PRADEEP S NAIR v. NATIONAL INSURANCE COMPANY LTD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 16TH DAY OF OCTOBER 2019 / 24TH ASWINA, 1941** ## **MACA.No.3826 OF 2019** **AGAINST THE AWARD IN OPMV 1446/2014 DATED 29-06-2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** **APPELLANT/S:** **PRADEEP S NAIR, AGED 35 YEARS S/O SIVASANKARAN NAIR, ARAKKAL HOUSE, IRAMALLUR, KOTHAMANGALAM, NOW RESIDING AT ELAPANASSERYIL HOUSE, MUDAKKUZHA P.O.** **BY ADVS. SRI.A.N.SANTHOSH SRI.LAL GEORGE** **RESPONDENT/S:** **THE NATIONAL INSURANCE COMAPANY LTD THODUPUZHA TOWN BRANCH, THODUPUZHA-685 584.** **OTHER PRESENT:** **SRI LAL GEORGE - STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLL** -2- MACA. No. 3826 of 2019 ## **JUDGMENT** The appellant is the claimant in OP(MV) No.1446 of 2014 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, which is 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 08.08.2014, while he was riding a motorcycle bearing Reg.No. KL-44/9531. At the place of accident, the motorcycle was hit by a car bearing Reg.No.KL-17/H-7395 owned and driven by the 1[st] respondent before the Tribunal and insured with the respondent herein. As a result of the accident, the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the motor car by the 1[st] respondent owner-cum-driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.7 lakhs under various heads. 2. Before the Tribunal, the owner-cum-driver of the offending vehicle filed written statement admitting the accident; however, denying the negligence attributed against -3- MACA. No. 3826 of 2019 him. The 2[nd] respondent insurer filed written statement admitting the insurance coverage; however, denying the negligence alleged against the driver of the offending vehicle. It was also contended that the compensation claimed under various heads are exorbitant. 3. Before the Tribunal Exts.A1 to A11 were marked on the side of the claimant. Both sides have not chosen to adduce any oral 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 the motor car by the 1[st] respondent owner-cum-driver. Since insurance coverage of the offending vehicle is not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. 5. Under various heads, the Tribunal awarded a total compensation of Rs.6,97,367/- and directed the 2[nd] respondent insurer to deposit the said amount before the Tribunal together with the interest at the rate of 8% per annum from the date of petition with proportionate cost. -4- MACA. No. 3826 of 2019 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the respondent insurer. 8. The issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under various heads. 9. 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 -5- MACA. No. 3826 of 2019 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. 10. 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. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|The compensation claimed<br>under different heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details in<br>a nutshell| |---|---|---|---|---| -6- MACA. No. 3826 of 2019 |1|Loss of earnings|120000|48000/-|Rs.6000x8months| |---|---|---|---|---| |2|Partial loss of earnings|NIL|NIL|| |3|Transport to hospital|10000|3500|3 IP + reviews| |4|Extra nourishment|25000|2500|| |5|Medical expenses|300000|401897|Actual medical bills| |6|Pain and suffering|100000|60000|| |7|Loss of amenities etc.|50000|45000|| |8|Permanent disability|200000|126720|Rs.6000x12x16x11%| |9|Attendance charge|50000|8750|Rs.250x 35 days| |10|Damage to clotes etc|1000|1000|| |11|Future treatment exp.|50000|Nil|| ||Total|906000/-<br>limited to<br>7,00,000/-|6,97,367/-|| 12. The accident occurred on 08.08.2014. At the time of accident, the appellant was aged 30 years. He claimed a monthly income of Rs.10,000/- as a Painter. However, no reliable materials were placed on record to prove the monthly income. 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 different heads. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** -7- MACA. No. 3826 of 2019 **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 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. 14. In **Syed Sadiq v. Divisional Manager, United** -8- MACA. No. 3826 of 2019 **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 capable of earning 6,500/- per month. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2014, 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 -9- MACA. No. 3826 of 2019 monthly income of the appellant notionally as Rs.9,500/-, for the purpose of assessing compensation under different heads. 