Nalini v. Alikoya and others

## **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.1395 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.2929/2003 DATED 16-10-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER IN OP(MV):** **M.NALINI, W/O.HARIDASAN, AGED 46 YEARS MUTHUMANA HOUSE,PERUMANNA POST,KOZHIKODE.** **BY ADV. SRI.K.M.JAMALUDHEEN** ## **RESPONDENTS:** - **1 ALIKOYA, S/O.KUNHOOTTY, PULLATHU HOUSE, VENGERI,KOZHIKODE.** - **2 THE ORIENTAL INSURANCE CO.LTD, SREENIDHI BUILDING,NARAYANANAGARAM,VATAKARA,KOZHIKODE.** - **3 ABDULRAHIMAN, S/O.MAMU HAJI PALLIYARAKKAL HOUSE,ELETTIL,KODUVALLY,KOZHIKODE.** - **4 THE NATIONAL INDIA INSURANCE CO.LTD BRANCH OFFICE, NOOR COMPLEX,NR.ARAYIDATHPALAM,, MAVOOR ROAD,KOZHIKODE.** ## **R2 BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1395 OF 2009** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2929 of 2003 on the file of the Principal 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 her in a motor accident, which occurred on 13.06.2003, while she was travelling on a motorcycle bearing registration No.KL-11/E-6308, as pillion rider. At the place of accident, the motorcycle was hit by a bus bearing registration No.KL-7/H-324, owned by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant was thrown out of the motorcycle and another bus bearing registration No.KL11/H-1323, owned by the 3[rd] respondent and insured with the 4[th] respondent, ran over her and she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus bearing registration No.KL-7/H324 by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, the 2[nd] respondent filed written **MACA.No.1395 OF 2009** **3** statement admitting the insurance coverage of the bus bearing registration No.KL-7/H-324; however denying negligence alleged against its driver. The insurer contended that the accident occurred due to the negligence on the part of the rider of the motorcycle and also the driver of bus bearing registration No.KL-11/H-1323. 3. The 4[th] respondent insurer filed written statement admitting the insurance coverage of the bus bearing registration No.KL-11/H-1323; however, denying the negligence alleged against its driver. The insurer alleged contributory negligence on the rider of motorcycle and the driver of the other bus. 4. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant. On the side of the respondents, a copy of the case diary was marked as Ext.B1. 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 bus bearing registration No.KL-7/H-324 by its driver. Since insurance coverage of the said vehicle was not in dispute, **MACA.No.1395 OF 2009** **4** the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.89,300/-, together with interest at the rate of 7% per annum from 18.12.2003, with a cost of Rs.250/- 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. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 2[nd] 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 **MACA.No.1395 OF 2009** **5** 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. **MACA.No.1395 OF 2009** **6** 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Heads|Amount allowed| |---|---| |Medical bills|43,000/-| |Incidental charges|2,000/-| |Pain and suffering|10,000/-| |Disability|19,800/-| |Loss of notional income|6,000/-| |Disfiguration|6,000/-| |Future treatment|2,000/-| |Transportation|500/-| |Total|89,300/-| 12. The accident occurred on 13.06.2003. At the time of accident, the appellant was aged 40 years. She was a teacher earning a monthly income of Rs.7,789/-, as evident from Ext.A5 salary certificate. Due to the accident, she had availed medical leave for 57 days from 13.06.2003 to 08.08.2003. Since there was no financial loss or occupational disability, the Tribunal fixed the monthly income notionally as Rs.1,000/-, for the purpose of assessing compensation under various heads. 13. The document marked as Ext.A4 is the accidentcum-wound certificate and Ext.A2 is the discharge summary. As per the medical records, the appellant **MACA.No.1395 OF 2009** **7** sustained fracture of both bones (R) forearm and degloving injury and fracture of distal humerus (R). She had undergone, inpatient treatment for a period of 15 days. Ex.A6 leave certificate would show that the appellant had availed medical leave for 57 days from 13.06.2003 to 08.08.2003. 14. In Ext.C1 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 11%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 15. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 15 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.1,500/-, resulting an additional compensation of **Rs.1,000/-** (1,500 - 500). **MACA.No.1395 OF 2009** **8** 16. Towards bystander's expenses and extra nourishment, no amount has been awarded by the Tribunal. Instead, under the head incidental charges, the Tribunal awarded a sum of Rs.2,000/-. 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 her a sum of Rs.2,250/- (150 x 15) under the head bystander's expenses and a further sum of Rs.1,500/- (100 x 15) under the head extra nourishment. After deducting Rs.2,000/- awarded by the Tribunal under the head incidental expenses, the appellant is entitled for payment of an additional compensation of **Rs.1,750/-** [(2,250 + 1,500) – 2,000] under these heads. 17. Towards future treatment, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature injuries sustained by the appellant, the compensation under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 18. Towards medical expenses, the Tribunal awarded a sum of Rs.43,000/-, covered by Ext.A3 series of medical bills. In the absence of any further materials, the **MACA.No.1395 OF 2009** **9** compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. 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 compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 – 10,000) under this head. 20. 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** **MACA.No.1395 OF 2009** **10** **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. ## 21. 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. 22. The disability of 11%, certified in Ext.C1 disability certificate, that had arisen on account of the injuries sustained in the accident, will have no bearing on the earning capacity of the appellant as a teacher, till her **MACA.No.1395 OF 2009** ## **11** retirement from service on attaining the age of superannuation. However that disability may have an adverse impact on her earning power, after her retirement from service. Therefore, taking a monthly income after retirement and applying the multiplier of **9** applicable to the age group of **56 - 60 years** , compensation has to be granted to the appellant under the head permanent disability. For the said purpose, the notional monthly income of the appellant after retirement is fixed as Rs.4,000/-. 23. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.19,800/- (1,000 x 12 x 15 x 11/100). Since the monthly income of the appellant, after her retirement, is fixed notionally as Rs.4,000/-, applying the multiplier of 9 applicable to the age group of 56 to 60 years and the percentage of permanent disability as 11%, the compensation under the head permanent disability is re-fixed as Rs.47,520/- (4,000 x 12 x 9 x 11/100), resulting an additional compensation of **Rs.27,720/-** ( 47,520 - 19,800). 24. Towards disfiguration, the Tribunal awarded a **MACA.No.1395 OF 2009** **12** sum of Rs.6,000/-. Considering the nature of injuries sustained, the compensation awarded by the Tribunal under this head cannot also be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 25. Towards loss of amenities, the Tribunal awarded no compensation. In Ext.C1 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 11%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.C1 disability certificate, this Court deem it appropriate to grant her a sum of **Rs.15,000/-** under the head loss of amenities. 26. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.50,470/-** (Rupees Fifty thousand four hundred and seventy only) [1,000 + 1,750 + 5,000 + 27,720 + 15,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] respondent insurer shall satisfy the additional compensation granted in **MACA.No.1395 OF 2009** **13** 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** AV/26/11