P.K. Prabhakaran v. Asok Kumar, P.N. Alikutty, United India Insurance Co. Ltd., M. Sathyanarayanan and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941** # **MACA.No.482 OF 2006** **AGAINST THE AWARD IN O.P.(MV) NO.858/2001 DATED 09-12-2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT:** **P.K.PRABHAKARAN, S/O.KUNJIKRISHNAN NAIR, PULIYULLAKANDIYIL HOUSE, PULLIPADAM POST,MAMPAD,MALAPPURAM.** **BY ADV. SRI.VINOD VALLIKAPPAN** ## **RESPONDENTS:** - **1 ASOK KUMAR, S/O.NARAYANAN, PARUTHIPETTA CHALAPARAMBIL HOUSE, KARUVAMBRAM POST, AMBALAPADI, MANJERI, MALAPPURAM.** - **2 P.N. ALIKUTTY, S/O. ARAMMEL MOLLA, PANANILATH HOUSE, MANJERI POST, MALAPPURAM.** - **3 MS. UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, ARAFA BUILDING, COURT ROAD, MANJERI.** - **4 M. SATHYANARAYANAN, S/O. KUMARAN NAIR, MANADIYIL HOUSE, KOVILAKAM KUNDU, MANJERI.** - **5 M/S. NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, KORAMBAYIL BUILDINGS, MANJERI. R5 BY ADV. SRI.E.M.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.482 OF 2006** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.858 of 2001 on the file of the Motor Accidents Claims Tribunal, Manjeri, 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 03.01.2001, while he was getting down from a jeep. At the place of accident, he was knocked down by an autorickshaw driven by the 1[st] respondent, owned by the 4[th] respondent and insured with the 5[th] respondent. The 2[nd] respondent is the owner of the jeep and the 3[rd] respondent is its insurer. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, though the 1[st] respondent driver of the autorickshaw entered appearance through counsel, no written statement was filed. Respondents 2 and 4 remained absent and they were set ex-parte. The 3[rd] **MACA.No.482 OF 2006** -3- respondent insurer of the jeep filed written statement admitting insurance coverage of the said vehicle; however, denying negligence alleged against the 1[st] respondent driver. The insurer denied the involvement of the said vehicle in the accident. The 5[th] respondent insurer of the autorickshaw filed a written statement admitting the insurance coverage of the autorickshaw; however, denying the liability. The insurer contended that at the time of accident the 1[st] respondent driver was not having a valid driving licence and hence there is violation of policy conditions. 3. Before the Tribunal, Exts.A1 to A5 were marked on the side of the appellant/claimant. On the side of the respondents, the charge sheet was marked as Ext.B1. The document marked as Ext.X1 is the disability certificate issued by the Medical Board 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 **MACA.No.482 OF 2006** -4- autorickshaw by the 1[st] respondent driver. Since the insurance coverage of the offending vehicle was not in dispute, the insurer was held liable to indemnify the insured. On a finding that, at the time of accident, the 1[st] respondent driver of the autorickshaw was not holding a valid driving licence, the 5[th] respondent insurer is granted recovery right to proceed against the 4[th] respondent owner of the autorickshaw. Under various heads, the Tribunal awarded a total compensation of Rs.77,659/- together with interest at the rate of 6% per annum from the date of petition till realisation with cost of Rs.1,060/-, and directed the 5[th] respondent insurer to satisfy the award. The Tribunal permitted the 5[th] respondent insurer to recover the said amount by proceeding against the 4[th] respondent owner of the autorickshaw. 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 5[th] respondent insurer. Despite service of notice, none appears **MACA.No.482 OF 2006** -5- for the 4[th] respondent owner of the autorickshaw. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 2[nd] respondent was dispensed with, by the order of this Court dated 03.10.2019. 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. **MACA.No.482 OF 2006** -6- 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 of claim|Head of claim|Amount<br>allowed| |---|---|---|---| |1|Transport to Hospital||500| |2|Extra nourishment and bystanders<br>expenses||3,100| |3|Medical expenses||12,000| |4|Pain and suffering||21,600| |5|Loss of earning for one year||15,000| |6|Disability (|15000x9x16<br>)|21,600| **MACA.No.482 OF 2006** -7- **==> picture [351 x 39] intentionally omitted <==** 11. The accident occurred on 03.01.2001. At the time of accident, the appellant was aged 39 years. The appellant claimed a monthly income of Rs.4,000/- as a rubber tapper. 