16. As per Ext.A6 wound certificate, the appellant had sustained puncture wound right forearm with fracture right forearm bones, lacerated would right hip with suspected fracture pelvis/femur. Ext.A8 is the discharge summary issued from Medical Trust Hospital, Ernakulam stating that the appellant had sustained the following injuries; (1) poly trauma-Unstable pelvis fracture with disruption of right sacro illac joint and pubic diastasis, (2) Both bone fracture right forearm. As per Ext.A8, wound debridement of right forearm and Open Reduction and internal Fixation of both bone right forearm with INOR 3.5 DCP 7 holed plate with 3 screws proximally and 3 screws distally, reduction of ulna fracture with three 1.5 mm K wires, Open Reduction and Internal Fixation of pubic symphysis + percutaneous crew fixation right Sacro Illiac joint etc., were done. The appellant was admitted in the hospital on 8.8.2014 and he was discharged on 12.9.2014. Ext.A9 is the discharge summary for his -10- MACA. No. 3826 of 2019 readmission for K wire removal of right ulna. Ext.A10 series are medical bills for Rs.4,01,897/-. 17. Ext.A11 is the disability certificate issued by Dr.Mohammed Ali, Orthopaedic Surgeon, in which 11% disability has been certified. It is evident from Ext.A11 that the doctor had examined the petitioner clinically and radiologically and noted surgical scar over right forearm over pubis, and the findings are as follows: - 1) United fracture both bones with distal radioulnar subluxation. - 2) Ankylosed right sacro iliac joint with cancellous screw in situ - 3) Diastasis symphysis pubis with recon plate and screws in situ. The Tribunal accepted the permanent disability as 11% for the purpose of assessing compensation under various heads. 18. 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** -11- MACA. No. 3826 of 2019 **[(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. ## 19. 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 -12- MACA. No. 3826 of 2019 paragraph 42 of the said judgment. 20. In the instant case, as on the date of accident, the appellant was aged 30 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 incorrect. Considering the age group of the appellant, the appropriate multiplier is **17.** 21. Towards loss of earning the Tribunal awarded a sum of Rs.48,000/- at the rate of Rs.6,000/- for a period of 8 months. Considering the nature of injuries sustained and also the treatment the appellant had undergone, the period for loss of earning fixed by the Tribunal as 8 months warrants no interference. Since the monthly income of the appellant is refixed nothionally as Rs.9,500/- the compensation under the head loss of earning is refixed as Rs.76,000/- (9,500 x 8) resulting an additional compensation of Rs. **28,000** /-. 22. Towards permanent disability the Tribunal awarded a sum of Rs.1,26,720/-(6,000 x 12 x 16 x 11/100). Since the monthly income of the appellant is notionally refixed as -13- MACA. No. 3826 of 2019 Rs.9,500/-, applying the multiplier as 17 and the percentage of disability as 11%, the compensation under this head is refixed as 2,13,180/- (9,500 x 12 x 17 x 11/100), resulting an additional compensation of Rs. **86,460/-** . 23. Towards extra nourishment, the Tribunal awarded a sum of Rs.2,500/-. The appellant had undergone inpatient treatment for 35 days. Therefore, the compensation under this head is refixed as Rs.5,250/-, resulting an additional compensation of **Rs.2,750/-** . 24. Towards bystander expenses, the Tribunal awarded a sum of Rs.8,750/-. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 25. Towards pain and sufferings the Tribunal awarded a sum of Rs.60,000/- and towards loss of amenities a further sum of Rs.45,000/-. Considering the nature of injuries sustained, the treatment the appellant had undergone and also the permanent disability that had arisen out of those injuries, the compensation granted under the aforesaid head -14- MACA. No. 3826 of 2019 cannot be said to be on the lower side. 26. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation, which requires no enhancement in this appeal. 27. In the result, the appellant will be entitled for an additional compensation of **Rs.1,17,210/-** (Rupees one lakh seventeen thousand two hundred and ten only) [28,000/- + 86,460/- + 2,750/-] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 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. 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. 28. In view of the order of this Court in C.M.Appln. No. -15- MACA. No. 3826 of 2019 1 of 2019 dated 01.10.2019, the appellant will not be entitled to get interest for the period of delay of 674 days in filing the appeal. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN JUDGE** ## **das**