PIOUS VARGHESE S/O KUNJUVAREED @ VARGHESE MANGALY HOUSE, VATHAKKATTU, THURAVOOR, ANGAMALY v. KERALA STATE ROAD TRANSPORT CORPORATION and ANTU S/O. DEVASSY

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941** ## **MFA.No.184 OF 2003** **AGAINST THE JUDGMENT AND AWARD IN OP(MV)No.813/1998 DATED 31-08-2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/PETITIONER:** **PIOUS VARGHESE S/O KUNJUVAREED @ VARGHESE MANGALY HOUSE, VATHAKKATTU, THURAVOOR, ANGAMALY.** **BY ADVS. SRI.V.V.NANDAGOPAL NAMBIAR, SMT.K.P.SREELATHA SMT.RESHMI JACOB** ## **RESPONDENT/RESPONDENTS:** **1 KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM - 695 023. 2 ANTU S/O.DEVASSY NEELAMGAVIL HOUSE, THOLOOR VILLAGE, PARAPPUR KARAYIL, TRICHUR DISTRICT.** **R1 BY SHRI.JOHNSON P.JOHN, SC, KSRTC R1 BY ADV. SRI.JAMES KOSHY.N., SC. KSRTC R1 BY ADV. SRI.P.C.CHACKO, SC, KSRTC** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **-:2:-** M.F.A No.184/03 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.813 of 1998 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, 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 19.09.1997, while he was travelling in a Maruti car bearing registration No.KBF-6812. At the place of accident, a KSRTC bus bearing reg.No. KL-15-2208, owned by the 1[st] respondent and driven by the 2[nd] respondent hit the Maruti Car. In the accident, the appellant/claimant and others in the Maruti car sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of KSRTC bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.8,25,000/-, under various heads. 2. Before the Tribunal, the respondents filed joint written statement admitting the accident; however, denying the negligence alleged against the 2[nd] respondent. It was pointed out that the accident occurred due to the negligence of the driver of the Maruti car, who was the claimant in OP(MV) No.813 of 1998. The age, occupation, monthly income, etc. stated in the claim **-:3:-** M.F.A No.184/03 petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, the claim petition was tried along with connected matters. Exts.A1 to A42 were marked on the side of the appellant/claimants and PWs 1 to 6 were examined. Respondents have not chosen to adduce any oral or documentary 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 KSRTC bus by the 2[nd] respondent driver and respondents 1 and 2 are held jointly and severally liable to pay the amount of compensation to the appellant/claimant. Under various heads, the Tribunal awarded a total compensation of Rs.3,50,234/-, and the 1[st] respondent was directed to satisfy the award, together with interest at the rate of 9% per annum from the date of petition till realisation, with proportionate cost. 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 M.F.A No.184/03 **-:4:-** and also the learned Standing Counsel for KSRTC representing the 1[st] respondent. 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 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 M.F.A No.184/03 ## **-:5:-** 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; |Head of claim|Amount<br>allowed|Basis/vital details in a<br>nutshell| |---|---|---| |Pain and suffering|25,000/-|| |Loss of earning|10,800/-|(1,800 x 6 months)| |Damage to clothings|500/-|| |Transportation to<br>hospital|5,000/-|| |Medical expenses|2,09,454/-|(A36 series of medical<br>bills)| |Bystander's<br>expenses & extra<br>nourishment|10,000/-|| |Disability<br>compensation|70,200/-|(1800 x 12x x13 x 25%)| |Loss of amenities|20,000/-|| |**Total**|**3,50,954/-**|| 11. The accident occurred on 19.09.1997. At the time of accident, the appellant was aged 47 years. The appellant claimed M.F.A No.184/03 ## **-:6:-** a monthly income of Rs.4,000/- as Marketing Director of a chit company. In order to substantiate the said fact, Ext.A32 leave certificate was produced. Apart from Ext.A32, no materials were produced before the Tribunal to prove the monthly income of the appellant. PW6 was examined to prove Ext.A32 issued by the Managing Director of Mangalya Chits and Finance. During crossexamination, the learned Standing Counsel for the insurer was able to discredit the version of PW6. In such circumstances, the Tribunal took the monthly income notionally as Rs.1800/- 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, 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 M.F.A No.184/03 **-:7:-** 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 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 M.F.A No.184/03 **-:8:-** 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 1997, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, as also the materials placed on record, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.2,000/-, for the purpose of assessing compensation under various heads. 