x 2/3). The learned counsel for the appellant would submit that considering the nature of disability assessed in Ext.A7 disability certificate, the appellant is entitled for payment of compensation towards loss of future earning (disability compensation), adding future prospects. 22. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not M.A.C.A.No.3024/2009 11 able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a notional monthly income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10th Standard, she would have had a better future in terms M.A.C.A.No.3024/2009 12 of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma** M.A.C.A.No.3024/2009 13 **Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 23. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** , to injured persons having higher percentage of functional disability. 24. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, the determination of 'just compensation' has to M.A.C.A.No.3024/2009 14 be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in **Sarla Verma [(2009) 6 SCC 121]** and it has been approved in **Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65]** . The age and income, as stated earlier, have to be established by adducing evidence. The Tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the Tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. In **Pranay Sethi** the Apex Court approved the principle of 'standardisation' so that a specific and certain M.A.C.A.No.3024/2009 15 multiplicand is determined for applying the multiplier on the basis of age. 25. In **Rajesh v. Rajbir Singh [(2013) 9 SCC 54]** , a ThreeJudge Bench of the Apex Court held that, in case of selfemployed persons also, if the deceased victim is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. In **Munna Lal Jain v. Vipin Kumar Sharma [(2015) 6 SCC 347]** another ThreeJudge Bench followed the principle stated in **Rajesh** . In **Pranay Sethi** , after expressing the opinion that the dicta laid down in **Reshma Kumari** being earlier in point of time would be a binding precedent and not the decision in **Rajesh** , the Constitution Bench observed that, in **Munna Lal Jain** , the ThreeJudge Bench should have been guided by the principle stated in **Reshma Kumari** which has concurred with the view expressed in **Sarla Devi** or in case of disagreement, it should have been well advised to refer the case to a Larger Bench. 26. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench held that, while determining the income, an addition of **50%** of actual salary to the income of the deceased towards future prospects, where the deceased had a **permanent** M.A.C.A.No.3024/2009 16 **job** and was **below the age of 40 years** , should be made. The addition should be **30%** , if the age of the deceased was **between 40 to 50 years** . In case the deceased was between the age of **50 to 60 years** , the addition should be **15%** . Actual salary should be read as actual salary less tax. The Apex Court held further that, in case the deceased was **self-employed** or on a **fixed salary** , an addition of **40%** of the established income should be the warrant where the deceased was **below the age of 40 years** . An addition of **25%** where the deceased was **between the age of 40 to 50 years** and **10%** where the deceased was between the age of **50 to 60 years** should be regarded as the necessary method of computation. The established income means the income minus the tax component. 27. In the instant case, at the time of accident, the appellant was aged 30 years. He claimed a monthly income of Rs.4,000/- by conducting a Home Appliance Shop. As already noticed, no reliable materials were placed before the Tribunal to show that, at the time of accident, the appellant had a permanent job. Therefore, he can only be treated as a self employed. In view of the law laid down by the Apex Court in **Pranay Sethi,** an addition of **40%** of the notional monthly M.A.C.A.No.3024/2009 17 income of the appellant, as re-fixed in this appeal considering the economic conditions prevailing at the time of accident and taking note of the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and in **Syed Sadiq** referred to supra, can be made towards future prospects, since the appellant was aged **below 40 years** . 28. Therefore, for the purpose of re-fixing the compensation under the head loss of earning (disability compensation), **40%** of the monthly income of the appellant notionally re-fixed in this appeal as Rs.4,000/-, i.e., a sum of Rs.1,600/- (4,000 x 40/100) has to be added towards future prospects. In the result, the monthly income of the appellant, for the purpose of re-fixing the compensation under the head loss of dependency, is reckoned as Rs.5,600/- (4,000 + 1,600). 29. 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 M.A.C.A.No.3024/2009 18 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. 30. 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. 31. In the instant case, as on the date of accident, the appellant was aged 30 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 M.A.C.A.No.3024/2009 19 correct and proper. 32. Towards compensation for loss of future earning (disability compensation), the Tribunal awarded a sum of Rs.5,44,680/- (4,000 x 12 x 17 x 2/3). In this appeal, the monthly income of the appellant has already been re-fixed as Rs.4,000/-. No deduction towards personal and living expenses is permissible while awarding disability compensation. Adding 40% of the notional monthly income of the appellant towards future prospects (4,000 + 1,600 = 5,600); applying the multiplier of 17 applicable to the age group of the appellant; and adding the percentage of permanent disability assessed as 100%, the compensation under the head loss of future earning (disability compensation) is re-fixed as Rs.11,42,400/- (5,600 x 12 x 17 x 100/100), resulting an additional compensation of **Rs.5,97,720/-** (11,42,400 – 5,44,680). 33. Towards loss of amenities, the Tribunal awarded a sum of Rs.25,000/-. In Ext.A7 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 100%. In **Robin Babu v. Kunjappan and others [2015 (4) KHC 91]** , the Division Bench of this Court awarded a sum of Rs.1,00,000/- under the M.A.C.A.No.3024/2009 20 head inconvenience, difficulties and discomforts in life to an injured, in a motor accident, who suffered a major crash injury, leading to amputation of his right leg, below knee. In the instant case, due to fracture and dislocation of spinal cord, the appellant requires the assistance of a bystander even for his daily requirements. The compensation awarded by the Tribunal under the head pain and suffering has already been re-fixed in this appeal as Rs.1,00,000/-. Considering the nature of disabilities noted in Ext.A7, resulting a permanent disability of 100%, and also the physical condition of the appellant, the compensation under the head loss of amenities is re-fixed as Rs.1,00,000/-, resulting an additional compensation of **Rs.75,000/-** (1,00,000 - 25,000). 34. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.9,17,520/-** (Rupees Nine Lakhs Seventeen Thousand Five Hundred and Twenty only) [18,600 + 25,450 + 750 + 1,00,000 + 1,00,000 + 5,97,720 + 75,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding interest for Rs.1,00,000/-granted as additional compensation under the head future treatment expenses. The 3[rd] M.A.C.A.No.3024/2009 21 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 disbursement of the amount 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.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. Sd/- ## **ANIL K.NARENDRAN JUDGE** csl