P.K. Divakaran v. United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941** ## **MACA.No.1930 OF 2008** **AGAINST THE AWARD IN OP(MV)NO.149/1997 DATED 24-01-2007 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER :** **P.K.DIVAKARAN AGED 63 YEARS S/O. KUNHAPPU,5/2661, JAFFAR KHAN COLONY,, KOZHIKODE 673 006, NOW RESIDING AT JANA JEEVA, HABITAT, FLAT NO. B1, HARULUR ROAD, OPPOSITE, SARJAPRASAD ROAD, BANGLORE-34** **BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH** ## **RESPONDENTS/RESPONDENTS :** - **1 T.A.UMMER, S/O.KUTTY HASSAN HAJI PERUMUDAYIL HOUSE,P.O.KUTTIKKATTUR,KOZHIKODE.** - **2 THE BRANCH MANAGER** **THE UNITED INDIA INSURANCE CO.LTD, CITY BRANCH OFFICE NO.2, MAVOOR ROAD JUNCTION,KOZHIKODE, MAVOOR ROAD,KOZHIKODE.** ## **R2 BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1930 OF 2008** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.149 of 1997 on the file of the II Additional 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 him in a motor accident, which occurred on 24.09.1996, while he was walking along the side of a public road. At the place of accident, he was knocked down by a bus bearing registration No.KED/8199 owned by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of bus by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent did not enter appearance. The 2[nd] respondent insurer filed written statement admitting the insurance coverage of the bus involved in the accident; however, denying the negligence alleged against its driver. It was contended that the **MACA.No.1930 OF 2008** **3** compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A4 were marked on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary evidence. The document marked as Ext.C1 is the disability certificate issued by the Medical Board at Medical College Hospital, Kozhikode, assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the motor accident. 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 bus by its driver. Since insurance coverage of the vehicle is not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.29,620/-, together with interest at the rate of 6% per annum from the date of petition till date of payment, with a cost of Rs.250/- 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 **MACA.No.1930 OF 2008** **4** this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 2[nd] respondent insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent 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 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 **MACA.No.1930 OF 2008** **5** '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; |Head|Amount Awarded<br>(in Rupees)| |---|---| |Transport to hospital|300/-| |Extra nourishment|500/-| **MACA.No.1930 OF 2008** **6** |Damage to cloth|400/-| |---|---| |Bystander expenses|500/-| |Temporary loss of earning|4,500/-| |Medical expenditure|1,000/-| |Pain and suffering|12,000/-| |Compensation for permanent<br>disability|7,920/-| |Loss of amenities in life|2,500/-| |Total|29,620/-| 11. The accident occurred on 24.09.1996. At the time of accident, the appellant was aged 53 years. The appellant claimed a monthly income of Rs.3,000/- as Manager of a Money Lending Firm. No materials were produced before the Tribunal to prove the monthly income of the appellant. 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.1,500/-, 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 **MACA.No.1930 OF 2008** **7** 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 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 **MACA.No.1930 OF 2008** **8** 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 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 1996, 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.1,750/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A2 is the wound certificate. Ext.A3 is the CT Scan report and Ext.A4 is the **MACA.No.1930 OF 2008** **9** reference card issued from Medical College Hospital, Kozhikode. As per medical records, the appellant had undergone inpatient treatment for a period of three days and in the accident the appellant sustained lacerated wound 1 x ½ c.m on left side of forehead and evidence of fracture of shaft of right humerus. X-ray showed fracture shaft of humerus right. Ext.A3 CT Scan showed a mild interhemispheric bleed. 16. In Ext.C1 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 4%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.4,500/-, at the rate of Rs.1,500/- per month 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 4 months. Since the monthly income of the appellant is **MACA.No.1930 OF 2008** **10** re-fixed notionally as Rs.1,750/-, the compensation under the head loss of earning is re-fixed as Rs.7,000/- (1,750 x 4), resulting an additional compensation of **Rs.2,500/-** (7,000 – 4,500). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 3 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.300/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.450/-** (750 – 300). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 1996 and the appellant had undergone inpatient treatment for 3 days. 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 **MACA.No.1930 OF 2008** **11** these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards damage to cloth, the Tribunal awarded a sum of Rs.400/-. Considering the fact that the accident is of the year 1996, the compensation under this head is refixed as Rs.750/-, resulting an additional compensation of **Rs.350/-** (750 - 400). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.1,000. In the absence of any medical bills, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. 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** **MACA.No.1930 OF 2008** **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. 24. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench **MACA.No.1930 OF 2008** ## **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. 25. In the instant case, as on the date of accident, the appellant was aged 53 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. 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.7,920/- (1,500 x 12 x 11 x 4/100). Since the monthly income of the appellant is refixed notionally as Rs.1,750/-, applying the multiplier of 11 applicable to the age group of the appellant and the percentage of permanent disability as 4%, the compensation under the head permanent disability is refixed as Rs.9,240/- (1,750 x 12 x 11 x 4/100), resulting an additional compensation of **Rs.1,320/-** ( 9,240 – 7,920). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.2,500/-. In Ext.C1 disability certificate the **MACA.No.1930 OF 2008** **14** permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 4%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.C1 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.7,500/-, resulting an additional compensation of **Rs.5,000/-** (7,500 – 2,500). 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.9,620/-** (Rupees Nine thousand six hundred and twenty only) [2,500 + 450 + 350 + 1,320 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 379 days, which was condoned vide order dated 16.11.2019 in C.M.Appln.No.1958 of 2008, subject to the condition that in case any enhancement is granted, the appellant will not be entitled for interest on the said amount for the period of delay. The 2[nd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two **MACA.No.1930 OF 2008** **15** 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. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant as per 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. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/25/11