N. Sivadas v. Jayan P.P. and Anzar K.M. and Bajaj Allianz General Insurance Co. Ltd. (MACA No. 846 of 2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941** ## **MACA.No.846 OF 2013** **AGAINST THE AWARD IN O.P.(MV) NO.964/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA** ## **APPELLANT/PETITIONER:** **N. SIVADAS, S/O N.S.NARAYANA MENON, RESIDING AT SHARAVANAM HOUSE @ OTTOLIL PARAMBIL, L.B.S. ROAD, THIRUVANKULAM, KOCHI-682 305 BEDRIDDEN REPRESENTED BY HIS WIFE K.G.VIJAYAKUMARI, W/O N.SIVADAS, SHARAVANAM HOUSE @ OTTOLIL PARAMBIL, L.B.S. ROAD, THIRUVANKULAM, KOCHI-682 305 AS NEXT FRIEND AND LEGAL GUARDIAN.** **BY ADVS.SMT.ANEY PAUL SRI.PHILIP M. PRASAD** ## **RESPONDENTS/RESPONDENTS:** *** 1 JAYAN P.P., S/O PADMANABHAN, PALATTU HOUSE, 20/2673B, PALLURUTHY P.O., PERUMPADAPPU, ERNAKULAM, PIN 682 005.** *** 2 ANZAR K.M., S/O KUNJU MOHEMMED, 5/323, VALIAPARAMBIL HOUSE, MATTANCHERRY VILLAGE, PUTHIYAROAD JUNCTION, KOCHI-2.** - **1ST AND 2ND RESPONDENTS ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 22.08.2019 IN I.A.NO.1 OF 2019.** **3 THE BRANCH MANAGER, THE BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., II FLOOR, FINANCE TOWER, KALOOR, ERNAKULAM-682 017.** **R1, R3 BY ADV. SRI.THOMAS M.JACOB** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.846 of 2013 -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.964 of 2007 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 24.03.2007, while he was riding a motorcycle bearing registration No.KL-07/AJ-4843. At the place of accident, the motorcycle was hit by a pickup van bearing registration No.KL-7/AX-3687 owned by the 1[st] respondent, driven 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 pickup van by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/- 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 pickup van involved in the accident; however, denying involvement of that vehicle in the MACA No.846 of 2013 -3- said accident. The insurer contended that the accident occurred due to the rash and negligent riding of motorcycle by the appellant. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A19 were marked on the side of the appellant/claimant and PW1 was examined to prove Exts.A12 to A14 salary/leave certificates. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. The document marked as Ext.C1 is the disability certificate issued by the Medical Board at T.D. Medical College Hospital, Alappuzha assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident. 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 pickup van 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 MACA No.846 of 2013 -4- compensation of Rs.5,95,000/-, together with interest at the rate of 7% per annum from the date of petition, i.e., 14.09.2007, till realisation, with proportionate cost, and the 3[rd] respondent 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 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 MACA No.846 of 2013 -5- 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 MACA No.846 of 2013 -6- ## the Tribunal under various heads reads thus; |Sl.<br>No.|Head|Amount<br>claimed|Amount<br>allowed| |---|---|---|---| |1|Loss of earnings|48,000/-|38,400/-| |2|Pain and sufferings|1,00,000/-|50,000/-| |3|Loss of amenities|1,00,000/-|40,000/-| |4|Bystander expenses|50,000/-|5,500/-| |5|Extra nourishment charges|25,000/-|5,000/-| |6|Transportation charges|10,000/-|3,000/-| |7|Medical expenses|2,50,000/-|2,19,504/-| |8|Compensation for permanent<br>disability|10,00,000/-|2,33,472/-| ||**TOTAL**|**10,00,000/-**|**5,94,876/-**| 12. The accident occurred on 24.03.2007. At the time of accident, the appellant was aged 37 years. The appellant claimed a monthly income of Rs.12,000/- as Sales Representative of Alappat Brothers. In order to prove monthly income, the appellant produced Exts.A12 and A14 salary certificates, Ext.A13 leave certificate, which were marked through PW1. The Tribunal found that the monthly income shown in Ext.A12 as Rs.9,408/- depends on the quantum of sales effected by the appellant in a particular month. Since the salary shown in Ext.A12 is Rs.3,200/-, the Tribunal took the said amount as the monthly income of the appellant. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** MACA No.846 of 2013 -7- **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 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 MACA No.846 of 2013 -8- 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 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 2007, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra and also the evidence of PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.6,250/-, for the purpose of MACA No.846 of 2013 -9- assessing compensation under various heads. 16. The document marked as Ext.A7 is the discharge summary issued from MOSC Medical College Hospital. Other medical records are Exts.A8 to A10 and Ext.A15 to A17. As evident from medical records, in the accident, the appellant sustained bifrontal multiple contusion; tentorial subarachnoid hemorrhage; intraventricular bleed; compound depressed fracture frontal bone; fracutre on right femur; fracture on right tibia; open injury knee; left clavicle fracture; and fracture on right 4[th] metacarpel. He had undergone inpatient treatment for a total period of 53 days, under 5 different spells. Exts.A11 and A19 series of medical bills are for a sum of Rs.2,19,504/-. 17. The document marked as Ext.C1 is the disability certificate issued by the Medical Board at T.D. Medical College Hospital, Alappuzha, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 38%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. MACA No.846 of 2013 -10- 18. Towards loss of earning, the Tribunal awarded a sum of Rs.38,400/-, at the rate of Rs.3,200/- for a period of 12 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 12 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.6,250/-, the compensation under the head loss of earning is re-fixed as Rs.75,000/- (6,250 x 12), resulting an additional compensation of **Rs.36,600/-** (75,000 - 38,400). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 53 days under 5 different spells. The accident is of the year 2007. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,000/-. 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.4,500/-, resulting an additional compensation of **Rs.1,500/-** (4,500 - 3,000). 20. Towards bystander expenses, the Tribunal awarded MACA No.846 of 2013 -11- a sum of Rs.5,500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.5,000/-. The accident is of the year 2007 and the appellant had undergone inpatient treatment for 53 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.10,600/- (200 x 53), resulting an additional compensation of **Rs.5,100/-** (10,600 - 5,500). The compensation under the head extra nourishment is re-fixed as Rs.7,950/- (150 x 53), resulting an additional compensation of **Rs.2,950/-** (7,950 - 5,000). 21. The Tribunal awarded no amount towards damage to clothing. Considering the fact that the accident is of the year 2007, this Court deem it appropriate to grant a sum of **Rs.1,000/-** as compensation under this head. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.2,19,504/-, covered by Exts.A11 and A19 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 MACA No.846 of 2013 -12- no enhancement in this appeal. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.50,000/-. 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. 24. 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 MACA No.846 of 2013 -13- 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. 25. 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. 26. In the instant case, as on the date of accident, the appellant was aged 37 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 16 applied by the Tribunal is not correct and the proper multiplier to be applied is **15** . 27. Towards compensation for permanent disability, the MACA No.846 of 2013 -14- Tribunal awarded a sum of Rs.2,33,472/- (3,200 x 12 x 16 x 38/100). Since the monthly income of the appellant is re-fixed notionally as Rs.6,250/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of permanent disability as 38%, the compensation under the head permanent disability is re-fixed as Rs.4,27,500/- (6,250 x 12 x 15 x 38/100), resulting an additional compensation of **Rs.1,94,028/-** (4,27,500 - 2,33,472). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.40,000/-. In Ext.C1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 38%. Considering the nature of injuries sustained and 38% permanent disability on account of those injuries, as assessed in Ext.C1 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. 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.2,41,178/-** MACA No.846 of 2013 -15- (Rupees two lakh forty one thousand one hundred and seventy eight only) [36,600 + 1,500 + 5,100 + 2,950 + 1,000 + 1,94,028] 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 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 MACA No.846 of 2013 -16- of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr