Rajesh Kumar v. ICICI Lombard General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941** ## **MACA.No.3504 OF 2015** **AGAINST THE AWARD IN OP(MV)No.346/2009 DATED 29-06-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT:** **RAJESH KUMAR AGED 34 YEARS S/O.BALAKRISHNAN, RESIDING AT KARUMBECHALIL HOUSE, P.O PAYAIMBRA, KUNNMANGALAM VIA KOZHIKODE.** **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENT/3RD RESPONDENT:** **ICICI LOMBARD GENERAL INSURANCE CO.LTD CITY PLAZA, 2ND FLOOR, YMCA CROSS ROAD, KOZHIKODE 673 001.** **R1 BY ADV. SRI.R.AJITH KUMAR 12884** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3504 OF 2015** 2 ## **JUDGMENT** Appellant is the claimant in O.P.(MV) No.346 of 2009 on the file of the Motor Accidents Claims Tribunal, Kozhikode, 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 09.08.2008, while he was travelling as a pillion rider on a motorcycle bearing registration No.KL-11/J-1607. At the place of accident, the motorcycle was hit by a bus bearing registration No.KL-57/6602, owned by the 1[st] respondent and driven by the 2[nd] respondent before the Tribunal, and insured with the respondent herein. 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.8 lakhs under various heads. 2. Before the Tribunal, the owner and driver of the bus remained absent and they were set ex-parte. The respondent herein, the insurer of the bus, and also the 5[th] respondent before the Tribunal, the insurer of the motorcycle, filed written **MACA.No.3504 OF 2015** 3 statements. The respondent herein filed written statement admitting insurance coverage of the bus involved in the accident; however denying negligence alleged against its driver. It was contended that the said vehicle was not having a valid permit and fitness certificate at the time of accident and that, the accident occurred due to the negligence of the rider of the motorcycle, who was arrayed as 4[th] respondent before the Tribunal. 3. Before the Tribunal, Exts.A1 to A7 documents were marked on the side of the appellant/claimant. A copy of the permit of the bus was marked as Ext.B1 and a copy of the insurance policy was marked as Ext.B2. The document marked as Ext.C1 is the disability certificate issued by the Medical Board. 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 its driver and that, the respondent herein, who is the insurer of that vehicle is liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.5,74,285/-, together with interest at the rate of 7% per annum from **MACA.No.3504 OF 2015** 4 20.03.2009 till the date of deposit, with a cost of Rs.2,500/- and directed the respondent herein to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant and the learned Standing Counsel appearing for the 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 mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must **MACA.No.3504 OF 2015** 5 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: ||Head of claims|Amount<br>claimed|Amount<br>awarded|Details| |---|---|---|---|---| |1|Transport to hospital|10,000|1,000|| |2|Extra Nourishment|10,000|1,500|| |3|Loss of earning|50,000|6,000|3000x2 months| |4|Treatment expenses|1,50,000|32,385|33,264-879| **MACA.No.3504 OF 2015** 6 |5|Bystanders expenses|Nil|3,200|100x32 days| |---|---|---|---|---| |6|Pain and Sufferings|40,000|10,000|| |7|Permanent disability|4,50,000|5,20,200|3000x12x17x85/100| ||Total||5,74,285/-|| 11. The accident is of the year 2008. At the time of accident, the appellant was aged 28 years. He claimed a monthly income of Rs.8,000/- as a coolie. The appellant has not chosen to mount the box to prove his monthly income. In the absence of any reliable materials, the Tribunal took the monthly income of the appellant as Rs.3,000/-. 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 **MACA.No.3504 OF 2015** 7 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. 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 **MACA.No.3504 OF 2015** 8 Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2008, 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.6,500/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A2 is the wound certificate and Ext.A3 is the treatment certificate. As borne out from medical records, in the accident, the appellant sustained AWC fracture D12 with paraplegia, fracture lateral wall (Rt) orbit, fracture maxillary wall (Rt) cervical spine straightening without neurology. Immediately after the accident, he was taken to Medical College Hospital, Kozhikode and C.T. Scan of head confirmed facial bone fractures. As per Ext.A3 treatment certificate he was admitted in the Medical College Hospital on 04.11.2008 and discharged on 06.12.2008 due to traumatic paraplegia. **MACA.No.3504 OF 2015** 9 16. Ext.C1 is the disability certificate issued by the medical board, certifying a permanent disability of 85%. The claimant was produced before the Tribunal and the Tribunal noticed that he was suffering from paraplegia. The Tribunal accepted the percentage of disability, as certified in Ext.C1 for the purpose of awarding compensation under various heads. 