Muhammed Yusef v. Chandrasekhara Pillai @ Chandran Pillai and New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941** ## **MACA.No.534 OF 2011** **AGAINST THE AWARD IN OP(MV)NO.1231/2005 OF ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT/PETITIONER :** **MUHAMMED YUSEF, AGED 53 YEARS S/O.ALIKUNJU, PUNNATHRA, KAKKAZHOM P.O.,, ALAPPUZHA.** **BY ADVS. SRI.C.C.SALAS SMT.C.C.JANCY SMT.M.J.SAJITHA SMT.V.SUSMITHA** ## **RESPONDENTS/RESPONDENTS :** **1 CHANDRASEKHARA PILLAI @ CHANDRAN PILLAI, S/O.GOPALA KRISHNA KURUP, CHAKKALETHU PUTHEN VEETTIL, NEAR ALA PANCHAYATH OFFICE,PENNUKKARA, CHENGANNUR689121. *2 SONU SREEDHARAN S/O.SREEDHARA KARANAVAR SONU SERVICES, INDIAN OIL CORPORATION DEALER,, KALLINMEL P.O., MEVELIKKARA-690101.** **(DELETED)** **THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 12.04.19 IN IA.NO.1/2019 IN MACA 534/2011 3 NEW INDIA ASSURANCE CO.LTD. KAYAMKULAM, REPRESENTED BY ITS MANAGER-690502.** **R3 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.534 OF 2011** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1231 of 2005 on the file of the Additional Motor Accidents Claims Tribunal, Alappuzha, 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 25.02.2005, while he was pedalling bicycle. At the place of accident, he was knocked down by a tanker lorry bearing registration No.KL-P/4333 driven by the 1[st] respondent, owned 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 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent driver and the 2[nd] respondent owner remained absent and they were set ex parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the lorry involved in the **MACA.No.534 OF 2011** **3** accident; however, denying the negligence alleged against its driver. They contended that the accident occurred due to the negligence on the part of the appellant/claimant in crossing the road. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. 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 tipper lorry by its 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.26,866/-, together with interest at the rate of 6% per annum from the date of petition till realisation, 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. **MACA.No.534 OF 2011** **4** 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 '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. **MACA.No.534 OF 2011** **5** 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 nonviolation of the principle of equitability. 11. In the instant case, the compensation awarded by ## the Tribunal under various heads reads thus; |Head|Amount<br>claimed<br>(Rs.)|Amount<br>allowed<br>(Rs.)|Remarks| |---|---|---|---| |Transport to hospital|2,000/-|750/-|| |Treatment & medical<br>expenses|20,000/-|2,916/-|| |Extra nourishment|3,000/-|5,200/-|(26 days x Rs.200/-| |Pain & suffering|20,000/-|10,000/-|| |Loss of amenities|5,000/-|2,000/-|| |Loss of earning power|50,000/-|6,000/-|(Rs.3000x2 months)| **MACA.No.534 OF 2011** **6** Total amount claimed Rs.1,50,000/- **26,866/-** 12. The accident occurred on 25.02.2005. At the time of accident, the appellant was aged 48 years. The appellant claimed a monthly income of Rs.5,000/- as manual labourer. The appellant has not chosen to mount the box to prove his monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.3,000/-, 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 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 **MACA.No.534 OF 2011** **7** 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 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 **MACA.No.534 OF 2011** **8** 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 2005, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.5,000/claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 16. The documents marked as Ext.A3 is the wound certificate and Ext.A5 is the discharge card. As per the medical records, in the accident, the appellant sustained lacerated wound over scalp 5cm.; lacerated wound on forehead 5x2cm.; multiple lacerated wound on both legs; contusion on right frontal lob; fracture on clavicle; fracture on scapula; fracture on right big toe; fracture on distal end of phalanx; and injury of cervicle vertebrae. He had undergone **MACA.No.534 OF 2011** **9** inpatient treatment for a period of 26 days. Ext.A7 is the medical bills for a sum of Rs.2,015.11/-. 17. During the pendency of this appeal, by the order of this Court dated 04.11.2019, the appellant was referred to the Medical Board, Medical College Hospital, Alappuzha in order to assess his permanent disability, if any, on account of the injuries sustained in the accident. The report of the Medical Board dated 28.11.2019 is placed on record, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 8%. 18. The learned Standing Counsel for the 3[rd] respondent insurer would submit that the insurer has no objection in granting disability compensation to the appellant, based on the percentage of disability assessed in the disability certificate dated 28.11.2019 issued by the Medical Board. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.3,000/- for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 months fixed by the Tribunal **MACA.No.534 OF 2011** **10** for granting loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.5,000/-, the compensation under the head loss of earning is re-fixed as Rs.30,000/- (5,000 x 6), resulting an additional compensation of **Rs.24,000/-** (30,000 – 6,000). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 26 days. The accident is of the year 2005. Towards transportation to hospital, the Tribunal awarded a sum of Rs.750/-. 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.2,500/-, resulting an additional compensation of **Rs.1,750/-** (2,500 - 750). 21. Towards extra nourishment, the Tribunal awarded a sum of Rs.5,200/-. The Tribunal awarded no compensation towards bystander expenses. The accident is of the year 2005 and the appellant had undergone inpatient treatment for 26 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from **MACA.No.534 OF 2011** **11** medical records, the compensation awarded by the Tribunal under the head extra nourishment cannot be said to be on the lower side. The appellant is granted a sum of **Rs.3,900/-** (150 x 26) as compensation under the head bystander expenses. 22. Towards damage to clothing and articles, no amount has been awarded by the Tribunal. Considering the fact that the accident is of the year 2005, this Court deem it appropriate to grant a sum of **Rs.750/-** as compensation under this head. 23. Towards treatment and medical expenses, the Tribunal awarded a sum of Rs.2,916/-, covered by Ext.A7 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. 24. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the **MACA.No.534 OF 2011** **12** compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.10,000/-** (20,000 -10,000). 25. 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 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of **11** for 51 to 55 years, multiplier **MACA.No.534 OF 2011** ## **13** of **9** for 56 to 60 years, multiplier of **7** for 61 to 65 years and multiplier of **5** for 66 to 70 years. ## 26. 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. 27. In the instant case, as on the date of accident, the appellant was aged 48 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 to be applied is **'13'** . 28. Towards compensation for permanent disability, no compensation has been awarded by the Tribunal. The permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 8% by the Medical Board. Since the monthly income of the appellant is re-fixed notionally as Rs.5,000/-, applying the multiplier of 13 applicable to the age group of the appellant and the percentage of permanent disability as 8%, the compensation **MACA.No.534 OF 2011** **14** under the head permanent disability is fixed as **Rs.62,400/-** (5,000 x 12 x 13 x 8/100). 29. Towards loss of amenities, the Tribunal awarded a sum of Rs.2,000/-. In the disability certificate issued by the Medical Board at the Medical College Hospital, Alappuzha, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 8%. Considering the nature of injuries sustained and 8% permanent disability on account of those injuries, the compensation awarded by the Tribunal under this head is refixed as Rs.10,000/-, resulting an additional compensation of **Rs.8,000/-** (10,000 – 2,000). 30. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.1,10,800/-** (Rupees One lakh ten thousand and eight hundred only) [24,000 + 1,750 + 3,900 + 750 + 10,000 + 62,400 + 8,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period **MACA.No.534 OF 2011** **15** 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 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.D1-62475/2016 dated 07.11.2019. The appellant shall provide 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** AV/29/1