Noorudeen Nikarthil (Fathima Manzil) v. Sulaiman K.S., P.K. Manmadhan, Branch Manager, National Insurance Co Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **MACA.No.1031 OF 2010** **AGAINST THE AWARD IN OPMV 1796/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT/PETITIONER :** **NOORUDEEN NIKARTHIL (FATHIMA MANZIL), VADUTHALA P.O. ALAPPUZHA** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENTS/RESPONDENTS :** **1 SULAIMAN K.S., S/O.SAITHU MUHAMMED, PUTHANPURACKAL HOUSE,THOPUMPADY P.O. 2 P.K.MANMADHAN, S/O.PARAMESWARAN PUTHALUMANAKARIYIL HOUSE,AYEVANA,, MOOVATTUPUZHA,ERNAKULAM. 3 BRANCH MANAGER, NATIONAL INSURANCE CO LTD, AROOR BRANCH, ALAPPUZHA. R1, R3 BY ADV. SRI.S.K.AJAY KUMAR R1 BY ADV. SRI.P.JAYASANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1031 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1796 of 2004 on the file of the Motor Accidents Claims Tribunal, Alappuzha, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained in a motor accident, which occurred on 19.06.2004, while he was riding a motorcycle bearing registration No.KL-7/P-9466. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-7/G9766 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent driver remained absent and he was set ex-parte. The 2[nd] respondent owner filed written statement contending that the accident occurred due to the rash and negligent riding of **MACA.No.1031 OF 2010** **3** the motorcycle by the appellant/claimant. Since the 1[st] respondent was having a valid driving licence, at the time of accident, and since the car is insured with the 3[rd] respondent, if it is found that the appellant/claimant is entitled for compensation, the same shall be recovered from the 3[rd] respondent insurer. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying the liability to pay compensation alleging violation of policy conditions, since the 1[st] respondent driver was not having valid badge to drive a transport vehicle. 4. Before the Tribunal, the claim petition was tried along with O.P(MV)No.1803 of 2004 arising out of the very same accident. Exts.A1 to A13 were marked on the side of the claimants. On the side of the respondents, Exts.B1 and B2 were marked. 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 **MACA.No.1031 OF 2010** ## **4** offending car by the 1[st] respondent driver. The Tribunal found that the 1[st] respondent was having a valid driving licence, as evident from Ext.B2. Since insurance coverage of the offending 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.1,08,000/(less the interim award of Rs.25,000/-) together with interest at the rate of 7.5% per annum from the date of petition, i.e., 31.12.2004 till realisation with a cost of Rs.1,100/- 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. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 is dispensed with. 8. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of **MACA.No.1031 OF 2010** **5** 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 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 **MACA.No.1031 OF 2010** **6** 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; |Heads|Amount awarded| |---|---| |Compensation for loss of earning|Rs.12,000/-| |Cost of medicine and treatment charges|Rs.35,000/-| |Transportation charges|Rs.2,000/-| |Bystander expenses|Rs.2,500/-| |Extra nourishment|Rs.800/-| |Damage to clothing|Rs.300/-| |Compensation for pain and suffering|Rs.20,000/-| |Compensation for permanent disability<br>and loss of earning power|Rs.32,400/-| |Compensation for loss of amenities|Rs.3,000/-| |**Total**|**Rs.1,08,000/-**| 12. The accident occurred on 19.06.2004. At the time of accident, the appellant was aged 42 years. The appellant **MACA.No.1031 OF 2010** **7** claimed a monthly income of Rs.6,000/- as Prawn vendor. He produced Ext.A11 certificate issued by one Abdul Salam, stating that the appellant is working with him as a supervisor for purchase and sale of Prawn and getting Rs.200/- per day. The alleged employer was not examined before the Tribunal to prove Ext.A11. 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.2,000/-, 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 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, **MACA.No.1031 OF 2010** **8** 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 income. Therefore, there was no reason for the Tribunal and **MACA.No.1031 OF 2010** **9** 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 2004, 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.4,500/-, for the purpose of assessing compensation under various heads. 