P. K. Joy v. M. Balan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941** ## **MACA.No.2421 OF 2009** **AGAINST THE AWARD IN OPMV 2722/2000 DATED 03-05-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT:** **P.K.JOY, S/O.KURUVILA, PACHIRATHURUTHUMMEL HOUSE, NJARALLOOR KARA, KIZHAKKAMBALAM P.O., NOW RESIDING AT PAYYAPPILLY HOUSE, KALAMASSERY.** **BY ADV. SRI.T.R.SUGUNAN RESPONDENTS: 1 M.BALAN, S/O.M.CHATHU, MAMMALLY. 2 THE NATIONAL INSURANCE CO.LTD, M.G.ROAD, ERNAKULAM. 3 MRS. SADHINI JACOB, W/O.JACOB, MEKKAMKUNNEL HOUSE, VILANGU PO, EDATHALA. 4 THE NATIONAL INSURANCE CO.LTD M.G.ROAD, ERNAKULAM. 5 SURESH BABU, S/O.KANARAN, HOUSE NO.33/2000, MADAKUMKUNIL. BY ADV. SRI.K.R.AVINASH (KUNNATH) BY ADV. SRI.S.K.AJAY KUMAR BY ADV. SRI.K.R.AVINASH KUNNATH BY ADV. SRI.U.P.BALAKRISHNAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2421 OF 2009 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2722 of 2000 on the file of the Motor Accidents Claims Tribunal, Ernakulam, 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 31.01.2000, while he was driving a mini lorry bearing registration No.KL-7/9214. At the place of accident, the said mini lorry was hit by another mini lorry bearing registration No.KL-11/F-8956 owned by the 1[st] respondent, driven by the 5[th] respondent and insured with the 2[nd] respondent. The 3[rd] respondent is the owner of the mini lorry driven by the appellant/claimant and the 4[th] respondent is its insurer. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of mini lorry by the 5[th] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.9,00,000/-, under various heads. 2. Before the Tribunal, respondents 1, 3 and 5 remained absent and they were set ex-parte. The 4[th] 3 MACA No.2421 OF 2009 respondent insurer filed written statement admitting insurance coverage of the mini lorry driven by the appellant; however, denying liability for payment of compensation on the ground that, the accident occurred due to rash and negligent driving of the mini lorry by the 5[th] respondent. 3. Before the Tribunal, Exts.A1 to A20 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 4. 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 mini lorry by the 5[th] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.2,83,000/-, together with interest at the rate of 7.5% per annum from the date of petition till date of deposit, with proportionate cost and the 2[nd] respondent insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation 4 MACA No.2421 OF 2009 awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant, the learned counsel for the 1[st] respondent and also the learned Standing Counsel for the 2[nd] and 4[th] respondent insurers. Since insurance coverage of the offending vehicle is admitted by the 2[nd] respondent insurer, service of notice on the 5[th] respondent was dispensed with, by the order of this Court dated 04.11.2019. 7. 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. 8. 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 5 MACA No.2421 OF 2009 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. 9. 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. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; 6 MACA No.2421 OF 2009 ||The compensation claimed under various heads|Amount awarded| |---|---|---| |1|Transportation|Rs.10,000/-| |2|Hospitalisation, attendant expenses, extra<br>nourishment & damage to clothings|Rs.30,000/-| |3|Treatment expenses|Rs.1,36,000/-| |4|Loss of earning (for 52 weeks)|Rs.24,000/-| |5|Pain and suffering|Rs.20,000/-| |6|For discomforts & inconveniences|Rs.15,000/-| |7|And diminution inpleasure<br>occupational disability|Rs.48,000/-| ||Total|Rs.2,83,000/-| 11. The accident occurred on 30.01.2000. At the time of accident, the appellant was aged 39 years. The appellant claimed a monthly income of Rs.3,000/- as driver. 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.2,000/-, for the purpose of assessing compensation under various heads. 12. 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 7 MACA No.2421 OF 2009 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 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. 13. 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 8 MACA No.2421 OF 2009 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. 14. At the time of accident, the appellant was driving a mini lorry. He was not charge sheeted for driving the said vehicle without a valid driving licence and badge. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2000, 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.2,750/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A2 is the wound 9 MACA No.2421 OF 2009 certificate and Exts.A9, A10 and A10(a) are discharge summaries. Ext.A11 is the treatment certificate. Ext.A16 is another discharge summary and Ext.A17 is a treatment certificate. As per medical records, the appellant sustained open fracture on both bones (L) leg lower 3[rd] fracture of second, third and forth metatarsel and fracture of neck of P2. As the wounds were infected, the appellant had undergone treatment for debridment and ender nailing. He had undergone inpatient treatment for a total period of 309 days in different spells. Ext.A12 series of medical bills are for a sum of Rs.1,35,438/-and Ext.A19 series of medical bills are for a further sum of Rs.414.98/-. Ext.A13 is the series of taxi bills for a sum of Rs.25,100/-. The Tribunal noticed that some of the bills have no nexus with hospital visits. 