P.K.AZEEZ v. Prabhakaran C. and National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941** ## **MACA.No.3760 OF 2019** ## **AGAINST THE AWARD IN OP(MV)No.622/2016 DATED 04-07-2019 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **P.K.AZEEZ, AGED 51 YEARS S/O.LATE KHADER, PUZHANKARAYILLATH POTTAYIL HOUSE, MARUTHAYOOR P.O., PAVARATTY, THRISSUR DISTRICT- 680507.** ## **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**PRABHAKARAN C.,**| |---|---| ||**S/O.MUNDAN C., CHETTIYARTHODI HOUSE, KAVALAPPARA,**| ||**KOONATHARA P.O., VANIYAMKULAM, PALAKKAD DISTRICT-**| ||**679523.**| |**2**|**NATIONAL INSURANCE COMPANY LTD.,**| ||**SHORNUR BUSINESS CENTRE, 1ST FLOOR, P.K.TOWERS, OPP.**| ||**JUMA MASJID, MAIN ROAD, SHORNUR,**| ||**PALAKKAD- 679121, (RESPONDENTS 3 TO 5 BEFORE THE**| ||**HON'BLE TRIBUNAL ARE NOT MADE PARTIES HEREIN SINCE NO**| ||**RELIEF IS CLAIMED AGAINST THEM).**| ## **R2 BY SRI LAL GEORGE, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.3760 OF 2019 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.622 of 2016 on the file of the Motor Accidents Claims Tribunal, Ottapalam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident, which occurred on 26.09.2015, involving an autorickshaw bearing registration No.KL-51/E-6458, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent, and a Tata winger van bearing registration No.KL-49/A-6575. At the time of accident, the appellant/claimant was riding a motorcycle bearing registration No.KL-46/K-2084. In the accident, the appellant sustained injuries. Alleging negligence against the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.16,91,500/- under various heads. 2. The said claim petition was tried along with connected matters. Exts.A1 to A15 were marked on the side of the claimants and Pws.1 and 2 were examined. Exts.B1 to B14 were marked on the side of the respondents and Rws.1 to 6 were examined. 3. After considering the pleadings and materials on MACA.No.3760 OF 2019 3 record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the autorickshaw by the 1[st] respondent driver. Since insurance coverage of the said vehicle was not under dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.6,24,455/- together with interest at the rate of 9% per annum, from the date of petition, i.e., 16.08.2016, till the date of realisation, with proportionate costs, and the 2[nd] respondent insurer was directed to deposit the said amount. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 5. Heard the learned counsel for the appellant and Sri. Lal George, the learned Standing Counsel for the 2[nd] respondent insurer. Since insurance coverage of the offending vehicle is not in dispute, service of notice on the 1[st] respondent is dispensed with. 6. 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 different heads. MACA.No.3760 OF 2019 4 7. 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. 8. 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 ## MACA.No.3760 OF 2019 5 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. 9. 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 Rs.)|Amount<br>awarded<br>(in Rs.)|Basis-vital details in<br>a nut shell| |---|---|---|---|---| |1|Loss of earning|125000|30000|Loss of income for a<br>period of 5 months<br>@ 6000/-| |2|Transportation<br>expenses|15000|17400|Rs.17400/- as per<br>Ext.A11 series trip<br>sheet| |3|Extra nourishment|15000|4800|Hospitalisation for 24<br>days (24x200)| |4|Bystander expenses|20000|4800|Hospitalisation for 24<br>days (24x200)| |5|Damage to clothing and<br>articles|1500|1000|Nominal amount| |6|Medical expenses|225000|229375|Medical bills as per<br>Ext.A7 and A12 to<br>A15.| |7|Future treatment<br>expenses|50000|0|| |8|Compensation for pain<br>and suffering|100000|40000|For the<br>inconvenience<br>caused out of the<br>injuries| |9|Compensation for loss<br>of enjoyment and<br>amenities in life|200000|35000|For the<br>inconvenience<br>caused out of the<br>injuries| |10|Compensation for<br>permanent disability<br>and loss of earning<br>power|850000|262080|6000x12x13x28/100| |11|Compensation for loss<br>of earning power|||| MACA.No.3760 OF 2019 6 |12|Compensation for loss<br>of marriage prospects|15000|0|| |---|---|---|---|---| |13|Compensation for short<br>expectancy of life|25000|0|| ||Total|16,91,500|6,24,455|| ||10.<br>The accident occurred on||26.09.2015. At the time of|| accident, the appellant was aged 48 years. He claimed a monthly income of Rs.20,000/- from real estate business. 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.6,000/-, for the purpose of assessing compensation under various heads. ## 11. 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 MACA.No.3760 OF 2019 7 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. 12. 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 MACA.No.3760 OF 2019 8 case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 13. 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 re-fix the monthly income of the appellant notionally as Rs.10,000/-, for the purpose of assessing compensation under various heads. 14. The document marked as Ext.A5 is the wound certificate and Ext.A6 is the discharge summary. As per medical records, the appellant had undergone inpatient treatment in Aswini Hospital for the period from 26.9.2015 to 27.9.2015. He sustained Type-III B fracture of left forearm, comminuted fracture of proximal tibia right, comminuted distal tibia pilon with dedial malleolus fracture open Type-III A with bone loss. He underwent surgery. The treatment was continued from 12.02.2016 to 15.02.2016 for bone grafting and he was further admitted on 11.06.2016 and discharged on 13.06.2016 for removal of implant. Exts.A7 and A12 to A15 are the medical bills for a total sum of Rs.2,29,375/-. MACA.No.3760 OF 2019 9 15. Exts.A8 and A9 are the disability certificates assessing the permanent disability of the appellant. The appellant was referred to Medical Board, Palakkad, on an application made by the 2[nd] respondent insurer and the Medical Board issued Ext.B1 disability certificate, in which the percentage of permanent disability is assessed as 28%. The Tribunal took the said percentage of permanent disability for the purpose of assessing compensation under various heads. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.30,000/-, at the rate of Rs.6000/-, for a period of five months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of five months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.10,000/-, the compensation under the head loss of earning is re-fixed as Rs.50,000/- (10,000 x 5), resulting an additional compensation of **Rs.20,000/-** (50,000 – 30,000). 17. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 24 days in three different spells. Towards transportation to hospital, the MACA.No.3760 OF 2019 10 Tribunal awarded a sum of Rs.17,400/- covered by Ext.A11 series of trip sheets. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 18. Towards bystander expenses the Tribunal awarded a sum of Rs.4,800/- (200 x 24). Towards extra nourishment, the Tribunal awarded a further sum of Rs.4,800/- (200 x 24). The accident is of the year 2015. 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 these heads cannot be said to be on the lower side, which requires no enhancement in this appeal. 19. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,500/-. Considering the fact that the accident is of the year 2015, 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. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.2,29,375/-covered by Exts.A7 and A12 to A15 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents MACA.No.3760 OF 2019 11 just and reasonable compensation, which requires no enhancement in this appeal. 21. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.40,000/-. 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. 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 five years, i.e., multiplier of **17** for MACA.No.3760 OF 2019 12 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 48 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. 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.2,62,080/- (6,000 x 12 x 13 x 28/100). Since the monthly income of the appellant is re-fixed notionally as Rs.10,000/-, applying the multiple of 13 applicable MACA.No.3760 OF 2019 13 to the age group of the appellant and the percentage of permanent disability as 28%, the compensation under the head permanent disability is re-fixed as Rs.4,36,800/- (10,000 x 12 x 13 x 28/100), resulting an additional compensation of **Rs.1,74,720/-** (4,36,800 – 2,62,080). 26. Towards loss of amenities the Tribunal awarded a sum of Rs.35,000/-. In Ext.B1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 28%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.B1 disability certificate, the compensation awarded by the Tribunal under this head cannot also be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 27. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,94,720/-** (Rupees One lakh ninety four thousand seven hundred and twenty only) [20,000 + 1,74,720] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] respondent/insurer shall satisfy the additional compensation granted in this appeal, together with interest, MACA.No.3760 OF 2019 14 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. Payment of the amount 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. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN** **JUDGE** jv