16. In Ext.A6 wound certificate issued from Lakeshore Hospital, Ernakulam, it is stated that the appellant was discharged from that hospital, at his request. Ext.A6 is the discharge summary issued from Lisie Hospital, Ernakulam, in which it is stated that the petitioner was admitted there on 19.06.2004 and discharged on 15.07.2004. Ext.A7 treatment certificate would show that **MACA.No.1031 OF 2010** **10** the appellant was again admitted in Lisie Hospital on 11.10.2004 and discharged on 12.10.2004. Ext.A8 is another certificate issued from the very same hospital, which would show that he had undergone inpatient treatment from 21.08.2004 to 26.08.2004. Medical records would show that, in the accident the appellant sustained abrasion 15x8 cm over right thigh and knee ulterior aspect, lacerated wound 4x1 cm left tempo occipital area, small laceration over left temp parietal region, abrasion over riht elbow, tenderness over thoracolumbar region andmild abnormal, rigidity and swelling on left hand, left renal hypo perfussion, fracture inner table of left parietal bone, fracture transverse process of L1, L2 and L4 vertibra, compressed fracture on D11, fracture on 9[th] and 10[th] rib crack fracture on parietal region compression on 1.5 vertibra and B/L plural effusion lumate dislocation with carpal instability on wrist. The appellant had undergone inpatient treatment for 37 days. 17. In Ext.C1 disability certificate issued by the Medical Board at Medical College Hospital, Alappuzha, the **MACA.No.1031 OF 2010** **11** permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 9%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.2,000/- for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 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.4,500/-, the compensation under the head loss of earning is re-fixed as Rs.27,000/- (4,500 x 6), resulting an additional compensation of **Rs.15,000/-** (27,000 – 12,000). 19. Towards transportation charges, the Tribunal awarded a sum of Rs.2,000/-, which represents just and reasonable compensation and the same requires no enhancement in this appeal. **MACA.No.1031 OF 2010** **12** 20. Towards extra nourishment, the Tribunal awarded a sum of Rs.800/-. Towards bystander expenses, the Tribunal awarded a further sum of Rs.2,500/-. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 37 days. Considering the nature of injuries sustained by the appellant and the treatment he had undergone, compensation towards extra nourishment is refixed as Rs.3,700/- (100 x 37), resulting an additional compensation of **Rs.2,900/-** (3,700-800). The compensation under the head bystander expenses is re-fixed as Rs.5,550/- (150 x 37), resulting an additional compensation of **Rs.3,050/-** (5,550 - 2,500) 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.300/-. Considering the fact that the accident is of the year 2004, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.700/-** (1,000 - 300). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.35,000/- covered by Ext.A10 series of medical bills for a sum of Rs.34,967/-. In the absence of any further **MACA.No.1031 OF 2010** **13** 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.20,000/-. 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. 24. Towards loss of amenities the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries sustained and the permanent disability of 9% assessed in Ext.C1 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.7,000/-** (10,000 - 3,000). 25. 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.1031 OF 2010** **14** **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. 26. 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 **MACA.No.1031 OF 2010** **15** guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 27. In the instant case, as on the date of accident, the appellant was aged 42 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 to be applied is **14** . 28. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.32,400/-. Since the monthly income of the appellant is re-fixed notionally as Rs.4,500/-, the compensation under this head is re-fixed as Rs.68,040/- (4,500 x 12 x 14 x 9/100), resulting an additional compensation of **Rs.35,640/-** (68,040 - 32,400). 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.64,290/-** (Rupees Sixty four thousand two hundred and ninety only) [15,000 + 2,900 + 3,050 + 700 + 7,000 + 35,640] 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 **MACA.No.1031 OF 2010** **16** 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 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. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/1/11