N.C. George v. Branch Manager, National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941** ## **MACA.No.673 OF 2011** **AGAINST THE AWARD IN OP(MV). No. 66/2006 DATED 16-11-2009 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** **APPELLANT/S:** **N.C.GEORGE, AGED 44 YEARS, S/O. CHERIYAN, NJARAKULATHIL HOUSE, CHENNALODE POST, CHENNALODE.** **BY ADV. SMT.CELINE JOSEPH** **RESPONDENT/S:** **THE BRANCH MANAGER,NATIONAL INSURANCE CO.LTD NOOR COMPLEX, NEAR ARAYIDATHUPALAM, MAVOOR ROAD, CALICUT, POLICY NO.511300/31/04/, 6317887.** **R1 BY ADV. SRI.A.A.MOHAMMED NAZIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 673 of 2011 ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.66 of 2006 on the file of the Motor Accidents Claims Tribunal, Kalpetta, 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 17.12.2005, while he was riding a motorcycle bearing registration No.KL-5/J-3115. At the place of accident, the motorcycle was hit by a bus bearing registration No.KL-12-B/7720, 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 bus by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,00,000/- under various heads, which was later amended to Rs.5,00,000/-. 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 bus involved in the -3- MACA. No. 673 of 2011 accident; however, denying the negligence alleged against its driver. The insurer contended that the accident occurred due to rash and negligent riding of the 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 A11 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. 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 offending 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.2,16,719/-, together with interest at the rate of 7.5% per annum from the date of -4- MACA. No. 673 of 2011 petition till payment, with proportionate cost, 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 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 -5- MACA. No. 673 of 2011 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; Loss of earning for 130 days 60,909 -6- MACA. No. 673 of 2011 |Transport to hospital|4,000| |---|---| |Extra nourishment|500| |Damage to clothing|500| |Bystander's expenses|3,250| |Medical Expenses|98,000| |Compensation for pain and suffering|15,000| |Compensation for permanent disability|34,560| |------------------|| |Total|2,16,719/-| |===========|| 12. The accident occurred on 17.12.2015. At the time of accident, the appellant was aged 40 years. The appellant was working as Health Supervisor in Community Health Centre, drawing a monthly salary of Rs.14,050/- as evidenced by Ext.A7 salary certificate. The Tribunal accepted the monthly income of the appellant, for the purpose of assessing compensation under various heads. 13. The document marked as Ext.A5 is the wound certificate and Ext.A6 is the discharge summary. As per medical records, in the accident, the appellant sustained fracture right femur, fracture both bones right leg, fracture right ulna, fracture right petella, fracture 3[rd] and 4[th] matatarsal bones right and extension tenden injury right II and III toes. He had undergone inpatient treatment for a -7- MACA. No. 673 of 2011 period of 9 days. As per Ext.A7 salary certificate, the total loss of earning on account of the earned leave and commuted leave availed by the appellant comes to Rs.60,909/-. The Tribunal awarded the said amount towards loss of earning. Ext.A10 series of medical bills are for a sum of Rs.97,490/-. 14. The document marked as Ext.C1 is the disability certificate issued by the Medical Board, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 12%. The Tribunal took the percentage of disability as 12%, for the purpose of assessing compensation under the head permanent disability. 15. Towards loss of earning, the Tribunal awarded a sum of Rs.60,909/-, covered by Ext.A7 salary certificate for a period of 130 days. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 16. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 9 days. The accident is of the year 2005. Towards -8- MACA. No. 673 of 2011 transportation to hospital, the Tribunal awarded a sum of Rs.4,000/-. 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. 3,250/-. Towards extra nourishment, the Tribunal awarded a further 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 awarded by the Tribunal under the head bystander's expenses represents just and reasonable compensation, which requires no enhancement in this appeal. The compensation under the head extra nourishment is refixed as Rs.900/- (100 x 9), resulting an additional compensation of **Rs.400/-** (900 - 500). 18. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2005, the compensation under this head is re-fixed -9- MACA. No. 673 of 2011 as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 – 500). 19. Towards medical expenses, the Tribunal awarded a sum of Rs.98,000/-. Ext.A10 series of medical bills are for a total sum of Rs.97,490/-. 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.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 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 Corporation v. Susamma Thomas [(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra** -10- MACA. No. 673 of 2011 **[(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 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. -11- MACA. No. 673 of 2011 23. In the instant case, as on the date of accident, the appellant was aged 40 years. Since the age of retirement is 56 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 8 applied by the Tribunal is not correct and the proper multiplier to be applied is **9** . 24. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.34,560/- (3,000 x 12 x 8 x 12/100). The Tribunal fixed the notional monthly income of the appellant after retirement as Rs.3,000/-, applied the multiplier of 8 and the percentage of permanent disability as 12%. At the time of accident the appellant was drawing a monthly income of Rs.14,050/-. Therefore, the notional monthly income of the appellant after retirement, for the purpose of assessing dependency compensation, can be taken as Rs.6,000/-. Applying the multiplier of 9 applicable to the age group of 56 to 60 years, and the percentage of disability as 12%, the compensation under the head permanent disability is re-fixed as Rs.77,760/- (6,000 x 12 x 9 x 12/100), resulting an additional compensation of **Rs.43,200/-** (77,760 -12- MACA. No. 673 of 2011 – 34,560). 25. Towards loss of amenities no amount has been awarded by the Tribunal. In Ext.C1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 12%. Considering the nature of injuries sustained and 12% permanent disability assessed in Ext.C1 disability certificate, this Court deem it appropriate to grant an amount of **Rs.15,000/-** as compensation towards loss of amenities. 26. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.58,850/-** (Rupees fifty eight thousand eight hundred and fifty only) [400 + 250 + 43,200 + 15,000] 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 -13- MACA. No. 673 of 2011 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 before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of certified copy of this judgment. This appeal is disposed of as above. No order as to costs. All pending interlocutory applications in this appeal are closed. **Sd/ANIL K.NARENDRAN JUDGE** das