Premadasan Kurumberparambil v. T.H. Bhadusha and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941** ## **MACA.No.1013 OF 2010** **AGAINST THE AWARD IN OPMV 2068/2003 DATED 30-07-2009 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR** ## **APPELLANT/S:** **PREMADASAN KURUMBERPARAMBIL HOUSE, PAZHUVIL WEST P.O., THRISSUR DISTRICT.** **BY ADV. SRI.T.C.SURESH MENON** ## **RESPONDENT/S:** |**1**|**T.H.BHADUSHA AND OTHERS**| |---|---| ||**THIRUTHEKATTIL HOUSE, VADAKKUMURI,,**| ||**PERINGOTTUKARA P.O. THRISSUR DISTRICT.**| |**2**|**SINESH T. SO. SEETHALAKSHMI**| ||**THOTTOORATHIL HOUSE, PADIYAM,, MUTTICHUR,**| ||**THRISSUR DISTRICT.**| |**3**|**THE NATIONAL INSURANCE CO.LTD.**| ||**BRANCH OFFICE AMBIKA ARCADE,, M.G.ROAD,**| ||**THRISSUR.**| |**4**|**SURESH T.SO. MADHAVAN THATHRATHIL**| ||**HOUSE, MUTTICHUR, THRISSUR DISTRICT.**| ||**R1 BY ADV. SRI.RAJAN P.KALIYATH**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 1013 of 2010 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2068 of 2003 on the file of the Motor Accidents Claims Tribunal, Thrissur, 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 12.12.2002, while he was travelling in a bus bearing registration No.KL-8/D-1717, owned by the 1[st] respondent, insured with the 3[rd] respondent and driven by the additional 4[th] respondent. At the place of accident, while negotiating a curve, the left side of the bus hit against an electric post. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, under various heads. 2. Before the Tribunal, respondents 1, 2 and 4 remained absent and they were set ex parte. The 3[rd] respondent/insurer filed written statement admitting the -3- MACA. No. 1013 of 2010 insurance coverage of the bus involved in the accident; however, denying the negligence alleged against its driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the vehicle was marked as Ext.B1. 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 bus by the 4[th] respondent driver. 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.97,000/-, together with interest at the rate of 7% per annum from the date of petition till realisation, with a cost of Rs.1,500/-,and the insurer was -4- MACA. No. 1013 of 2010 directed to satisfy the award. 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 3[rd] respondent/insurer. 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 -5- MACA. No. 1013 of 2010 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. 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; MACA. No. 1013 of 2010 -6- |Loss of earnings|19,200/-|7,500/-| |---|---|---| |Transportation|1,000/-|2,000/-| |Extra nourishment|1,000/-|500/-| |Damage to articles|800/-|500/-| |Bystander's expenses|nil|1,000/-| |Medical expenses|45,000|24,500| |Pain & Suffering|25,000/-|15,000/-| |Permanent disability|50,000/-|36,000/-| |Loss of earning power|25,000/-|nil| |Loss of amenities|15,000/-|10,000/-| |||---------------------| |**Total**||**97,000/-**| ## **===========** 11. The accident occurred on 12.12.2002. At the time of accident, the appellant was aged 40 years. The appellant claimed a monthly income of Rs.3,200/- as a goldsmith. 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.2,500/-, for the purpose of assessing compensation under various heads. 12. In **Ramachandrappa v. Manager, Royal** -7- MACA. No. 1013 of 2010 ## **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 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. -8- MACA. No. 1013 of 2010 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 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. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2002, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income -9- MACA. No. 1013 of 2010 of the deceased, claimed as Rs.3,200/- in the claim petition, cannot be said to be on the higher side, which is accepted as his notional monthly income, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A5 is the wound certificate and Ext.A6 is the discharge summary. As borne out from the medical records, in the accident, the appellant sustained fracture shaft lower 3[rd] (L) humerus with radial nerve palsy, chip fracture head of (L) radius, crack fracture medial condyle (L) humerus and L.W. upper 3[rd] (L) forearm (bone deep). He had undergone inpatient treatment for a total period of 18 days in two different spells. Exts.A8 and A8(a) are medical bills for a total sum of Rs.24,500/-. 16. In Ext.A7 is the disability certificate, issued by Dr.P.J.Jacob, Assistant Professor, Department of Orthopaedics, Medical College Hospital, Thrissur, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 12%. Since the medical certificate was not proved by examining the doctor concerned, the -10- MACA. No. 1013 of 2010 Tribunal fixed the percentage of disability as 8%. During the pendency of this appeal by the order dated 24.10.2019, the appellant was referred to the Medical Board at the Medical college Hospital, Thrissur, for the purpose of assessing his permanent disability. The report of the Disability Assessment Board, at Government Medical College Hospital, Thrissur dated 06.11.2019 is placed on record along with a covering letter dated 14.11.2019 of the Superintendent, Government Medical College Hospital, who is the Chairman of that Medical Board. As per the said disability certificate, the appellant is having a whole body permanent disability of 5%, which is calculated using the combination formula. The disability assessed in the disability certificate dated 06.11.2019 is accepted for the purpose of re-fixing compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.7,500/-, at the rate of Rs.2,500/- 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 -11- MACA. No. 1013 of 2010 by the Tribunal for granting loss of earning is re-fixed as 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,200/-, the compensation under the head loss of earning is re-fixed as Rs.16,000/- (3,200 x 5), resulting an additional compensation of **Rs.8,500/-** (16,000 – 7,500). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 18 days in two different spells. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of treatment undergone, the compensation under this head is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs.1,000/-** (3,000 – 2,000). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.1,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2002 and the appellant had undergone inpatient treatment for 18 days. Considering the nature of injuries sustained and the -12- MACA. No. 1013 of 2010 treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.2,700/- (150 x 18), resulting an additional compensation of **Rs.1,700/-** (2,700 – 1,000). The compensation under the head extra nourishment is re-fixed as Rs.1,800/- (100 x 18), resulting an additional compensation of **Rs.1,300/-** (1,800 - 500). 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.5,00/-. Considering the fact that the accident is of the year 2002, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 – 500). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.24,500/-, covered by Ext.A8 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 this appeal. 22. As compensation towards pain and suffering, the -13- MACA. No. 1013 of 2010 Tribunal awarded a sum of Rs.15,000/-. 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.20,000/-, resulting an additional compensation of **Rs.5,000/-** (20,000 – 15,000). 23. 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 26 to 30 years, multiplier -14- MACA. No. 1013 of 2010 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 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 40 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 **15** applied by the Tribunal is correct and proper. 26. Towards compensation for permanent disability, the -15- MACA. No. 1013 of 2010 Tribunal awarded a sum of Rs.36,000/- (2,500 x 12 x 15 x 8/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,200/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of permanent disability as 5%, the compensation under the head permanent disability is re-fixed as Rs.28,800/- (3,200 x 12 x 15 x 5/100), resulting an **excess payment** of **Rs.14,400/-** ( 36,000 – 28,800), which has to be deducted from the additional compensation granted in this appeal. 27. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the permanent disability that has been assessed by the Medical Board, 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. 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.3,350/-** (Rupees three thousand three hundred and fifty only) [(8,500 -16- MACA. No. 1013 of 2010 + 1,000 + 1,700+ +1,300 + 250 + 5,000) – 14,400] 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. 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.D162475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. **Sd/ANIL K.NARENDRAN JUDGE** das