Paryayi @ Pareed v. Sajeer Kottangodan, Muhammed Rafi and The National Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** ## **MACA.No.3726 OF 2019** **AGAINST THE AWARD IN OPMV 972/2016 DATED 10-01-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT:** **PARYAYI @ PAREED, AGED 43 YEARS, S/O.ABDULLA, RESIDING AT CHEELUPARAMBATH, POYILOOR, THRIPPANGOTTUR, KANNUR- 670693, NOW RESIDING AT HASEENA MANZIL, PRABHAPURAM, MANNENGODE, KOPPAM, PATTAMBI TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS:** **1 SAJEER KOTTANGODAN, S/O.ABOOBACKER, RESIDING AT KOTANGODAN HOUSE, PANNIPPARA, PERAKAMANNA, MALAPPURAM DISTRICT-676 541. 2 MUHAMMED RAFI, S/O.ASSAINAR, RESIDING AT KUTTASSERY HOUSE, P.O.PANNIPPARA, MALAPPURAM DISTRICT-676 541. 3 THE NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE: KOLLANNUR DEVASSY BUILDING, 2ND FLOOR, ROUND EAST, THRISSUR-680 001.** **SRI.LAL GEORGE, STANDING COUNSEL, THE NATIONAL INSURANCE COMPANY LIMITED** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3726 OF 2019** -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.972 of 2016 on the file of the Motor Accidents Claims Tribunal, Ottapalam, a claim petition filed under Section 166 of the Motor Vehicles Act claiming compensation on account of the injuries sustained in a motor accident, which occurred on 27.10.2015 while he was riding a motorcycle bearing registration No.KL-9/Q-9833. At the place of accident, the motorcycle was hit on a car bearing registration No.KL-55/D-4628, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.6,00,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the offending vehicle; however, denying negligence against the **MACA.No.3726 OF 2019** -3- motorcycle by its driver. The insurer contended that the appellant was riding the motorcycle without valid insurance policy. The age, occupation, monthly income, injuries suffered and treatment underwent, expenses met for such treatment, disability etc. are denied. The insurer contended that the compensation claimed under various heads is on the higher side. 3. Before the Tribunal, Exts.A1 to A8 series were marked on the side of the appellant/claimant. The doctor, who issued Ext.A1 disability certificate was examined as PW1. On the side of the respondents, Case Diary in Crime No.1172 of 2015 of Pattambi Police Station was marked as Ext.B1. The Police officer, who brought Ext.B1 Case Diary was examined as RW1. 4. After considering the pleadings and materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the offending motor car by the 2[nd] respondent driver. Since insurance coverage of the said vehicle is not in dispute, the 3[rd] respondent insurer was liable to indemnify the insured. Under **MACA.No.3726 OF 2019** -4- various heads, the Tribunal awarded a total compensation of Rs.2,47,940/-, together with interest at the rate of 9% per annum from the date of petition, i.e., 23.12.2016 till date of realisation, with proportionate cost and directed the insurer to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant and also the learned Standing Counsel for the 3[rd] respondent insurer. Since insurance coverage of the offending motor car is admitted, service of notice on respondents 1 and 2 is dispensed with. 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 **MACA.No.3726 OF 2019** -5- 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. 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 **MACA.No.3726 OF 2019** -6- 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; |Sl.<br>No.|Head of Claim|Amount<br>claimed<br>(in Rupees)|Amount<br>awarded<br>(in Rupees)|Basis-vital details in a<br>nut shell| |---|---|---|---|---| |1|Loss of earning|90000|15000|Loss of earning for 3<br>months @`5000/-<br>per month| |2|Transportation<br>expenses|6000|1000|Brought to hospital<br>and back home.| |3|Extra nourishment|15000|1600|Hospital for 8 days<br>(8x200)| |4|Bystander expenses|15000|1600|Hospital for 8 days<br>(8x200)| |5|Damage to clothing<br>and articles|2000|1000|Nominal amount| |6|Medical expenses|150000|83740|Medical<br>bills<br>for<br>`83739/- as per<br>Ext.A8.| |7|Future treatment<br>expenses|40000|0|| |8|Compensation for<br>pain and suffering|60000|30000|For the inconvenience<br>caused out of the<br>injuries.| |9|Compensation for<br>loss of enjoyment<br>and amenities of life|40000|30000|For the inconvenience<br>caused out of the<br>injuries.| |10|Compensation for<br>disability|300000|84000|5000x12x14x10/100| ||Total|718000|247940|| ||Limited to|600000||| 11. The accident occurred on 27.10.2015. At the time of accident, the appellant was aged 40 years. He claimed **MACA.No.3726 OF 2019** -7- monthly income of Rs.25,000/- as a heavy duty driver. However, no reliable materials were placed on record to prove the monthly income. The heavy driving licence of the appellant was also not placed on record. