Murali s/o Subramanian Thareparambil v. Kareem s/o Pareed and Johny M.K. 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.1882 OF 2012** **AGAINST THE AWARD IN OP(MV) NO.53/2006 DATED 04-10-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT/PETITIONER:** **MURALI S/O.SUBRAMANIAN THAREPARAMBIL HOUSE, VENGOLA VILLAGE ARAKKAPADY KARA, NOW RESIDING AT PULIMOOTTIL HOUSE MUDAVOOR POST, VELLOORKUNNUAM VILLAGE MUVATTUPUZHA.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/RESPONDENTS:** **1 KAREEM S/O.PAREED, KOCHUPARAMBIL HOUSE, PATTIMATTAM VILLAGE CHELATHUMKARAYIL KARA, PIN 683 562.** **R1 DELETED FROM THE PARTY ARRAY AS PER THE ORDER IN I.A.NO.1/2019 DATED 22.11.2019.** **2 JOHNY M.K. MENACHERY HOUSE, MAPPILACHERY ROAD, VYTTILACOCHIN- 682 019.** **3 THE ORIENTAL INSURANCE CO. LTD. EDAPALLY BRANCH. 682 024.** **R1-2 BY ADV. SRI.P.FAZIL R1, R3 BY ADV. SRI.M.JACOB MURICKAN R1 BY ADV. SMT.JAYASREE MANOJ R1 BY ADV. SMT.PARVATHI VENUGOPAL R1 BY ADV. SRI.SAJU THALIATH R1 BY ADV. SRI.V.S.SREEJITH R1 BY ADV. SRI.A.C.THOMAS ADHIKARAM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1882/2012 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.53 of 2006 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, 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 04.09.2005, while he was walking through the side of a public road. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL-7/N-3283 ridden by the 1[st] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,55,000/-, 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 motorcycle involved in the accident; however, pointing out that at the time of accident, the first respondent rider was not having valid driving licence. M.A.C.A.No.1882/2012 3 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 A9 were marked on the side of the appellant/claimant and the doctor who issued Ext.A8 disability certificate was examined as PW1. On the side of the respondents, Ext.B1 insurance policy of the motorcycle was marked. 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 riding of the motorcycle by the 1[st] respondent rider. Since insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to satisfy the award. However, on a finding that at the time of accident, the 1[st] respondent was riding motorcycle without a valid driving licence, the 3[rd] respondent insurer was given right to proceed against the 1[st] respondent owner to recover the amount of compensation awarded to the appellant/claimant. Under various heads, the Tribunal awarded a total compensation of Rs.1,36,902/-, which was rounded off to Rs.1,37,000/- together with interest at the rate of 8% per M.A.C.A.No.1882/2012 4 annum from the date of petition till date of deposit, with proportionate cost and the insurer was directed to satisfy the award. The insurer was granted recovery right against the 2[nd] respondent owner. 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 and also the learned Standing Counsel for the 3[rd] respondent/insurer. The 1[st] respondent is deleted from the party array at the risk of the appellant, vide a separate order dated this date in I.A.No.1 of 2019. 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 M.A.C.A.No.1882/2012 5 '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 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 M.A.C.A.No.1882/2012 6 ## the Tribunal under various heads reads thus; ||The compensation claimed under<br>various heads|Amount claimed|Amount allowed| |---|---|---|---| |1|Loss of earning|18,000/-|12,000/-| |2|General expenses, Transport to<br>hospital, damage to cloth, extra<br>nourishment, attendance expenses,<br>etc.|12,000/-|8,000/-| |3|Medical expenses|75,000/-|20,902/-| |4|Pain and suffering|40,000/-|25,000/-| |5|Loss of amenities|35,000/-|12,000/-| |6|Compensation for loss of earning<br>power<br>due<br>to<br>disability<br>3000x12x15x10/100|50,000/-|54,000/-| |7|Future medical expenses (removal<br>of implants)|25,000/-|5,000/-| ||Total|2,55,000/-|1,36,902/-| 12. The accident occurred on 04.09.2005. At the time of accident, the appellant was aged 42 years. The appellant claimed a monthly income of Rs.6,000/- as a barber. No reliable materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not chosen to mount the box. 