15. As per medical records, the appellant sustained lacerated wound on the left side of the forehead, contused abrasion on left thigh, multiple contused abrasion on the front of chest, lacerated wound on the left cheek, lacerated wound just to the left of eye, compound fracture right femur, left leg, right humerous, fracture multiple ribs. X-ray revealed that he sustained fracture shaft of M.3[rd] of right humerous, communited super condylar fracture with intercondylar extension, fracture neck of right femur, communited fracture (condylar) right tibia with subcondylar, communited fracture shaft M.3[rd] lower 3[rd] region of left tibia, intraarticular fracture lower head of left radius with fracture ulnar styloid, fracture left 8[th] and 9[th] ribs. As per M.F.A No.184/03 ## **-:9:-** Ext.A18 the appellant, who was admitted in the hospital on 19.9.1997 was subjected to surgery and two fractures were stebulised with ABE POP casts and thereafter, he was discharged on 13.10.1997. Ext.A19 is a discharge summary issued from the Medical Trust Hospital, Ernakulam which would corroborate Ext.A18. As per Ext.A20 discharge summary he was again admitted on 17.11.1997 and discharged on 1.12.1997. As per Ext.A21 discharge summary, he was again admitted at Medical Trust Hospital on 29.12.1997 for implant removal on the right elbow and thereafter discharged on 5.1.1998. As per Ext.A22 discharge summary issued from Medical Trust Hospital he was admitted in the Hospital on 27.4.1998 for bone grafting of right femur and dynamisation in left leg and on 2.5.1998 bone grafting right femur was done by taking graft from right iliac crest under general anaesthesia and dynamisation in left tibia done by removing the distal screws of the locking nail and thereafter, he was discharged on 16.5.1998. Ext.A23 to Ext.A29 would show that the petitioner was undergoing treatment from the date of accident till 31.12.2000. As per Ext.A30 certificate issued by Dr.Saj V. Kuruttukulam due to the multiple fractures following R.T.A. the appellant developed deep vain thrombosis M.F.A No.184/03 ## **-:10:-** involving both femoral and iliac veins. Ext.A35 is a venogram report which would corroborate Ext.A30 certificate. 16. Ext.A31 is a disability certificate issued by Dr.M.C.John, San Joy Hospital, Perumbavoor. He was examined as PW1, who gave evidence in terms of the said disability certificate in which the permanent disability of the appellant is assessed as 47% over the lower limit on the basis of alimcomanual. The Tribunal took the percentage of disability as 25%. Considering the nature and injuries sustained and the disability that has been noticed in Ext.A31, this Court deem it appropriate to take the percentage of disability as 30% for the purpose of assessing compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.10,800/-, at the rate of Rs.1,800/- for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is re-fixed as 10 months. Since the monthly income of the appellant is re-fixed notionally as Rs.2,000/-, the compensation under the head loss of earning is re-fixed as Rs.20,000/- (2,000 x 10), resulting in an additional M.F.A No.184/03 ## **-:11:-** ## compensation of **Rs.9,200** /- (20,000 - 10,800). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 68 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. 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.7,500/-, resulting an additional compensation of **Rs.2,500/-** (7,500 – 5,000). 19. Towards bystander expenses and extra nourishment the Tribunal awarded a consolidated sum of Rs.10,000/-. The accident is of the year 1997. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of Rs. 10,200/- (150 x 68) under the head bystander expenses. A further sum of Rs.6,800 **/-** (100 x 68) is granted under the head extra nourishment. After deducting Rs.10,000/- awarded by the Tribunal, the appellant is entitled for payment of an additional compensation of **Rs. 7,000/-** [(10,200 + 6,800) -10,000] under this head. 20. Towards damage to clothing and articles, the Tribunal M.F.A No.184/03 ## **-:12:-** awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 1997, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.2,09,454/-, covered by Ext.A36 & Ext.A37 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. 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. 23. 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** M.F.A No.184/03 **-:13:-** **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. 24. 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. M.F.A No.184/03 ## **-:14:-** 25. In the instant case, as on the date of accident, the appellant was aged 47 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 **13** applied by the Tribunal is correct and proper. 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.70,200/- (1800 x 12 x 13 x 25/100). Since the monthly income of the appellant is re-fixed notionally as Rs.2,000/-, applying the multiplier of 13 applicable to the age group of the appellant and the percentage of permanent disability as 30%, the compensation under the head permanent disability is re-fixed as Rs.93,600/- (2,000 x 12 x 13 x 30/100), resulting an additional compensation of **Rs.23,400/-** (93,600 - 70,200) under this head. 27. Towards loss of amenities the Tribunal awarded a sum of Rs.20,000/-. Considering the nature of injuries sustained and the permanent disability of 30% on account of those injuries, the compensation awarded by the Tribunal under this head refixed as Rs.30,000/-, resulting an additional compensation of **Rs. 10,000/-** (30,000 – 20,000). **-:15:-** M.F.A No.184/03 In the result, the appellant will be entitled for payment of an additional compensation of **Rs. 52,350/-** (Rupees Fifty two thousand three hundred and fifty only) [9,200 + 2,500 + 7,000 + 250 + 23,400 + 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 1[st] respondent/KSRTC 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 additional compensation to the appellant / claimant shall be 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.D162475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** das/vps