NARAYANI AMMA v. P. N. ASHRAF S/O KOYAKUTTY and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941** ## **MACA.No.485 OF 2014** **AGAINST THE AWARD IN OPMV 398/2011 DATED 31-05-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER** **NARAYANI AMMA** **W/O. RAMAN NAIR, AGED 63 YEARS, RESIDING AT 392, PEROOLI HOUSE, PERUVAYAL P.O., KOZHIKODE, NOW RESIDING AT PEROOLI HOUSE P.O CHERUKULATHOOR, MEDICAL COLLEGE VIA, KOZHIKODE.** **BY ADV. SRI.A.V.M.SALAHUDDEEN** ## **RESPONDENTS/RESPONDENTS:** **1 P.N.ASHRAF S/O. KOYAKUTTY, RESIDING AT PADINHARE NADUVATH HOUSE, VELLIPARAMBA P.O., MEDICAL COLLEGE VIA, KOZHIKODE - 673 008.** **2 FASALU RAHMAN K. S/O. MUHAMMED K., AGED 22 YEARS, RESIDING AT KALAMBALATH HOUSE, P.O. CHEROOPPA, MAVOOR AMSOM DESOM, KOZHIKODE - 673 661.** **3 THE NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, CALICUT - 673 001** ## **R3 BY ADV. SRI.ABHIJETT LESSLI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA.No.485 OF 2014 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.398 of 2011 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 her in a motor accident, which occurred on 12.09.2010, while she was attempting to get down from a bus bearing registration No.KL-11/Y-2757 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. The 2[nd] respondent driver suddenly took the bus and the appellant fell down, causing serious injuries. Alleging that the accident occurred due to rash and negligent driving of bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs. 6,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver remained absent and they were set ex parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the bus involved in the accident; 3 MACA.No.485 OF 2014 however, denying the negligence alleged against the 2[nd] respondent driver. 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 A6 series were marked on the side of the appellant/claimant. The document marked as Ext.C1 is the disability certificate issued by the Medical Board assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident. Ext.X1 is the medical record. 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 bus 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.3,07,814 /- together with interest at the rate of 8% 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 4 MACA.No.485 OF 2014 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 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** 5 MACA.No.485 OF 2014 **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; ||The<br>compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning|12,000/-|20,000/-|2500x8 months| |2|Transport to hospital|5,000/-|3,000/-|| |3|Damage to clothing and<br>articles|1,000/-|500/-|| |4|Extra nourishment|4,000/-|3,000/-|| |5|Bystander's expenses|Nil|7,800/-|200X39 days| |6|Treatment expenses|2,50,000/-|71,014/-|Ext.A6 series| |7|Pain and suffering|40,000/-|30,000/-|| |8|Loss of future earning<br>power|2,20,000/-|1,57,500/-|2500X12X7X75<br>/100| 6 MACA.No.485 OF 2014 9 Loss of amenities of life 25,000/15,000/Total 3,07,814/- 12. The accident occurred on 12.09.2010. At the time of accident, the appellant was aged 63 years. The appellant claimed a monthly income of Rs.4,000/- as an agriculture labourer. The appellant has also not chosen to mount the box to prove her monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,500/-, 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 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 7 MACA.No.485 OF 2014 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 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. 8 MACA.No.485 OF 2014 15. 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, the monthly income of Rs.4,000/claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound certificate and Ext.A4 is the discharge summary. As per medical records, in the accident, the appellant sustained degloving injury to right thigh and leg, fracture both bones right leg upper 1/3[rd] , open type II, fracture distal 1/3[rd] tibia, fibula, hoffa's fracture right distal femur open type II , common peroneal nerve paisy right leg. She had undergone inpatient treatment for a period of 39 days. Ext.A6 series of medical bills are for a sum of Rs. 71,014 /-. 17. The document marked as Ext.C1 is the disability certificate issued by the Medical Board at the Medical College Hospital, Kozhikode assessing the permanent disability of the appellant, on account of the injuries sustained in the accident, as 91%. The Tribunal took the percentage of permanent disability as 9 MACA.No.485 OF 2014 75%, since the disability assessed by the Medical Board is in respect of that particular limb and not whole body disability. 18. In **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343]** , the Apex Court laid down the principles governing assessment of future loss of earning due to permanent disability. The Apex Court held that where the claimant suffers a permanent disability as a result of the injuries, the assessment of compensation under the head loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What requires to be assessed by the Tribunal is the effect of permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependancy). 19. In **Raj Kumar's case** , the Apex Court held that, if the Tribunal concludes that there is permanent disability as a result of the injuries, then it will proceed to ascertain its extent. After the 10 MACA.No.485 OF 2014 Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood; or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on; or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. When compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or 11 MACA.No.485 OF 2014 loss of expectation of life may disappear or a token or nominal amount may have to be awarded under that head. 20. The appellant appeared before the Tribunal and the Tribunal noticed that she is unable to move without the help of others. The nature of disability noted in Ext.C1 includes total ankylosis of knee. Considering the nature of disabilities noted in Ext.C1 and also the fact that she is unable to move without the help of others, this Court deem it appropriate to take the percentage of disability as 90% for the purpose of awarding compensation under the heads permanent disability and loss of amenities. 21. Towards loss of earning, the Tribunal awarded a sum of Rs.20,000/-, at the rate of Rs.2,500/- for a period of 8 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 8 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.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.32,000/- (4,000 x 8), resulting an additional compensation of **Rs.12,000/-** . (32,000 - 20,000) 12 MACA.No.485 OF 2014 22. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 39 days. The accident is of the year 2010. 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. 4,000/-, resulting an additional compensation of **Rs. 1,000/-** (4,000 - 3,000). 23. Towards bystander expenses the Tribunal awarded a sum of Rs. 7800/- (200 x 39). Towards extra nourishment, the Tribunal awarded a further sum of Rs.3,000/-. The accident is of the year 2010 and the appellant had undergone inpatient treatment for 39 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 just and reasonable, which requires no enhancement in this appeal. The compensation under the head extra nourishment is re-fixed as Rs. 5,850/- (150 x 39), resulting an additional compensation of **Rs. 2,850/-** (5,850 - 3,000). 24. Towards damage to clothing and articles, the Tribunal 13 MACA.No.485 OF 2014 awarded a sum of Rs.5,00/-. 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/-** . 25. Towards medical expenses, the Tribunal awarded a sum of Rs.71,014/-, 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. 26. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. 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. 27. 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** MACA.No.485 OF 2014 **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. 28. 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. 29. In the instant case, as on the date of accident, the 15 MACA.No.485 OF 2014 appellant was aged 63 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 **7** applied by the Tribunal is correct and proper. 30. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,57,500/- (2,500 x 12 x 7 x 75/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, applying the multiplier of 7 applicable to the age group of the appellant and the percentage of permanent disability as 90%, the compensation under the head permanent disability is re-fixed as Rs.3,02,400/- (4,000 x 12 x 7 x 90/100), resulting an additional compensation of **Rs.1,44,900/-** ( 3,02,400 - 1,57,500). 31. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. In Ext.C1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 91%. The Tribunal took the percentage of permanent disability as 80%, which has already been re-fixed in this appeal as 90%. Considering the nature of injuries and the permanent disability on account of those injuries, MACA.No.485 OF 2014 the compensation awarded by the Tribunal under this head is refixed as Rs. 90,000./-, resulting an additional compensation of **Rs. 75,000/-** (90,000 - 15,000). 32. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs. 2,36,250/-** (Rupees two lakh thirty six thousand two hundred and fifty only) [12,000 + 1,000 + 2,850 + 500 + 1,44,900 +75,000] 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. 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 her 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 17 MACA.No.485 OF 2014 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 of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN, JUDGE** hmh