Pratheesh G. v. Roshan Raju and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **MACA.No.1469 OF 2013** **AGAINST THE AWARD IN OP(MV) 609/2010 DATED 27-11-2012 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** **PRATHEESH G AGED 25 YEARS S/O GOPALAKRISHNA PANICKER, THUNDATHIL HOUSE,EDAVATTOM.P.O, KULASHEKHARAMANGALAM VILLAGE, VAIKOM TALUK,KOTTAYAM DISTRICT.** **BY ADVS.SRI.MATHEWS K.PHILIP SMT.T.MANASY** ## **RESPONDENTS/RESPONDENTS:** **1 ROSHAN RAJU S/O.RAJU THOMAS,KANJIRAKKATTU HOUSE, UDAYAMPEROOR.P.O,MANAKUNNAM VILLAGE, KANAYANNOOR TALUK,ERNAKULAM DISTRICT-682307.** - **2 NATIONAL INSURANCE COMPANY LIMITED OMANA ARCADE,JEW STREET,ERNAKULAM, KOCHI-682317.** **3 DAYANA W/O.RAJU THOMAS,KANJIRAKKAXTTU HOUSE, UDAYAMPEROOR.P.O,MANAKUNNAM VILLAGE, KANAYANNOOR TALUK,ERNAKULAM DISTRICT-682307.** - **4 ROSHAN** **S/O.RAJU THOMAS,KANJIRAKKAXTTU HOUSE, UDAYAMPEROOR.P.O,MANAKUNNAM VILLAGE, KANAYANNOOR TALUK,ERNAKULAM DISTRICT-682307.** - **5 ROBIN** **S/O.RAJU THOMAS,KANJIRAKKATTU HOUSE,,UDAYAMPEROOR.P.O,MANAKUNNAM VILLAGE, KANAYANNOOR TALUK,ERNAKULAM DISTRICT-682307.** **R2 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1469 OF 2013** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.609 of 2010 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam, 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 12.12.2009, while he was riding a motorcycle bearing registration No.KL-5/N-9004. At the place of accident, the said motorcycle was hit by another motorcycle bearing registration No.KL-39/B-1384, owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant and also the 1[st] respondent, rider of the other motorcycle, sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.11,50,000/-, under various heads. During the pendency of the claim petition, the 1[st] respondent died and his legal heirs were impleaded as additional respondents 3 to 5. 2. Before the Tribunal, respondents 3 to 5 did not file any written statement. **MACA.No.1469 OF 2013** 3 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the offending motorcycle involved in the accident; however, denying negligence alleged against the 1[st] respondent owner-cum-rider. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A13 were marked and PWs 1 and 2 were examined on the side of the appellant/claimant. The document marked as Ext.C1 is the disability certificate issued by the Medical Board at Taluk Headquarters Hospital, Vaikom. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the offending motorcycle by the 1[st] respondent rider. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.8,61,820/-, together with interest at the rate of 9% per annum from 22.04.2010 till the date of deposit, with proportionate cost. The insurer was directed to satisfy the award within 30 days from the date of award. **MACA.No.1469 OF 2013** 4 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 2[nd] respondent insurer. 1[st] respondent died during the pendency of the claim petition. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 3 to 5 was dispensed with, by the order of this Court dated 29.10.2019. 8. 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. 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 **MACA.No.1469 OF 2013** 5 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. 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; |Head|Amount<br>claimed|Amount<br>allowed|Details| |---|---|---|---| |Loss of earnings|32000|16000|4000x4 months| **MACA.No.1469 OF 2013** 6 |Transportation expenses|1500|1000|| |---|---|---|---| |Damage to clothing|1500|500|| |Extra nourishment|10000|2500|| |Expense for treatment|425000|425000|(entire<br>amount<br>claimed)| |Bystander's expenses|10000|7800|(200x39 days)| |Shock, pain and sufferings|25000|25000|| |Loss of amenities and<br>enjoyment in life|10000|12500|| ||450000|371520|4000x12x18x43/100| |Total||**861820**|| 12. The accident occurred on 12.12.2009. At the time of accident, the appellant was aged 22 years. He claimed a monthly income of Rs.8,000/- as Mechanic Operator at Hydro Pneumatic System Company, Kalamassery. The document marked as Ext.A11 is the salary certificate. The said document was not proved by examining a competent person. Ext.A11 does not even contain the seal of the establishment. The appellant was examined as PW1. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.4,000/-, for the purpose of assessing compensation under various heads. 13. 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 **MACA.No.1469 OF 2013** 7 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 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 **MACA.No.1469 OF 2013** 8 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., in December 2009, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, and also the evidence of the claimant as PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.7,250/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the accident register cum wound certificate. Ext.A3 is the discharge summary. The injuries sustained by the appellant, as borne out from medical records, are bleeding from left ear and nose; swelling and **MACA.No.1469 OF 2013** 9 deformity right forearm; lacerated wound left upper arm, right leg; bilateral territorial SAH; hemorrhage contusion left temporal lob; fracture right zygomatic maxillary complex; fracture right forearm both bones; and weakness of right upper limb. As per Ext.A2 wound certificate issued from Ernakulam Medical Centre Hospital, immediately after the accident, he was admitted there on 12.12.2009 and discharged on 20.01.2010. Ext.A3 discharge summary contains the details of treatment. Ext.A12 certificate issued from Assissi Holistic Research Centre contains the details regarding acupuncture and physiotherapic treatment. Ext.A13 series of medical bills are for a total sum of Rs.4,18,602/-. The appellant has also produced bills for Rs.38,821/- from Assissi Holistic Research Centre. In addition to the above bills, Ayurvedic bills for Rs.14,195/- were produced, which were not accepted by the Tribunal, in the absence of medical prescription and other documents. Therefore, the Tribunal limited the claim towards medical expenses to Rs.4,25,000/-. 17. 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 43%. The Tribunal **MACA.No.1469 OF 2013** 10 accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.16,000/-, at the rate of Rs.4,000/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.7,250/-, the compensation under the head loss of earning is re-fixed as Rs.43,500/- (7,250 x 6), resulting an additional compensation of **Rs.27,500/-** (43,500 – 16,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 39 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. 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.2,000/-, resulting an additional **MACA.No.1469 OF 2013** 11 compensation of **Rs.1,000/-** (2,000 – 1,000). 20. Towards bystander expenses the Tribunal awarded a sum of Rs.7,800/- (200 x 39). Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,500/-. The accident is of the year 2009 and the appellant had undergone inpatient treatment for 39 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 the head bystander's expense represents just and reasonable compensation, which requires no enhancement in this appeal. The compensation under the head extra nourishment is re-fixed as Rs.5,850/- (150 x 39), resulting an additional compensation of **Rs.3,350/-** (5,850 – 2,500). 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2009, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.4,25,000/-, covered by Ext.A13 series of medical bills. **MACA.No.1469 OF 2013** 12 Ayurvedic bills for Rs.14,195/- were not accepted by the Tribunal in the absence of the medical prescription and other documents. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 23. 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 the head pain and suffering is re-fixed as Rs.30,000/-, resulting an additional compensation of **Rs.5,000/-** (30,000 – 25,000). 24. 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 **MACA.No.1469 OF 2013** 13 [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. ## 25. 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. 26. In the instant case, as on the date of accident, the appellant was aged 22 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 **18** applied by the Tribunal is **MACA.No.1469 OF 2013** 14 correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.3,71,520/- (4,000 x 12 x 18 x 43/100). Since the monthly income of the appellant is re-fixed notionally as Rs.7,250/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 43%, the compensation under the head permanent disability is re-fixed as Rs.6,73,380/- (7,250 x 12 x 18 x 43/100), resulting an additional compensation of **Rs.3,01,860/-** (6,73,380 – 3,71,520). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.12,500/-. In Ext.C1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 43%. 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.45,000/-, resulting an additional compensation of **Rs.32,500/-** (45,000 – 12,500) under this head. In the result, the appellant will be entitled for payment of an **MACA.No.1469 OF 2013** 15 additional compensation of **Rs.3,71,710/-** (Rupees three lakhs seventy one thousand seven hundred and ten only) [27,500 + 1,000 + 3,350 + 500 + 5,000 + 3,01,860 + 32,500] 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, 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/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** jv