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.1,250/-, 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 **MACA.No.482 OF 2006** -8- 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 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 **MACA.No.482 OF 2006** -9- 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 2001, 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 fix the monthly income of the appellant notionally as Rs.3,000/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A2 is the wound certificate. Ext.A3 is the discharge certificate; and Ext.A4 is the treatment certificate. As per medical records, the appellant had sustained compound fracture both bone (R) leg, lacerated wound (R) knee. There is non union Tibia and fibula (R). He had undergone inpatient treatment for a period of 31 days. 16. In Ext.X1 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account **MACA.No.482 OF 2006** -10- of the injuries sustained in the accident, at 9%. 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 for one year, the Tribunal awarded a sum of Rs.15,000/- at the rate of Rs.1,250/- for a period of 12 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 12 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is refixed notionally as Rs.3,000/-, the compensation under the head loss of earning is re-fixed as Rs.36,000/- (3,000 x 12), resulting an additional compensation of **Rs.21,000/-** (36,00015,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 31 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. The accident is of the year 2001. Considering the nature of injuries sustained and the treatment the appellant **MACA.No.482 OF 2006** -11- had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1000 - 500). 19. Towards extra nourishment and bystander expenses, the Tribunal awarded a sum of Rs.3,100/- (100 x 31). The accident is of the year 2001 and the appellant had undergone inpatient treatment for 31 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.4,650/- (150 x 31), and a further sum of Rs.3,100/(100 x 31) under the head extra nourishment, resulting an additional compensation of **Rs.4,650/-** [(4650 + 3100)3,100] under these heads. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.25,459/-, covered by Ext.A5 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 **MACA.No.482 OF 2006** -12- this appeal. 21. 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 the head pain and suffering is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.3,000/-** (15,000 – 12,000). 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 **MACA.No.482 OF 2006** -13- 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. ## 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 39 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 16 applied by the Tribunal is not correct and and the proper multiplier to be applied is **15** . 25. Towards compensation for permanent disability, the **MACA.No.482 OF 2006** -14- Tribunal awarded a sum of Rs.21,600/- (1,250 x 12 x 16 x 9/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,000/-, applying the multiple of 15 applicable to the age group of the appellant and the percentage of permanent disability as 9%, the compensation under the head permanent disability is re-fixed as Rs.48,600/- (3,000 x 12 x 15 x 9/100), resulting an additional compensation of **Rs.27,000/-** (48,600 – 21,600) under this head. 26. Tribunal awarded no amount towards loss of amenities. Considering the fact that the injuries sustained in the accident had resulted in permanent disability of 9% as assessed in Ext.X1 disability certificate issued by the Medical Board, this Court deem it appropriate to grant a sum of **Rs.10,000/-** as compensation towards loss of amenities. 27. On 02.02.2016, the Division Bench of this Court passed the following order; “Though notice was ordered as early as on 09.06.2006, no process charges have been remitted so far. The learned counsel for the appellant seeks short time to cure the defect. One week's time is granted, on payment of Rs.500/- (Rupees Five hundred only) as cost to the Kerala Mediation and Conciliation Centre and on condition that if any enhancement **MACA.No.482 OF 2006** -15- comes to be ordered, the appellant will not be entitled to get interest for the period covered by delay and also till the date of curing the defect. The claimant and the insurer are required to be present before the Court on 09.03.2016, to be referred to the Lok Adalath and to have the issue settled accordingly, if the terms come to be agreeable to both sides.” After the said order steps were taken on 17.02.2016. 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.66,150/-** (Rupees sixty six thousand one hundred and fifty only) [21,000 + 500 + 4,650 + 3,000 + 27,000 + 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period covered by the order dated 02.02.2016. The 5[th] 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 **MACA.No.482 OF 2006** -16- Circular No.3 of 2019 dated 06.09.2019. In terms of the award, the 5[th] respondent insurer shall recover the additional compensation granted in this appeal together with interest by proceeding against the 4[th] respondent owner of that autorickshaw. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr