Narayanan Namboodiri S/o Kesavan Namboodiri v. Vineeth, Hareesh and The Manager, Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** **MACA.No.3422 OF 2016** **AGAINST THE AWARD DATED 23.11.2015 IN OP(MV) NO.292/2011 OF ADDITIONAL DISTRICT COURT, MANJERI** ## **APPELLANT/PETITIONER:** **NARAYANAN NAMBOODIRI S/O KESAVAN NAMBOODIRI, KUNNATH KANDAMANKALATH ILLAM, P.O. CHULOOR, KOZHIKKODE TALUK, CALICUT DISTRICT - 673 601.** ## **BY ADV. SRI.K.M.MOHAMED ABDURAHIMAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**VINEETH**| |---|---| ||**S/O NARAYANAN NAMBOODIRI,**| ||**KUNNATH KANDAMANKALATH ILLAM, P.O. CHULOOR, CALICUT**| ||**DISTRICT - 673 601 (DRIVER).**| |**2**|**HAREESH**| ||**11/112, THARAPPAYIL, PERUMANNA**| ||**P.O PERUVAYAL, CALICUT 673 008 (OWNER).**| |**3**|**THE MANAGER**| ||**ORIENTAL INSURANCE CO. LTD, PRAMOD BUILDING, CHERUTTY**| ||**ROAD, KOZHIKKODE – 673 001**| ||**(INSURER).**| **R3 BY ADV. SMT.K.S.SHANTHI, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3422 OF 2016** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.292 of 2011 on the file of the Additional Motor Accidents Claims Tribunal, Manjeri, 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 20.09.2010, while he was travelling as pillion rider on a motorcycle bearing registration No.KL-11/AF-9535, ridden by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the motorcycle capsized. The appellant/claimant fell down and 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.1,62,500/under various heads. 2. Before the Tribunal, thought the 1[st] respondent entered appearance, no written statement was filed. The 2[nd] respondent remained absent and he was set ex-parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the motorcycle in question; **MACA.No.3422 OF 2016** 3 however, denying negligence alleged against the 1[st] respondent rider. The insurer raised a contention that pillion rider is not covered by the policy of insurance. 4. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the motorcycle was marked as Ext.B1. The document marked as Ext.X1 is the disability certificate in which the percentage of permanent partial disability of the appellant, on account of the injuries sustained in the accident is certified as 3%. 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 motorcycle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.62,602/-, together with interest at the rate of 9% per annum from the date of petition till date of deposit, with proportionate cost and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded **MACA.No.3422 OF 2016** 4 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. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 was dispensed with, by the order of this Court dated 07.11.2019. 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 '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 **MACA.No.3422 OF 2016** 5 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; |Sl.<br>No.|Head of Claim|Amount<br>claimed<br>(in Rs.)|Amount<br>awarded<br>(in Rs.)|Basic-vital details in<br>a nut shell| |---|---|---|---|---| |a|Loss of earning|27000|15000|5000 x 3| |b|Transportation to hospital|5000|2500|| **MACA.No.3422 OF 2016** 6 |c|Extra nourishment|5000|1000|| |---|---|---|---|---| |d|Damage to clothing and articles|500|500|| |e|Medical expenses|20000|3202|Ext.A6 series| ||Bystanders expenses|5000|2000|250 x 8| |f|Compensation for paid and<br>suffering|25000|15000|| |g|Compensation<br>for<br>the<br>continuing<br>or<br>permanent<br>disability, if any|25000|23400|| |h|Compensation for the loss of<br>earning power|50000|Nil|| ||Total|**162500**|**62602**|| 12. The accident occurred on 20.9.2010. At the time of accident, the appellant was aged 50 years. The appellant claimed a monthly income of Rs.9,000/- as Contractor. No 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.5,000/-, 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 (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 **MACA.No.3422 OF 2016** 7 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 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 **MACA.No.3422 OF 2016** 8 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 2010, 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.7,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the accident register cum wound certificate. Ext.A4 is the reference card and Ext.A5 is the referral OP card. As per medical records, the appellant sustained fracture of 2, 3, 4 ribs left, fracture of left clavicle left TCD insertion done. He sustained multiple abrasions left shoulder, left ankle, let dorsum foot toes. Ext.A6 series are the medical bills for a sum of Rs.3,202/-. The appellant had undergone inpatient **MACA.No.3422 OF 2016** 9 treatment for a period of eight days. 17. In Ext.X1 disability certificate, the permanent partial disability of the appellant, on account of the injuries sustained in the accident, was assessed as 3%. The Tribunal accepted the percentage of permanent disability assessed in Ext.X1, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.15,000/-, at the rate of Rs.5,000/- per month for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from Ext.A2 and other medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.7,500/-, the compensation under the head loss of earning is re-fixed as Rs.45,000/- (7,500 x 6), resulting an additional compensation of **Rs.30,000/-** (45,000 - 15,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 8 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,500/-. Considering the nature of injuries sustained and the **MACA.No.3422 OF 2016** 10 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. 20. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2010 and the appellant had undergone inpatient treatment for 8 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 extra nourishment is re-fixed as Rs.1,200/- (150 x 8), resulting an additional compensation of **Rs.200/-** (1,200 – 1,000). The Tribunal awarded Rs.2,000/(250 x 8) towards bystander expenses, which represents just and reasonable compensation under that head. 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2010, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). 22. Towards medical expenses, the Tribunal awarded a sum **MACA.No.3422 OF 2016** 11 of Rs.3,202/-, covered by Ext.A6 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. 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.20,000/-, resulting an additional compensation of **Rs. 5,000/-** (20,000 - 15,000). 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** **MACA.No.3422 OF 2016** 12 **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. 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 50 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 **13** applied by the Tribunal is correct and proper. **MACA.No.3422 OF 2016** 13 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.23,400/- (5,000 x 12 x 13 x 3/100). Since the monthly income of the appellant is re-fixed notionally as Rs.7,500/-, applying the multiple of 13 applicable to the age group of the appellant and the percentage of permanent disability as 3%, the compensation under the head permanent disability is re-fixed as Rs.35,100/- (7,500 x 12 x 13 x 3/100), resulting an additional compensation of **Rs.11,700/-** (35,100 – 23,400). 28. Towards loss of amenities no compensation has been awarded by the Tribunal. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.X1 disability certificate, this Court deem it appropriate to grant an amount of **Rs.5,000/-** towards loss of amenities. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.52,400/-** (Rupees Fifty Two Thousand and Four Hundred only) [30,000 + 200 + 500 + 5,000 + 11,700 + 5,000] 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 **MACA.No.3422 OF 2016** 14 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. Payment of additional compensation 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** JV