Rafeeq v. Rajasekharan and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941** ## **MACA.No.162 OF 2011** **AGAINST THE AWARD IN OP(MV) No.477/2003 DATED 30-05-2009 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** **APPELLANT/S:** **RAFEEQ, THALIKULAM VEETTIL, PALAPPETTY VALAVU, VALAPPAD P.O., THRISSUR DISTRICT BY ADV. SRI.T.C.SURESH MENON** ## **RESPONDENT/S:** **1 RAJASEKHARAN, S/O. RAGHAVA WARRIER THIRUVANKIDAM WARRIER VEETTIL,, THIRUVANKIDAM DESOM, GURUVAYOOR P.O. 2 THE ORIENTAL INSURANCE CO.LTD. U BROTHERS BUILDING, GURUVAYOOR ROAD, KUNNAMKULAM-680503.** **R1 BY ADV. SRI.N.AJITH R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR. R1 BY ADV. SMT.SADHANA KUMARI ESWARI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 162 of 2011 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.477 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 21.08.2002, while he was travelling in a Maruti Omni van bearing registration No.MH-02/B-875. At the place of accident, the said vehicle was hit by a car bearing registration No.TN58/C-7159 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of Omni van by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cumdriver of the car remained absent and he was set ex parte. The 2[nd] respondent insurer filed written statement admitting the insurance coverage of the car involved in the accident; -3- MACA. No. 162 of 2011 however, denying the negligence alleged against its driver. The insurer contended that the accident occurred due to the rash and negligent driving of Omni van by the appellant, who was not having a valid driving licence, at the time of the accident. Police registered Crime No.414 of 2002 against the appellant under Sections 279, 337 and 338 IPC. Thereafter, the Police charge sheeted the 1[st] respondent driver of the car. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A10 were marked on the side of the appellant/claimant. On the side of the respondents, Exts.B1 to B7 were marked. 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 car by its driver and also the rash and negligent driving of Omni van by the appellant. The Tribunal noticed that the Police laid A -4- MACA. No. 162 of 2011 charge and B charge against the appellant and the 1[st] respondent. Ext.A6 is B charge against the 1[st] respondent and Ext.B2 is the A charge against the appellant. Under various heads, the Tribunal awarded a total compensation of Rs.2,78,400/- and found the appellant entitled for a sum of Rs.1,39,200/- (50% of the compensation) together with interest at the rate of 7% per annum from the date of petition till realisation, with cost of Rs.4,000/-, and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal and challenging the finding of the Tribunal on the question of contributory negligence, 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 2[nd] respondent/insurer. 7. During the course of arguments, the learned counsel for the appellant would submit that the appellant does not wish to press the challenge made in this appeal against -5- MACA. No. 162 of 2011 the finding of contributory negligence. 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 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 -6- MACA. No. 162 of 2011 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; |Loss of earnings|15,000| |---|---| |Transport|10,401| |Extra nourishment|1,000| |Damage to articles|500| |Medical expenses|75,000| |Bystander's expenses|4,500| |Pain and suffering|30,000| |Permanent disability<br>|1,02,000| |Loss of amenities|40,000| MACA. No. 162 of 2011 -7- **==> picture [224 x 33] intentionally omitted <==** 12. The accident occurred on 21.08.2002. At the time of accident, the appellant was aged 24 years. The appellant claimed a monthly income of Rs.5,000/- by conducting a workshop. 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. 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 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 -8- MACA. No. 162 of 2011 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 that, a labourer in an unorganised sector doing his own business cannot be expected to produce -9- MACA. No. 162 of 2011 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 2002, 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.3,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A3 is the wound certificate and Ext.A7 series are discharge summaries. As per medical records, in the accident, the appellant sustained wound on left leg 3x1x1cm between 1[st] and 2[nd] toes right foot, -10- MACA. No. 162 of 2011 4x2x1cm contusion right leg and right thigh. X-ray showed fracture femur of right leg and fracture on right patella, compound fracture dislocation and 2[nd] and 3[rd] metatarsal phalangial joints of right leg, fracture both bones left leg. The appellant had undergone inpatient treatment for a total period of 29 days. Exts.A9 and A9(a) series of medical bills are for a sum of Rs.1,72,213/-. The Tribunal, after considering the objections raised by the 3[rd] respondent insurer, awarded Rs.75,000/- towards medical expenses. 17. In Ext.A8 disability certificate, an individual doctor assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 20%. As evident from Ext.A8 disability certificate, there is malunited fracture on tibia left with fibulectomy, 2cm of fibula removed and thereby shortening in left lower limb, stiffness on left ankle joint, malunited fracture of femur right and stiffness of right hip joint, united fracture on patella right with patella femoral crepitus and arthritis in right knee joint. The Tribunal accepted the percentage of permanent disability assessed in Ext.A8 -11- MACA. No. 162 of 2011 certificate, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.15,000/-, at the rate of Rs.2,500/- for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 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.3,500/-, the compensation under the head loss of earning is re-fixed as Rs.21,000/- (3,500 x 6), resulting an additional compensation of **Rs.6,000/-** (21,000 – 15,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 29 days. The accident is of the year 2002. Towards transportation to hospital, the Tribunal awarded a sum of Rs.10,401/-. 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 -12- MACA. No. 162 of 2011 under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards bystander expenses the Tribunal awarded a sum of Rs.4,500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2002 and the appellant had undergone inpatient treatment for 29 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 expenses represents just and reasonable compensation, which requires no enhancement in this appeal. The compensation under the head extra nourishment is re-fixed as Rs.2,900/- (100 x 29), resulting an additional compensation of **Rs.1,900/-** (2,900 – 1,000). 21. Towards damage to articles, the Tribunal awarded a sum of Rs.500/-. 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 -13- MACA. No. 162 of 2011 **Rs.250/-** (750 – 500). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.75,000/-, covered by Ext.A9 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. 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. 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** -14- MACA. No. 162 of 2011 **[(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. ## 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 -15- MACA. No. 162 of 2011 paragraph 42 of the said judgment. 26. In the instant case, as on the date of accident, the appellant was aged 24 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 17 applied by the Tribunal is not correct and the proper multiplier to be applied is **18** . 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,02,000/- (2,500 x 12 x 17 x 20/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 20%, the compensation under the head permanent disability is re-fixed as Rs.1,51,200/- (3,500 x 12 x 18 x 20/100), resulting an additional compensation of **Rs.49,200/-** ( 1,51,200 – 1,02,000). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.40,000/-. Considering the nature of injuries -16- MACA. No. 162 of 2011 sustained and the disabilities noted in Ext.A8, 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. 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.28,675/-** (Rupees twenty eight thousand six hundred and seventy five only) [(6,000 + 1,900 + 250 + 49,200) x 1/2] 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 additional compensation to the appellant/claimant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further -17- MACA. No. 162 of 2011 in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall provide his bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. All pending interlocutory applications in this appeal are closed. Sd/- **ANIL K.NARENDRAN JUDGE** ## **das**