P. M. Basheer @ Sofa Basheer v. Kamarudeen, Sunitha Manzil, Edava; The Divisional Manager, The New India Assurance Co. Ltd., Attingal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** ## **MACA.No.3148 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.582/2005 DATED 08-06-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/PETITIONER :** **P.M.BASHEER @ SOFA BASHEER, S/O.PEERU MUHAMMED, SEENA MANZIL, NEAR KOTTUMPURAM MOZQUE, THAZHUTHALA, ADICHANALLOOR.** ## **BY ADV. SRI.PRATHEESH.P** ## **RESPONDENTS/RESPONDENTS :** **1 KAMARUDEEN, SUNITHA MANZIL, EDAVA** - **2 VINODKUMAR, S/O.SASI, KANJANKUZHI VADAKKATHIL, VADAKKUMKARA KIZHAKKE, MAYYANAD (DELETED)** **THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 31/10/19 IN IA 1/19 IN MACA 3148/2009** **3 THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO.LTD., ATTINGAL** ## **BY SRI.RENIL ANTO KANDAMKULATHY, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3148 OF 2009** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.582 of 2005 on the file of the Motor Accidents Claims Tribunal, Kollam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident, which occurred on 09.01.2004, while he was standing on the side of a public road along with his scooter bearing registration No.KL-5/A-155. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL-16/A-3877 owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent rider of the offending vehicle remained absent and they were set ex-parte. 3. The 3[rd] respondent/insurer filed written statement **MACA.No.3148 OF 2009** **3** admitting the insurance coverage of the offending motorcycle; however, denying the negligence alleged against the 2[nd] respondent rider. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. It was also contended that the accident was due to the negligence on the part of the claimant who crossed the road carelessly and that, the 2[nd] respondent was not having valid driving licence at the time of accident. 4. Before the Tribunal, Exts.A1 to A21 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 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 offending motorcycle by the 2[nd] respondent rider. Since insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. However, as the 1[st] respondent owner failed to produce the valid driving licence of the 2[nd] respondent rider, the 3[rd] respondent insurer was permitted to recover the amount **MACA.No.3148 OF 2009** **4** from the 1[st] respondent owner. Under various heads, the Tribunal awarded a total compensation of Rs.1,07,800/-, and the insurer was directed to satisfy the award, with interest at the rate of 7.5% per annum from the date of petition till realisation. The insurer was directed to satisfy the award within three months from the date of award and was permitted to recover the award amount from the 1[st] respondent owner. 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. Despite service of notice, none appears for the 1[st] respondent/owner of the offending motorcycle. 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 **MACA.No.3148 OF 2009** **5** 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 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 **MACA.No.3148 OF 2009** **6** case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Tribunal under various heads reads thus;|Tribunal under various heads reads thus;| |---|---| |PART- I|| |(a) Loss of Earning for 4 months|Rs.8,000/-| |(b) Partial loss of earning|Nil| |(c) Transport to the Hospital|Rs.2,000/-| |(d) Extra nourishment|Rs.1,000/-| |(e) Damage to Clothing and Articles|Rs.500/-| |(f) Others – Bystander expenses|Rs.4,700/-| |(g) Medical expenses|Rs.18,796/-| |PART - II|| |(h) Compensation for Pain and<br>Suffering|Rs.15,000/-| |(i) Compensation for Continuing for<br>Permanent<br>disability<br>(Rs.2000x12x11x20/100)|Rs.52,800/-| |(j) Compensation for the loss of<br>amenities in life|Rs.5,000/-| |Total|Rs.1,07,796/-<br>rounded<br>as<br>Rs.1,07,800/-<br>(Rupees One lakh<br>Seven thousand and<br>eight hundred only)| ||| 12. The accident occurred on 09.01.2014. At the time of accident, the appellant was aged 51 years as evident from Ext.A21 extract of Admission Register. The appellant claimed **MACA.No.3148 OF 2009** **7** a monthly income of Rs.2,500/- as Commission Agent. No reliable materials were produced before the Tribunal to prove the monthly income. In Ext.A18 certificate dated nil, it is certified that the appellant is earning a monthly income of Rs.6,000/- as main carpenter. 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, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all **MACA.No.3148 OF 2009** **8** 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 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 **MACA.No.3148 OF 2009** **9** 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.2,500/-, as claimed in Column No.6 of the claim petition, for the purpose of assessing compensation under various heads. 16. Ext.A8 is the wound certificate issued from Holy Cross Hospital, Kottiyam, which shows abrasion over the (R) knee, bleeding from the mouth, lacerated wound over the inner aspect of the lower lip (2x1cm). In the said certificate, smell of alcohol was also noted. Exts.A10, A11 and A12 are the CT Scan reports. Ext.A13 is the discharge card issued from Medical College Hospital, Thiruvananthapuram. The appellant had undergone inpatient treatment for a total period of 18 days in different spells. 17. In Ext.A17 disability certificate issued by the **MACA.No.3148 OF 2009** **10** Senior Lecturer in neurology, Medical College Hospital, Thiruvananthapuram, the permanent partial disability of the appellant, on account of the injuries sustained in the accident, is assessed as 42% in neuro. Though Ext.A17 disability certificate was not proved by examining the doctor concerned, instead of discarding the same, the Tribunal took the percentage of permanent disability as 20%, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.8,000/-, at the rate of Rs.2,000/- per month for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is refixed notionally as Rs.2,500/-, the compensation under the head loss of earning is re-fixed as Rs.10,000/- (2,500 x 4), resulting an additional compensation of **Rs.2,000/-** (10,000-8,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment **MACA.No.3148 OF 2009** **11** for 18 days in different spells. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. 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 is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs.1,000/-** (3,000 – 2,000) under this head. 20. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 18 days. Towards bystander expenses, the Tribunal awarded a sum of Rs.4,700/-, which represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 18 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.1,800/- (18 x 100), resulting **MACA.No.3148 OF 2009** **12** an additional compensation of **Rs.800/-** (1,800 - 1,000) under this head. 22. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2004, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 23. Towards medical expenses, the Tribunal awarded a sum of Rs.18,796/-, covered by Exts.A19 and A20 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. 24. 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. **MACA.No.3148 OF 2009** **13** 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 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 **MACA.No.3148 OF 2009** ## **14** 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. 27. In the instant case, as on the date of accident, the appellant was aged 51 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 **11** applied by the Tribunal is correct and proper. 28. Towards compensation for permanent disability, the Tribunal awarded a sum of 52,800/- (2,000 x 12 x 11 x 20/100). Since the monthly income of the appellant is refixed notionally as Rs.2,500/-, applying the multiplier of 11 applicable to the age group of the appellant and the percentage of permanent disability as 20%, the compensation under the head permanent disability is refixed as 66,000/- (2,500 x 12 x 11 x 20/100), resulting an additional compensation of **Rs.13,200/-** (66,000 – 52,800) under this head. 29. Towards loss of amenities, the Tribunal awarded a **MACA.No.3148 OF 2009** **15** sum of Rs.5,000/-. Considering 20% permanent disability of the appellant, on account of the injuries sustained in the accident, the compensation awarded by the Tribunal under this head is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.15,000/-** (20,000 – 5,000) under this head. 30. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.32,250/-** (Rupees Thirty two thousand two hundred and fifty only) [2,000 + 1,000 + 800 + 250 + 13,200 + 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 3[rd] respondent is permitted to recover the said amount from the 1[st] respondent owner. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant as per the directives issued **MACA.No.3148 OF 2009** **16** 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/12/11