Naimudheen v. Dr. Ramachandran P.K. and Ors

MACA No. 4271 of 2019 -1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **MACA.No.4271 OF 2019(B)** **AGAINST THE AWARD IN OP(MV) No.981/2011 DATED 16-05-2019 OF III ADDITIONAL DISTRICT COURT, THRISSUR** ## **APPELLANT/S:** **MR.NAIMUDHEEN, AGED 50 YEARS S/O. V.K.SHERIF, VALIYAPURAYIL HOUSE, P.O.R.S. VELIYANNOOR, THRISSUR** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENT/S:** **1 DR.RAMACHANDRAN.P.K S/O NARYANAN MENON, PARIJATHAM NIVAS, PRIYADARSHINI NAGAR, AYYANTHOLE P.O., THRISSUR,PIN-680003 2 MR. RAVINDRANATH, PANOPHARM,20/630,P.O., KOTTAPUAM ROAD, THRISSUR,PIN-680 004 3 THE BRANCH MANAGER , RELIANCE GENERAL INSURANCE CO.LTD, BRANCH OFFICE, POOTHOLE P.O., THRISSUR,PIN-680 004** ## **OTHER PRESENT:** ## **SMT K.S.SANTHI- STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 4271 of 2019 -2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.981 of 2011 on the file of the Additional Motor Accidents Claims Tribunal, Thrissur, 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 30.03.2011, while he was riding a motorcycle bearing registration No.KL-8/F-7318. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-08/AM7311 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 the car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/- under various heads, which was later amended to Rs.6,00,000/-. 2. Before the Tribunal, 1[st] and 2[nd] respondents remained absent and they were set ex parte. 3. The 3[rd] respondent insurer filed written statement MACA No. 4271 of 2019 -3 admitting insurance coverage of the car involved in the accident; however, denying negligence alleged against its driver. The insurer contended that the accident occurred due to the rash and negligent riding of motorcycle by the appellant and that, the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A13 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. Both sides have not chosen to adduce any oral 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 the car 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.2,71,108/-, together with interest at the rate of 9% per annum from the date of petition till realisation, with proportionate cost, and the insurer was directed to MACA No. 4271 of 2019 -4 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 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 MACA No. 4271 of 2019 -5 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 the Tribunal under various heads reads thus; MACA No. 4271 of 2019 -6 |Bystander's expenses|3,400/-| |---|---| |Loss of income|24,000/-| |Transport expenses|5,000/-| |Damage to clothing|1,000/-| |Extra nourishment|5,000/-| |Medical expenses|1,10,108/-| |Pain and sufferings|40,000/-| |Loss of amenities|25,000/-| |Permanent disability|57,600/- (4,000x12x15x 8/100)| ||------------------| |Total|2,71,108| ||===========| 12. The accident occurred on 30.03.2011. At the time of accident, the appellant was aged 42 years. The appellant claimed a monthly income of Rs.4,000/- as plastic welder. Though no materials were placed before the Tribunal to prove the monthly income, the Tribunal took Rs.4,000/- as his notional monthly income for the purpose of assessing compensation under various heads. 13. The document marked as Ext.A2 is the wound certificate and Exts.A5 and A9 are discharge summaries. As per medical records, in the accident, the appellant sustained fracture of lower end of tibia and fracture of fibula. He had undergone inpatient treatment for 17 days. Ext.A8 series of MACA No. 4271 of 2019 -7 medical bills are for a sum of Rs.1,10,108/-. 14. The document marked as Ext.A13 is the disability certificate issued by an individual doctor, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. The appellant has not chosen to prove Ext.A13 by examining the doctor concerned. In the absence of any proof, instead of discarding the assessment of disability in Ext.A13 in toto, the Tribunal took the percentage of disability as 8%. The procedure adopted by the Tribunal, since the appellant failed to prove Ext.A13 by examining the doctor concerned, cannot be said to be arbitrary or illegal warranting an interference in this appeal. 15. Towards loss of earning, the Tribunal awarded a sum of Rs.24,000/- at the rate of Rs.4,000/- for a period of six months. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded by the Tribunal represents just and reasonable, which requires no enhancement in this appeal. MACA No. 4271 of 2019 -8 16. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 17 days. The accident is of the year 2011. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 17. Towards bystander expenses the Tribunal awarded a sum of Rs.3,400/-. The accident is of the year 2011 and the appellant had undergone inpatient treatment for 17 days. 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 also requires no enhancement in this appeal. 18. Towards damage to clothing, the Tribunal awarded a sum of Rs.1,000/-. The accident is of the year 2011. MACA No. 4271 of 2019 -9 Therefore, the compensation under this head is re-fixed as Rs.1,250/-, resulting an additional compensation of **Rs.250/-** (1,250 – 1,000). 19. Towards medical expenses, the Tribunal awarded a sum of Rs.1,10,108/-, covered by Ext.A8 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. 20. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.40,000/-. 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. 21. 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** MACA No. 4271 of 2019 -10 **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 of **9** for 56 to 60 years, multiplier of **7** for 61 to 65 years and multiplier of **5** for 66 to 70 years. ## 22. 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 MACA No. 4271 of 2019 -11 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. 23. In the instant case, as on the date of accident, the appellant was aged 29 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 15 applied by the Tribunal is not correct and the proper multiplier to be applied is **14** . 24. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.57,600/- (4,000 x 12 x 15 x 8/100). Since the correct and proper multiplier to be applied is **14** , the compensation under the head permanent disability is re-fixed as Rs.53,760/- (4,000 x 12 x 14 x 8/100), resulting an **excess payment** of **Rs.3,840/-** (57,600 – 53,760). 25. Towards loss of amenities the Tribunal awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and 8% permanent disability on account of those injuries, as fixed by the Tribunal, the compensation awarded MACA No. 4271 of 2019 -12 by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. In the result, the appellant/claimant is not entitled for payment of any additional compensation in this appeal. The appeal fails and the same is accordingly, dismissed. Sd/- **ANIL K.NARENDRAN JUDGE** das