16. Ext.A20 is the disability certificate issued by the Medical Board at the General Hospital, Ernakulam, in which, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 25%. The disabilities noted in Ext.A20 are aukylosis (L) ankle joint; left limb shortening of 2 lateral bowing (L) leg with 10 MACA No.2421 OF 2009 later deviation of (L) ankle and foot; swelling (L) leg; imbalance during walking; and difficulty to climb steps and to squat. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.24,000/-, at the rate of Rs.2,000/- for a period of 12 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 12 months fixed by the Tribunal for granting loss of earning is re-fixed as 16 months. Since the monthly income of the appellant is re-fixed notionally as Rs.2,750/-, the compensation under the head loss of earning is re-fixed as Rs.44,000/- (2,750 x 16), resulting an additional compensation of **Rs.20,000/-** (44,000 - 24,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 309 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as 11 MACA No.2421 OF 2009 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. 19. Towards attendant expenses, extra nourishment and damage to clothing, the Tribunal awarded a sum of Rs.30,000/-. The accident is of the year 2000 and the appellant had undergone inpatient treatment for 309 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the heads bystander expenses is re-fixed as Rs.46,350/- (150 x 309); Rs.30,900/(100 x 309) towards extra nourishment; and Rs.1,500 towards damage to clothing, resulting an additional compensation of **Rs.48,750/-** [(46,350 + 30,900 + 1,500) - 30,000]. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.1,36,000/-, covered by Exts.A12 and A19 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. 12 MACA No.2421 OF 2009 21. 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 the head pain and suffering is re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.5,000/-** (25,000 - 20,000) under this head. 22. 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 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 13 MACA No.2421 OF 2009 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. ## 23. 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. 24. In the instant case, as on the date of accident, the appellant was aged 39 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 **15** applied by the Tribunal is correct and proper. 25. Towards compensation for occupational disability (permanent disability), the Tribunal awarded a sum of 14 MACA No.2421 OF 2009 Rs.48,000/-. Since the monthly income of the appellant is refixed notionally as Rs.2,750/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of permanent disability as 25%, the compensation under this head is re-fixed as Rs.1,23,750/- (2,750 x 12 x 15 x 25/100), resulting an additional compensation of **Rs.75,750/-** (1,23,750 - 48,000). 26. Towards discomforts and inconveniences (loss of amenities), the Tribunal awarded Rs.15,000/-. In Ext.A20 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 25%. Considering the nature of injuries sustained and the permanent disability that has been assessed in Ext.A20 disability certificate, the compensation under this head is re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.10,000/-** (25,000 - 10,000). 27. The learned Standing Counsel for the 2[nd] respondent insurer would point out that, though notice was ordered in C.M.Application No.2858 of 2009 on 03.11.2009, the appellant did not pay process. Hence, notice could not be sent to the 15 MACA No.2421 OF 2009 respondents. The matter was listed before Registrar (Judicial) on 02.09.2010 and there was no representation for the appellant. Thereafter, the process was received only on 27.03.2018 and notice was sent to the respondents. Considering the delay on the part of the appellant in taking out notice to the respondents, the additional compensation awarded will carry interest only at the rate of 7%, instead of 8%. 28. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.1,59,500/-** (Rupees One Lakh Fifty Nine Thousand Five Hundred only) [20,000 + 48,750 + 5,000 + 75,750 + 10,000] in this appeal, which will carry interest at the rate of **7%** per annum from the date of petition till realisation. The 2[nd] 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 the amount to the appellant/claimant shall be 16 MACA No.2421 OF 2009 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** **yd**