Musthafa v. A. Giridharan, Nedumcholayil Abdul Majeed and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 17TH DAY OF DECEMBER 2019/26TH AGRAHAYANA, 1941** ## **MACA.No.456 OF 2008** **AGAINST THE AWARD IN OP(MV)No.2355/2007 DATED 02-04-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER:** **MUSTHAFA, S/O MUHAMMED, AGED 38 YEARS, NELLORAMMAL HOUSE, KODUVALLI POST, KOZHIKODE 673 572.** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENTS/RESPONDENTS:** - **1 A.GIRIDHARAN, S/O SHEKHARAN, DURGALAYAM, KOLLAPARAMBATH VEEDU, EDAKKAD AMSOM AND DESOM, KOZHIKODE.** - **2 NEDUMCHOLAYIL ABDUL MAJEED S/O.ABOOBACKER, AGED 36 YEARS, KODUVALLY AMSOM, PALAKUTTY DESOM, KOZHIKODE.** - **3 MS.NATIONAL INSURANCE CO. LTD. MANUAL SON'S BUILDING, IIND FLOOR,, KOZHIKODE.** **R3 BY ADV. SRI.JOE KALLIATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 456/2008 -2- ## **J U D G M E N T** The appellant is the claimant in O.P(MV)No.2355 of 2007 on the file of the Motor Accidents Claims Tribunal, Kozhikode, 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 30.04.1997, while he was walking along the side of a public road. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL-11/B-8744, owned by the 1[st] respondent, ridden 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 riding of motorcycle by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.75,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent owner filed written statement contending that he was not the owner of the motorcycle. He sold the vehicle to the 2[nd] respondent on MACA 456/2008 -3- 07.03.1997 vide agreement dated 31.03.1997. To his knowledge, the accident occurred due to the negligence on the part of the claimant. 3. The 2[nd] respondent rider filed written statement admitting the accident; however denying the negligence alleged against him. He contended that the accident occurred due to the negligence of the claimant in crossing the road. He has already paid a sum of Rs.15,000/- to the claimant as per the decision of the mediators on 16.06.1997 and the claimant has also executed agreement in that regard. Therefore, the claimant is not entitled to claim any further compensation. 4. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the vehicle; however pointing out violation of policy conditions, since the 2[nd] respondent rider was not having a valid and effective driving licence at the time of accident. The insurer contended that the compensation claimed under various heads are on the higher side and that the insurer may be permitted to recover the amount of compensation, if any, paid to the claimant by proceeding against the 1[st] respondent MACA 456/2008 -4- owner. 5. Before the Tribunal, Exts.A1 to A5 series were marked on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary evidence. 6. 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 2[nd] respondent rider. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured; however with a right to recover the amount compensation by proceeding against the 1[st] respondent owner, since the 2[nd] respondent rider was not holding a valid driving licence at the time of accident. Under various heads, the Tribunal awarded a total compensation of Rs.18,750/and after deducting a sum of Rs.15,000/- alleged to have been paid by the 2[nd] respondent rider, the claimant was granted a sum of Rs.3,750/-, together with interest at the rate of 6% per annum from the date of petition, i.e., 20.11.1997 till date of deposit. The 3[rd] respondent insurer was directed to satisfy the award and the MACA 456/2008 -5- insurer was permitted to recover the said amount by proceeding against the 1[st] respondent owner. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 8. Heard the learned counsel for the appellant and also the learned Standing Counsel for the 3[rd] respondent insurer. Despite service of notice, none appears for the 1[st] respondent owner. 9. 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. 10. 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 MACA 456/2008 -6- 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. 11. 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. 12. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; MACA 456/2008 -7- |Medical treatment including Ext.A5.series<br>Hospitalisation including incidental charges<br>Pain and suffering<br>Loss of income<br>Transportation<br>Loss of amenity/disability<br>Total|: Rs.5,000/-<br>: 750/-<br>: 7,000/-<br>: 3,000/-<br>: 500/-<br>: 2,500<br>---------------<br>Rs. 18,750/-| |---|---| 13. The accident occurred on 30.04.1997. At the time of accident, the appellant was aged 28 years. The appellant claimed a daily wage of Rs.150/- as a head load worker. 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.1,000/-, for the purpose of assessing compensation under various heads. 14. 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 MACA 456/2008 -8- 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. 15. 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 MACA 456/2008 -9- 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. 16. