Rajan A.K. v. Khalid Haji and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 25TH DAY OF OCTOBER 2019 / 3RD KARTHIKA, 1941** ## **MACA.No.539 OF 2008** **AGAINST THE AWARD IN OPMV 2149/2002 DATED 19-12-2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR.** ## **APPELLANT:** **RAJAN.A.K., S/O.LATE KORAN, RESIDING AT ATHIKARATH HOUSE, KATTAKAMBAL P.O., THRISSUR DISTRICT.** **BY ADVS. SRI.P.S.APPU SRI.JIBU P THOMAS SRI.T.C.SURESH MENON** ## **RESPONDENTS:** |**1**|**KHALID HAJI,**| |---|---| ||**S/O.ABDULKHADER HAJI,**| ||**RESIDING AT KALLIYATH HOUSE,**| ||**PARAPPANANGADY P.O.**| |**2**|**ABDUL KALAM,**| ||**S/O HAMSA,**| ||**RESIDING AT THACHAPARAMBIL HOUSE,**| ||**KOTTUKKAKKADAVU, THIRUR,**| ||**MALAPPURAM DISTRICT.**| |**3**|**THE NEW INDIA ASSURANCE COMPANY LIMITED,**| ||**TIRUR, MALAPPURAM DISTICT.**| |**4**|**KADEEJA,**| ||**W/O.P.T.ALAVI,**| ||**RESIDING AT NIGAS MANZIL,**| ||**PALATHOTTATHIL HOUSE,**| ||**P.O. BALUSSERY, B.P.ANGADI.**| **MACA.No.539 OF 2008** -2- |**5**|**SURESH KUMAR,**| |---|---| ||**RESIDING AT MYLIPPATTU HOUSE,**| ||**IRINGAVOOR P.O., MANEYANNOOR.**| |**6**|**THE UNITED INDIA INSURANCE COMPANY LIMITED,**| ||**TIRUR.**| ||**R3 BY ADV. SRI.P.G.GANAPPAN**| ||**R6 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.539 OF 2008** -3- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.2149 of 2002 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 29.12.2001, while he was travelling in a bus bearing registration No.KL-10/F-1809, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the said bus was hit by a lorry bearing registration No.KL-10/A-7053, owned by the 4[th] respondent, driven by the 5[th] respondent and insured with the 6[th] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the drivers of both vehicles, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/-, under various heads. 2. Before the Tribunal, the respondents 1 and 2 remained absent and they were set ex-parte. Though the 4[th] respondent entered appearance, no written statement was **MACA.No.539 OF 2008** -4- filed. Respondents 3 and 6 filed separate written statement. The insurance coverage of the respective vehicles was admitted, however, denying the negligence alleged against the respective drivers. 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 A8 were marked on the side of the appellant/claimant. A copy of the insurance certificate was marked as Ext.B1 on the side of the respondents. Ext.A7 disability certificate was proved through PW1. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the negligence of the 2[nd] respondent who was the driver of the bus in which the appellant was travelling and also the 5[th] respondent driver of the lorry. The 3[rd] respondent insurer of the bus and the 6[th] respondent insurer of the lorry were held liable to indemnify the respective insured and the liability among the insurers was apportioned in the ratio 50:50. Under various heads, the Tribunal awarded a total **MACA.No.539 OF 2008** -5- compensation of Rs.98,190/-, together with interest at the rate of 7% from 17.08.2002 till date of payment with proportionate cost and directed the respective insurers to deposit the amount in equal proportion. 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 respective Standing Counsels for respondents 3 and 6 insurers. Since insurance coverage of the vehicles are admitted by respondents 3 to 6, service of notice on respondents 1 and 2 was dispensed with. 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 **MACA.No.539 OF 2008** -6- 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. 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 **MACA.No.539 OF 2008** -7- equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||Head of claim|Amount allowed| |---|---|---| |1|Loss of earning|12,000/-| |2|Expense for transportation|500/-| |3|Expense for extra nourishment|1,000/-| |4|Damages to clothing|500/-| |5|Expenses for treatment|33,250/-| |6|Expense for bystander|700/-| |7|Compensation for pain and suffering|12,000/-| |8|Compensation for loss of amenities|8,000/-| |9|Compensation for permanent disability|30,240/-| ||**Total**|**98,190/-**| 11. The accident occurred on 29.12.2001. At the time of accident, the appellant was aged 26 years. He claimed a monthly income of Rs.4,500/- as a boiler operator. In order to prove monthly income, the appellant produced Ext.A6 salary certificate. The appellant has not chosen to prove that certificate by examining the person concerned. The appellant has also not chosen to mount the box. No documents were produced to show that he is having the requisite qualification to work as a boiler operator. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as **MACA.No.539 OF 2008** -8- Rs.2,000/-, for the purpose of assessing compensation under various heads. 12. 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 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 **MACA.No.539 OF 2008** -9- realities prevailing at the relevant point of time. 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. In the instant case, the accident occurred on 29.12.2001. At the time of accident, the appellant was aged 26 years. He claimed a monthly income of Rs.4,500/- as a boiler operator. **MACA.No.539 OF 2008** -10- 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2001, 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 monthly income of the appellant notionally as Rs.3,000/-, for the purpose of assessing compensation under different heads. 16. The document marked as Ext.A2 is the wound certificate; Ext.A5 is the discharge card; and Ext.A7 is the treatment cum disability certificate. As per medical records, the appellant had sustained fracture on shaft humerus right, compound fracture olecranon right fracture radial head right. The appellant had undergone inpatient treatment at Royal Hospital, Kunnamkulam from 29.12.2002 to 05.01.2002. 17. In Ext.A7 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 7%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under different heads. **MACA.No.539 OF 2008** -11- 18. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.2,000/- 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 fixed notionally as Rs.3,000/-, the compensation under the head loss of earning is re-fixed as Rs.18,000/- (3000 x 6), resulting an additional compensation of **Rs.6,000/-** (18,000 - 12,000). 19. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.1,000/-** (1,500 - 500). 20. Towards extra nourishment, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained and the inpatient treatment the appellant had undergone for 7 days, as borne out from medical records, the compensation **MACA.No.539 OF 2008** -12- awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. The Tribunal awarded no compensation under the head bystander expenses. The appellant is granted a sum of **Rs.1,050/-** (150 x 7) as compensation under the head bystander expenses. 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 2001, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.33,250/-, 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. Considering the nature of injuries sustained and the treatment the appellant had **MACA.No.539 OF 2008** -13- undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head is refixed as Rs.15,000/-, resulting an additional compensation of **Rs.3,000/-** (15,000 - 12,000). 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 [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, **MACA.No.539 OF 2008** -14- 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 26 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 not correct and the proper multiplier to be applied is **17** . 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.30,240/- (2,000 x 12 x 18 x 7/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,000/-, applying the multiplier of 17 and percentage of disability as 7%, the compensation under this head is re-fixed as Rs.42,840/- (3,000 x 12 x 17 x 7/100), **MACA.No.539 OF 2008** -15- resulting an additional compensation of **Rs.12,600/-** (42,840 - 30,240). 28. Towards loss of amenities, the Tribunal awarded a sum of Rs.8,000/-. Considering the nature of injuries sustained and the disability that had arisen out of those injuries, as borne out from Ext.A7 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.2,000/-** (10,000 - 8,000). 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.25,900/-** (Rupees twenty five thousand and nine hundred only) [6,000 + 1,000 + 1,050, + 250 + 3,000 + 12,600 + 2,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] and 6[th] respondent insurers shall satisfy the additional compensation granted in this appeal, together with interest, in equal proportion, 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 **MACA.No.539 OF 2008** -16- Fee and Legal Benefit Fund. The disbursement of the amount to the appellant 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** bpr