Parvathi Devi v. HDFC ERGO General Insurance Co. Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941** ## **MACA.No.73 OF 2017** **AGAINST THE AWARD IN OP(MV)NO.1497/2013 DATED 31-07-2015 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER :** **PARVATHI DEVI W/O. RAMACHANDRAN, DEVI SADAN HOUSE, CHATHAMANGALAM, KOZHIKODE-673601** ## **BY ADV. SRI.JACOB ABRAHAM** ## **RESPONDENT/3RD RESPONDENT :** **HDFC ERGO GENERAL INSURANCE CO. LTD 2ND FLOOR, CHICAGO PLAZA, NEAR KSRTC BUS STAND,ERNAKULAM PIN-682011** **R1 BY ADV. SRI.GEORGE CHERIAN (SR.) R1 BY ADV. SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.73 OF 2017** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1497 of 2013 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, 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 19.05.2013, while she was travelling in a car bearing registration No.KL-14/H-9586 owned by the 1[st] respondent and driven by the 2[nd] respondent before the Tribunal and insured with the respondent herein. At the place of accident, the said car hit against a shop, as a result of which, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/under various heads. 2. Before the Tribunal, the 1[st] respondent owner and 2[nd] respondent driver of the vehicle remained absent and they were set ex-parte. The 3[rd] respondent insurer filed a written statement admitting insurance coverage of the **MACA.No.73 OF 2017** ## **3** vehicle; however denying negligence alleged against its driver. It was contended that the compensation claimed is exorbitant and exaggerated. 3. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary evidence. Ext.C1 is the disability certificate, in which the permanent disability of the appellant on account of the injuries sustained in the accident is assessed as 62%. The Tribunal has accepted the percentage of disability certified in Ext.C1, for the purpose of awarding compensation under various heads. 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 vehicle by its driver. Since insurance coverage of the said vehicle was not in dispute, the insurer held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.5,31,000/- together with interest at the rate of 9% per annum from the date of **MACA.No.73 OF 2017** **4** petition, till the date of deposit, with proportionate cost and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the respondent insurer. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of 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 golden scales. But at the same time it has be to be borne in mind that the compensation is not expected **MACA.No.73 OF 2017** **5** 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; ||The compensation<br>claimed under|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| **MACA.No.73 OF 2017** **6** ||different heads|||| |---|---|---|---|---| |1|Loss of earnings<br>due to the accident|40000/-|45,000/-|5000x9 months| |2|Transport<br>to<br>hospital|10000/-|2,000/-|| |3|Hospitalizations|Nil|24,800/-|800x31| |4|Medical expenses|4,00,000/-|3,300/-|| |5|Future treatment|Nil|1,100/-|| |6|Pain and sufferings|5,00,000/-|1,00,000/-|| |7|Loss of amenities|2,00,000/-|20,000/-|| |8|Loss of income due<br>to disability|10,00,000/-|3,34,800/-|5000x12x9x62/100| ||**Total**||**5,31,000/-**|| ## 11. The accident occurred on 19.05.2013. At the time of accident, the appellant was aged 60 years. She claimed a monthly income of Rs.10,000/-, as a Tailor. However, no materials were placed on record to prove her monthly income. The appellant has also not chosen to mount the box. In such circumstances, the Tribunal fixed the monthly income of the appellant notionally as Rs.5,000/-, 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 the year 2004, at the age of 35 years, **MACA.No.73 OF 2017** **7** 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 **MACA.No.73 OF 2017** **8** 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 that a vegetable vendor is reasonably capable of earning 6,500/- per month. 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2013, 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.9,000/-, for the purpose of assessing compensation under different heads. 15. The document marked as Ext.A2 is the wound certificate and Ext.A3 is the discharge summary. **MACA.No.73 OF 2017** **9** Immediately after the accident, the appellant was taken to Surprise Hospital, Changaramkulam. Thereafter, she was referred to MIMS Hosptial, Kozhikode, where she had undergone inpatient treatment till 19.06.2013. As per Ext.A3 discharge summary, the injuries sustained by the appellant, as reflected in final diagnosis, are central fracture dislocation left hip, type 1 compound Supracondylar fracture right femur and midshaft fracture right clavicle. She had undergone inpatient treatment for a period of 31 days. In Ext.C1 disability certificate, the percentage of permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 62%. The Tribunal accepted the said percentage of disability for the purpose of awarding compensation under various heads. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.45,000/-, at the rate of Rs.5,000/- per month for a period of 9 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, the period of 9 months fixed by the Tribunal for granting compensation under the head loss of earning cannot be said **MACA.No.73 OF 2017** **10** to be on the lower side, warranting an interference in this appeal. Since the monthly income of the appellant is refixed notionally as Rs.9,000/-, the compensation under the head loss of earnings is re-fixed notionally as Rs.81,000/(9,000 x 9), resulting an additional compensation of **Rs.36,000/-** (81,000 – 45,000). 17. The accident is of the year 2013. The appellant had undergone inpatient treatment for a period of 31 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/- and towards hospitalisation, a further sum of Rs.24,800/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, compensation awarded by the Tribunal under those heads represents just and reasonable compensation, which requires no interference in this appeal. 18. Towards medical expenses, the Tribunal awarded a sum of Rs.3,300/-. Exts.A5 and A6 are the medical bills, in which Ext.A5 bill is for an amount of Rs.3,41,148/-. The insurer objected Ext.A5 bill, since the appellant did not produce the original. In such circumstances, the Tribunal **MACA.No.73 OF 2017** **11** accepted only Ext.A6 bill for a sum of Rs.3,255/-. The reasoning of the Tribunal in this regard warrants no interference in this appeal. 19. As compensation towards pain and sufferings, Tribunal awarded a sum of Rs.1,00,000/- and a further sum of Rs.20,000/- towards loss of amenities. Considering the nature of injuries and the permanent disability of 62% assessed in Ext.C1 disability certificate, the compensation under the head loss of amenities is re-fixed at Rs.70,000/-, resulting an additional compensation of **Rs.50,000/-** (70,000 – 20,000). Considering the nature of injuries sustained and the treatment the appellant had undergone, as discernible from Ext.A2 wound certificate and Ext.A3 discharge summary, the compensation of Rs.1,00,000/awarded by the Tribunal under the head pain and sufferings, which is on the higher side, is scaled down to Rs.70,000/-, resulting an **excess payment** of **Rs.30,000/-** (1,00,000 – 70,000), which has to be deducted from the additional compensation granted in this appeal. 20. In **Sarla Verma v. Delhi Transport** **MACA.No.73 OF 2017** **12** **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. 21. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench **MACA.No.73 OF 2017** **13** 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. 22. 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 multiplier of **9** applied by the Tribunal is correct and proper. 23. Towards loss of income due to disability, Tribunal awarded an amount of Rs.3,34,800/- (5000 x 12 x 9 x 62/100). Since the monthly income of the appellant is refixed notionally as Rs.9,000/-, the compensation under this head is re-fixed as Rs.6,02,640/- (9000 x 12 x 9 x 62/100), resulting an additional compensation of **Rs.2,67,840** /- (6,02,640 – 3,34,800). In the result, the appellant/claimant is entitled for payment of an additional compensation of **Rs.3,23,840/-** (Rupees Three lakh twenty three thousand and eight hundred and forty only) [(36,000 + 50,000 + 2,67,840) – **MACA.No.73 OF 2017** **14** 30,000], in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 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 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/11/10