17. Towards loss of earning the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.3,000/- for a period of two months. Considering the nature of injuries sustained and the treatment the appellant had undergone, the period of two months fixed by the Tribunal for granting loss of earning is refixed as six months. Since the monthly income of the appellant is notionally fixed as Rs.6,500/-, the compensation under head loss of earning is refixed as Rs.39,000/- (6500 x 6), resulting an additional compensation of **Rs.33,000/-** (39,000 - 6,000). 18. 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, this Court deem it appropriate to refix the compensation under this head as Rs.3,000/-, resulting an additional compensation of **MACA.No.3504 OF 2015** 10 ## **Rs.2,000/-** (3,000 - 1,000). 19. Towards extra nourishment, the Tribunal awarded a sum of Rs.1,500/- and towards bystanders expense, the Tribunal awarded a sum of Rs.3,200/- (100 x 32). Considering the fact that the accident is of the year 2008, this Court deem it appropriate to refix the compensation towards extra nourishment as Rs.4,800/- (150 x 32), resulting an additional compensation of **Rs.3,300** /- (4,800 - 1,500). Similarly, towards bystanders expense, the compensation is refixed as Rs.6,400/- (200 x 32), resulting an additional compensation of **Rs.3,200** /- (6,400 - 3,200). 20. Towards treatment expenses, the Tribunal awarded a sum of Rs.32,385/- covered by Ext.A7 series of 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. 21. Towards pain and suffering, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the materials on record, this Court deem it appropriate to **MACA.No.3504 OF 2015** 11 refix the compensation under this head as Rs.50,000/-, resulting an additional compensation of **Rs.40,000/-** (50,000 - 10,000). 22. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11 th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe **MACA.No.3504 OF 2015** 12 pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a notional monthly income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control** **MACA.No.3504 OF 2015** 13 **(India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC** **683]** . Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. **MACA.No.3504 OF 2015** 14 The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 23. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** , to injured persons having higher percentage of functional disability. 24. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, the determination of 'just compensation' has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in **Sarla Verma [(2009) 6 SCC 121]** and it has been approved in **Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65]** . The age and income, as stated earlier, **MACA.No.3504 OF 2015** 15 have to be established by adducing evidence. The Tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the Tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. In **Pranay Sethi** the Apex Court approved the principle of 'standardisation' so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age. 25. In **Rajesh v. Rajbir Singh [(2013) 9 SCC 54]** , a ThreeJudge Bench of the Apex Court held that, in case of self-employed persons also, if the deceased victim is below 40 **MACA.No.3504 OF 2015** 16 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. In **Munna Lal Jain v. Vipin Kumar Sharma [(2015) 6 SCC 347]** another ThreeJudge Bench followed the principle stated in **Rajesh** . In **Pranay Sethi** , after expressing the opinion that the dicta laid down in **Reshma Kumari** being earlier in point of time would be a binding precedent and not the decision in **Rajesh** , the Constitution Bench observed that, in **Munna Lal Jain** , the Three-Judge Bench should have been guided by the principle stated in **Reshma Kumari** which has concurred with the view expressed in **Sarla Devi** or in case of disagreement, it should have been well advised to refer the case to a Larger Bench. 26. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench held that, while determining the income, an addition of **50%** of actual salary to the income of the deceased towards future prospects, where the deceased had a **permanent job** and was **below the age of 40 years** , should be made. The addition should be **30%** , if the age of the deceased was **between 40 to 50 years** . In case the deceased was between the age of **50 to 60 years** , the addition should be **15%** . Actual **MACA.No.3504 OF 2015** 17 salary should be read as actual salary less tax. The Apex Court held further that, in case the deceased was **self-employed** or on a **fixed salary** , an addition of **40%** of the established income should be the warrant where the deceased was **below the age of 40 years** . An addition of **25%** where the deceased was **between the age of 40 to 50 years** and **10%** where the deceased was between the age of **50 to 60 years** should be regarded as the necessary method of computation. The established income means the income minus the tax component. 27. In the instant case, at the time of accident, the appellant was aged 28 years. He is suffering from paraplegia. No reliable materials were placed before the Tribunal to show that, at the time of accident, the appellant had a permanent job. Therefore, he can only be treated as a self employed. In view of the law laid down by the Apex Court in **Pranay Sethi,** an addition of **40%** of the notional monthly income of the appellant, as re-fixed in this appeal considering the economic conditions prevailing at the time of accident and taking note of the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and in **Syed Sadiq** referred to supra, can be **MACA.No.3504 OF 2015** 18 made towards future prospects, since the appellant was aged **below 40 years** . 28. Therefore, for the purpose of re-fixing the compensation under the head loss of earning (disability compensation), **40%** of the monthly income of the appellant notionally re-fixed in this appeal as Rs.6,500/-, i.e., a sum of Rs.2,600/- (6,500 x 40/100) has to be added towards future prospects. In the result, the monthly income of the appellant, for the purpose of re-fixing the compensation under the head loss of dependency, is reckoned as Rs.9,100/- (6,500 + 2,600). 29. 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 **MACA.No.3504 OF 2015** 19 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. 30. 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. 31. In the instant case, as on the date of accident, the appellant was aged 28 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 correct and proper. 32. Towards compensation for permanent disability, the **MACA.No.3504 OF 2015** 20 Tribunal awarded a sum of Rs.5,20,200/- (3000 x 12 x 17 x 85/100). As already noticed, the Tribunal accepted the disability certified by the medical board in Ext.C1 disability certificate as 85%. At the time of accident, the appellant was aged 28 years. In view of the law laid down by the Apex Court in the decision referred to supra 40% of the notional monthly income can be taken into consideration towards future prospects, for the purpose of awarding compensation under various heads. Since this Court has already refixed the monthly income of the appellant notionally as Rs.6,500/-, 40% of the said amount, i.e., Rs.2,600/- has to be added towards future prospects, and therefore the multiplicand for the purpose of assessment of permanent disability will be Rs.9,100/- (6500+2600). In the result, the compensation under the head 'permanent disability is refixed as Rs.15,77,940/- (9,100 x 12 x 17 x 85/100), resulting an additional compensation of **Rs.10,57,740/-** ( 15,77,940 – 5,20,200). 33. As can be seen from Ext.C1 disability certificate, the appellant has sustained 85% permanent disability. In the impugned award, the Tribunal noticed that the appellant is **MACA.No.3504 OF 2015** 21 suffering from paraplegia. Considering the nature of injuries sustained and the disability that had arisen, as borne out from the medical records, This Court deem it appropriate to grant a sum of Rs. **1,00,000/-** as compensation for loss of amenities. 34. In the result, the appellant will be entitled for an enhanced compensation of Rs. **12,39,240/-** (Rupees twelve lakhs thirty nine thousand two hundred and forty only) (33,000 + 2,000 + 3,300 + 3,200 + 40,000 + 10,57,740 + 1,00,000) in this appeal, which will carry interest @ 8% per annum, from the date of petition till the date of realisation. By order dated 25.9.2019 in C.M.Application No.4213 of 2015, the delay of 1871 days in filing this appeal was condoned on condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said period of delay. In view of the above order, the appellant will not be entitled for interest for the period of delay. The respondent insurer 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 **MACA.No.3504 OF 2015** 22 towards Balance Court Fee and Legal Benefit Fund. The disbursement of the amount to the appellant 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. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN JUDGE** jv