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 M.A.C.A.No.1882/2012 7 (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 monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the M.A.C.A.No.1882/2012 8 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 2005, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.5,000/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A5 is the wound certificate issued from the MOSC Medical College Hospital, Kolencherry. The document marked as Ext.A6 is the treatment certificate. The appellant was admitted in that hospital on M.A.C.A.No.1882/2012 9 4.9.2005 with abrasion left forehead, laceration pinna left, laceration 3x1 cm right forearm anterior aspect, swelling tenderness right leg and abrasion left side abdomen. Ext.A6 is the treatment certificate issued from that hospital which would show that CT scan of head showed right temporal epidural haematoma with tentorial hyperdensity, right occipital contusion and fracture of left temporor parietal bone. X-ray showed fracture of both bone tibia and fibula right. He was managed with antioedema, anticonvulsants, analgesics antibiotics and other supportive measures. Ortho consultation was also done for closed fracture right tibia. IM nailing and fixation was done to his right leg. Dental consultation was done for avulsed teeth. He was discharged on 18.10.05 as he was clinically stable, with an advise to have a review after 3 weeks. Ext.A7 medical bills are for a sum of Rs.19,670.37/-. 17. Ext.A8 is the disability certificate issued by Dr.M.S.Bosalai, a Consultant Orthopaedic Surgeon, in which the percentage of whole body disability is assessed as 13%. The disabilities noted in Exts.A8 are; Right knee : flexion is possible up to 80-90 degree from 160-170 degree extension for which 13% disability was assessed. He was not able to squat properly M.A.C.A.No.1882/2012 10 and X-ray of right leg showed fracture tibia united with IM nail in situ. There is cross union with fibula. The doctor who issued Ext.A8 disability certificate was examined as PW1. He deposed in cross examination that, while assessing the disability, he had taken into account only orthopaedic disabilities. PW1 clarified that the appellant can carry on his occupation as a barber with the disability noted in the certificate. However, the said disability would affect his efficiency to carry on his profession as a barber. After considering the law laid down in **Rajkumar** **v. Ajay Kumar and another (2011(1) SCC 343)** , the Tribunal took the percentage of disability as 10% for the purpose of assessing compensation under various heads. The course adopted by the Tribunal after considering the evidence of PW1, cannot be said to be either arbitrary or illegal warranting an interference in this appeal. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.3,000/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is re-fixed as 5 months. Since the M.A.C.A.No.1882/2012 11 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.25,000/- (5,000 x 5), resulting an additional compensation of **Rs.13,000/-** (25,000 – 12,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 44 days. Towards transportation to hospital, damage to clothing, extra nourishment, attendance expenses, etc., the Tribunal awarded a sum of Rs.8,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head transportation to hospital is re-fixed as Rs.2,000/-. The accident is of the year 2005 and the appellant had undergone inpatient treatment for 44 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.6,600/- (150 x 44); the compensation under the head extra nourishment is re-fixed as Rs.4,400/- (100 x 44); and the compensation under the head damage to clothing is refixed as Rs.1,500/-. In the result, the additional compensation M.A.C.A.No.1882/2012 12 granted under the above heads comes to **Rs.6,500/-** [(2,000 + 6,600 + 4,400 + 1,500) - 8,000)]. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.20,902/-, 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. 21. 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 this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 22. 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 M.A.C.A.No.1882/2012 13 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. 23. 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. 24. In the instant case, as on the date of accident, the appellant was aged 42 years. In the light of the decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's** M.A.C.A.No.1882/2012 14 **case** referred to supra, the multiplier of 15 applied by the Tribunal is not correct and and the proper multiplier to be applied is **14** . 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.54,000/- (3,000 x 12 x 15 x 10/100). Since the monthly income of the appellant is re-fixed notionally as Rs.5,000/-, applying the multiplier of 14 applicable to the age group of the appellant and the percentage of permanent disability as 10%, the compensation under the head permanent disability is re-fixed as Rs.84,000/(5,000 x 12 x 14 x 10/100), resulting an additional compensation of **Rs.30,000/-** (84,000 – 54,000). 26. Towards loss of amenities, the Tribunal awarded a sum of Rs.12,000/-. In Ext.A8 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.A8 disability certificate, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. M.A.C.A.No.1882/2012 15 27. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.49,500/-** (Rupees Forty Nine Thousand Five Hundred only) [13,000 + 6,500 + 30,000] 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 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 shall be 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