PAPPY v. Azhakarswami, Selvan.S, United India Insurance Co. Ltd.

## **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.1453 OF 2010** **AGAINST THE AWARD IN OP(MV) NO.1952/2006 DATED 17-12-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER IN OP(MV) NO.1952/2006:** **PAPPY, AGED 60 YEARS, W/O.LATE RAJAN, THUCHIRUPARAMBIL,EROOR DESOM,NADAMA VILLAGE.** **BY ADV. SRI.V.A.OMANAKUTTAN** ## **RESPONDENTS/RESPONDENTS IN OP(MV) NO.1952/2006:** ***1 AZHAKARSWAMI (DELETED) (RECALLED) S/O AYYOVOO, PANNAYANTHAL GRAMAM, ALLINAGARAM VILLAGE, SIVAGANGA DISTRICT,, NOW RESIDING AT C/O.ANTONY,APPAPARAMBIL HOUSE, NEAR PUTHENKULANGARA TEMPLE, EROOR.P.O. 682306** ***2 SELVAN.S (DELETED) (RECALLED) 619/30, AMBIKA NIVAS MUNDAMPARAMBIL,SHINE ROAD, VYTTILA.P.O, KOCHI. 682019** **(RESPONDENT 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 7/4/2015 IN IA NO 619/2015 IN MACA 1453/2010)** **(DELETION OF RESPONDENTS 1 AND 2 AS PER ORDER DATED 07.04.2015 IN IA NO.619/15 IN MACA 1453/2010 IS RECALLED VIDE ORDER DATED 26.05.2016 IN IA NO.2996/2015 IN MACA 1453/2010.)** **3 UNITED INDIA INSURANCE CO.LTD. THRIPUNITHURA PO, THRIPUNITHURA. PIN 682301** **R3 BY ADV. SMT.P.K.SANTHAMMA, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1453 of 2010 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1952 of 2006 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 her in a motor accident, which occurred on 10.07.2006, while she was walking along the side of a public road. At the place of accident, she was knocked down by a motorcycle bearing registration No.KL07/R-3707, ridden by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/- under various heads. 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 motorcycle involved in the accident; however, denying negligence alleged against its rider. The insurer contended that the accident occurred due to the MACA No.1453 of 2010 3 negligence on the part of 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 A9 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 motorcycle by its rider. 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.63,600/-, 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 3[rd] respondent insurer was directed to satisfy the award. On a finding that at the time of accident, the rider of the motorcycle was not having a valid and effective driving licence, the 3[rd] respondent insurer was given right of recovery of the award amount from respondents 1 and 2, after payment. MACA No.1453 of 2010 4 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. Pursuant to the order dated 26.05.2016, the appellant effected service of notice on respondents 1 and 2 through paper publication. 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 to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions MACA No.1453 of 2010 5 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; |Head|Amount<br>awarded| |---|---| |Transportation, hospitalization, attendant<br>expenses, extra nourishment & damage to<br>clothings|2,000| |Treatment expenses|31,600| MACA No.1453 of 2010 6 |Loss of earnings|6,000| |---|---| |For pain and sufferings|15,000| |For discomforts and reduction in amenities|6,000| |For future treatment|3,000| |Total|**63,600**| 12. The accident occurred on 10.07.2006. At the time of accident, the appellant was aged 60 years. She claimed a monthly income of Rs.4,000/- as pottery maker. The appellant has 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.2,000/-, 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 MACA No.1453 of 2010 7 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 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 MACA No.1453 of 2010 8 that a vegetable vendor is reasonably capable of earning 6,500/per month. 15. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2006, 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.A6 is the wound certificate and Ext.A7 is the discharge summary. As per medical records, in the accident, the appellant sustained fracture right tibia and oedema and deformity of right leg. Open reduction and internal fixation and nailing were done to stabilize fracture. She had undergone inpatient treatment for a period of 11 days. Ext.A9 series of medical bills are for a sum of Rs.31,589.80. 17. Ext.A8 is the disability certificate issued by the Medical Board at District Medical Office, Ernakulam, in which the permanent whole body disability of the appellant, on account of the injuries sustained in the accident, is assessed as 13% as per MACA No.1453 of 2010 9 McBride's scale. Before the Medical Board, the appellant complained difficulty in standing and walking and squatting. The clinical findings of the Medical Board in Ext.A8 disability certificate are Surgical scar anterior to right knee; 1cm shortening right leg; right knee movements from 180 degree to 90 decree flexion (5%); right ankle movement from 90 degree to 125 degree plantar flexion; (5%) inversion eversion adduction and abduction 10 degrees each (3%). The Tribunal did not award any compensation under the head permanent disability. Considering the nature of injuries sustained and the disabilities noted by the Medical Board, the permanent disability of 13% assessed by the Medical Board in Ext.A8 can be taken for the purpose of granting compensation under the head permanent disability. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.2,000/- for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, the compensation MACA No.1453 of 2010 10 under the head loss of earning is re-fixed as Rs.20,000/- (4,000 x 5), resulting an additional compensation of **Rs.14,000/-** (20,000 – 6,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 11 days. The accident is of the year 2006. Towards transportation, hospitalization, attendant expenses, extra nourishment and damage to clothing, the Tribunal awarded a consolidated amount of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the appellant is granted Rs.2,000/- towards transportation charges; Rs.2,200/- (200 x 11) towards bystander expenses; Rs.1,650/- (150 x 11) towards extra nourishment; and Rs.1,000/- towards damage to clothing, resulting an additional compensation of **Rs** . **4,850/-** [2,000 + 2,200 + 1,650 + 1,000) – 2,000]. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.31,600/-, covered by Ext.A9 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable MACA No.1453 of 2010 11 compensation, which requires no enhancement in this appeal. 21. 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 the head pain and suffering is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.5,000/-** (20,000 – 15,000). 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 five years, i.e., multiplier of **17** for 26 to 30 years, MACA No.1453 of 2010 12 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 60 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 proper multiplier to be applied is **9** . 25. Towards compensation for permanent disability, the Tribunal awarded no amount. Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, applying the multiplier of 9 applicable to the age group of the appellant and the MACA No.1453 of 2010 13 percentage of permanent disability as 13%, this Court deem it appropriate to grant a sum of **Rs.56,150/-** (4,000 x 12 x 9 x 13/100) under this head. 26. Towards loss of amenities the Tribunal awarded a sum of Rs.6,000/-. Considering the nature of injuries sustained and 13% permanent disability on account of those injuries, assessed by the Medical Board, the compensation awarded by the Tribunal under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.9,000/-** (15,000 – 6,000). 27. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.89,000/-** (Rupees eighty nine thousand only) (14,000 + 4,850 + 5,000 + 56,150 + 9,000) 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 insurer will be entitled to recover the MACA No.1453 of 2010 14 said amount by proceeding against the 1[st] respondent rider and the 2[nd] respondent owner. 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 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** jv **JUDGE**