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 1997, 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.1,500/-, for the purpose of assessing compensation under various heads. 17. The document marked as Ext.A2 is the wound certificate and Ext.A3 is the reference card issued from the Medical College Hospital, Kozhikode. Ext.A4 is the physiotherapy appointment card. As per Ext.A2 wound certificate, the appellant sustained cut injury of 6 x 1 x 3 cm cutting the thorax muscle MACA 456/2008 -10- and another cut injury on the forearm cutting FCU and cut injury of ulna extending into little finger. The appellant had undergone inpatient treatment for a period of five days. Ext.A4 physiotherapy appointment card would show that he had undergone physiotherapy. Ext.A5 series of medical bills are for a sum of Rs.4,055.31. Ext.C1 is the disability certificate issued by the Medical Board, in which the percentage of permanent disability of the appellant on account of the injuries sustained in the accident is assessed as 8%. Disability noted in Ext.C1 disability certificate is mild grip weakness of finger. The Tribunal awarded only a consolidated sum of Rs.2,500/- under the head loss of amenities/disability. 18. The assessment of disability in Ext.C1 disability certificate was made by the Medical Board and not by an individual doctor. The disability noted in Ext.C1 is mild grip weakness of finger. The appellant is a head load worker. Considering the nature of injuries sustained and the disability noted in Ext.C1, the permanent disability of the appellant, on account of the injuries sustained in the accident, is taken as 5% MACA 456/2008 -11- for the purpose of awarding compensation under the head permanent disability. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.3,000/-, at the rate of Rs.1,000/- for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.1,500/-, the compensation under the head loss of earning is re-fixed as Rs.4,500/- (1,500 x 3), resulting an additional compensation of **Rs.1,500/-** (4,500 – 3,000) **.** 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 5 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. 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.1,000/-, resulting an additional compensation of **Rs.500/-** MACA 456/2008 -12- (1,000 - 500). 21. The Tribunal awarded no amount towards bystander expenses and extra nourishment. The accident is of the year 1997. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of **Rs.625/-** (125 x 5) as compensation towards bystander expenses and a further sum of **Rs.375/-** (75 x 5) towards extra nourishment. 22. The Tribunal awarded no amount towards damage to clothing. Considering the fact that the accident is of the year 1997, this Court deem it appropriate to grant a sum of **Rs.750/-** , under this head. 23. Towards medical expenses, the Tribunal awarded a sum of Rs.5,000/-, covered by Ext.A5 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. 24. As compensation towards pain and suffering, the MACA 456/2008 -13- Tribunal awarded a sum of Rs.7,000/-. 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. 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 MACA 456/2008 -14- **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. 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 28 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 proper multiplier to be applied is **17.** 28. The Tribunal awarded only a consolidated sum of Rs.2,500/- under the head loss of amenities/disability. Since the monthly income of the appellant is re-fixed notionally as Rs.1,500/-, applying the multiplier of 17 applicable to the age MACA 456/2008 -15- group of the appellant and the percentage of permanent disability as 5%, the compensation under the head permanent disability is re-fixed as Rs.15,300/- (1,500 x 12 x 17 x 5/100), resulting an additional compensation of Towards compensation for permanent disability, the Tribunal awarded a sum of **Rs.12,800/-** (15,300 – 2,500). Considering the nature of injuries sustained and the resultant 5% permanent disability, the appellant is granted a further sum of **Rs.7,500/-** under the head loss of amenities. 29. Though the 2[nd] respondent has raised a contention that he paid a sum of Rs.15,000/- to the appellant by way of settlement, the alleged agreement was not proved in accordance with law. In such circumstances, in the absence of any such materials, the Tribunal was not justified in deducting Rs.15,000/from the original compensation awarded. Therefore, the appellant will be entitled for payment of **Rs.15,000/-** deducted by the Tribunal from the original compensation awarded. 30. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.39,050/-** (Rupees Thirty Nine Thousand and Fifty only) [ 1,500 + 500 + 625 + 375 + 750 MACA 456/2008 -16- + 12,800 + 7,500 + 15,000] 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. In view of the finding as to violation of policy condition, the 3[rd] respondent insurer is permitted to recover the aforesaid amount by proceeding against the 1[st] respondent owner of the offending vehicle. The disbursement of the amount to the appellant/claimant 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** dsn