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income of the appellant notionally at Rs.5,000/- for 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, 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 **MACA.No.3726 OF 2019** -8- 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 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 **MACA.No.3726 OF 2019** -9- 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 2015, 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 refix the monthly income of the appellant notionally as Rs.10,000/- for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A3 is the wound certificate and Ext.A7 is the discharge summary. As evident from the medical records, in the accident, the appellant sustained open type-II fracture both bones of left leg; open type-III A fracture of 5[th] metatarsal base; left foot with haemobursa; and deep lacerated wound on the lower lip. He was admitted in Kims Al Shifa Super Speciality Hospital, Perinthalmanna on 27.10.2015 and discharged on 03.11.2015. He underwent surgery for internal fixation. Ext.A8 series are the medical bills for Rs.93.090/-. The bills with serial Nos.10 and 11 were objected and after deducting the said amount, **MACA.No.3726 OF 2019** -10- the Tribunal fixed the medical expenses as Rs.83,739/-. 16. The doctor who issued Ext.A1 disability certificate was examined as PW1. In Ext.A1 disability certificate, PW1 doctor assessed the permanent whole body disability of the appellant as 15%, for open type-II fracture both bones left leg with angulation, open type-III A fracture 5[th] metatarsal base of left foot with angulation, partial ankylosis of the right knee with 120[0] flexion. The Tribunal scaled down the percentage of disability to 10%, for the purpose of awarding compensation under the head permanent disability, without assigning any valid reason. 17. Once the disability assessed in Ext.A1 stands proved by examining PW1 doctor, in the absence of any vitiating circumstances in the assessment of disability, brought out during cross examination of PW1, the Tribunal should have accepted 15% permanent disability assessed in Ext.A1, considering the nature of injuries sustained and the disabilities noted in that certificate. Therefore, the appellant is entitled for award of disability compensation taking the percentage of permanent disability as 15%, as assessed in **MACA.No.3726 OF 2019** -11- Ext.A1 disability certificate. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.15,000/-, at the rate of Rs.5,000/- 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 for loss of earning can be re-fixed as 5 months. Since the monthly income of the appellant is notionally re-fixed as Rs.10,000/-, the compensation under this head is re-fixed as Rs.50,000/- (10,000 x 5), resulting an additional compensation of **Rs.35,000/-** (50,000 - 15,000). 19. Towards transportation expenses, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries, the appellant had undergone, the compensation under this head is re-fixed as Rs.2,000/-, resulting an additional compensation of **Rs.1,000/-** (2,000 - 1,000). 20. Towards damage to clothing, the Tribunal awarded a sum of Rs.1,000/-. Since the accident is of the year 2015, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 - 1,000). **MACA.No.3726 OF 2019** -12- 21. Towards bystander expenses, the Tribunal awarded a sum of Rs.1,600/- (200 x 8). Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,600/- (200 x 8). The accident is of the year 2015 and the appellant had undergone inpatient treatment for 8 days. Considering the nature of injuries sustained the treatment the appellant had undergone, the compensation under the head bystander expenses is re-fixed as Rs.2,400/- (300 x 8), resulting an additional compensation of **Rs.800/-** (2,400 - 1,600). The compensation under the head extra nourishment represents just and reasonable compensation, which requires no enhancement in this appeal. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.83,739/- covered by A8 medical bills. The Tribunal has stated valid reasons for not reckoning the expenses in respect of medical bill Nos.10 and 11. 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. 23. Towards compensation for pain and suffering, the **MACA.No.3726 OF 2019** -13- Tribunal awarded a sum of Rs.30,000/- and a further sum of Rs.30,000/-was awarded towards loss of enjoyment and amenities of life. Considering the nature of injuries sustained, treatment the appellant had undergone and the disability that had arisen on account of the injuries sustained in the accident, the compensation awarded by the Tribunal under the above heads cannot be said to be on the lower side, which requires no enhancement in this appeal. 24. 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 **MACA.No.3726 OF 2019** -14- 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. ## 25. 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. 26. In the instant case, as on the date of accident, the appellant was aged 40 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. 27. Towards compensation of permanent disability, the Tribunal awarded a sum of Rs.84,000/- (5000 x 12 x 14 x **MACA.No.3726 OF 2019** -15- 10/100). As the appellant was aged 40 years as on the date of accident, the proper multiplier is 15 instead of 14. Since the monthly income of the appellant is notionally fixed as Rs.10,000/- and the proper multiplier is 15, the compensation under this head is re-fixed as 2,70,000/- (10,000 x 12 x 15 x 15/100), resulting an additional compensation of **Rs.1,86,000/-** (2,70,000 - 84,000). 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.2,23,300/-** (Rupees two lakh twenty three thousand three hundred only) [35,000 + 1,000 + 500 + 800 + 1,86,000] 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 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 **MACA.No.3726 OF 2019** -16- ## 06.09.2019. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr