Roy v. A. Sasikumar, Sundaran K.V. and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941** ## **MACA.No.3798 OF 2018(B)** **AGAINST THE AWARD IN OP(MV)NO.655/2008 DATED 30-07-2016 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANTS/PETITIONERS:** **ROY AGED 54 YEARS S/O. ANTONY, KUNNAMKUDATH HOUSE, KUIZHAKKUMMURI P.O., PERINGOTTUKARA, THRIPRAYAR, THRISSUR DISTRICT.** **BY ADVS. SRI.SANTHOSH P.PODUVAL SMT.R.RAJITHA SRI.R.N.SANDEEP** ## **RESPONDENTS/RESPONDENTS :** **1 A.SASIKUMAR S/O. KRISHNAN NAIR, ELLATH HOUSE, P.O.VADAKKUMMURI, THRIPRAYAR, VALAPPAD, THRISSUR - 680 570.** **2 SUNDARAN K.V., S/O. VELAYUDHAN, KALAKODUVATH HOUSE, THRIPRAYAR P.O., VALAPPAD, THRISSUR - 680 567.** **3 THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, NATTIKA, THRIPRAYAR BEACH, THRISSUR DISTRICT - 680 566.** **R1 BY ADV. SRI.P.K.MANOMOHANAN R3 BY ADV. SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.3798 of 2018(B) 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.655 of 2008 on the file of the Additional 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 16.02.2008, while he was travelling as pillion rider on a motorcycle bearing registration No.KL-8/H-3425. At the place of accident, the motorcycle was hit by a goods autorickshaw bearing registration No.KL-8/S-2305 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,78,900/- under various heads, which was limited to Rs.1,50,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver did not file any written MACA No.3798 of 2018(B) 3 ## statement. 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the goods autorickshaw involved in the accident; however, denying the negligence alleged against the 2[nd] respondent driver. The insurer contended that the accident occurred due to the negligence on the part of the rider of the motorcycle. The insurer disputed the liability to pay compensation, by contending that the 1[st] respondent owner violated the policy conditions by permitting the 2[nd] respondent to drive the goods autorickshaw without a valid and effective driving licence. They also disputed the age, occupation, monthly income, injuries, etc. of the claimant. It was contended that the compensation claimed is exorbitant. 4. Before the Tribunal, the claim petition was tried along with the connected matters. Exts.A1 to A17 were marked on the side of the claimants. On the side of the respondents, Exts.B1 and B2 were marked. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the MACA No.3798 of 2018(B) 4 accident occurred due to the rash and negligent driving of autorickshaw by the 2[nd] respondent driver. The driving licence of the 2[nd] respondent was placed on record as Ext.A8/Ext.B2. Since insurance coverage of the said vehicle was not in dispute and the contention as to violation of the conditions of policy was not substantiated, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,23,160/-, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 25.04.2008 till date of deposit, with proportionate cost, and the insurer was directed to satisfy the award. 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, the learned counsel for the 2[nd] respondent driver and also the learned Standing Counsel for the 3[rd] respondent insurer. 8. The issue that arises for consideration in this MACA No.3798 of 2018(B) 5 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 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 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 MACA No.3798 of 2018(B) 6 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 nonviolation of the principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||Head of claim|Amount claimed<br>(in Rupees)|Amount<br>awarded (in<br>Rupees)| |---|---|---|---| |1|Loss of earning|13,500/-|12,000/-| |2|Transportation to hospital|3,000/-|2,000/-| |3|Extra nourishment|3,000/-|1,000/-| |4|Damages to clothing &<br>articles|1,000/-|1,000/-| |5|Medical expenses|20,000/-|20,000/-| |6|Bystanders expenses|1,400/-|1,400/-| |7|Future treatment expenses|5,000/-|2,000/-| |8|Personal attendance|2,000/-|| |9|Compensation for pain and<br>suffering|10,000/-|10,000/-| |1<br>0|Continuing or permanent<br>disability|60,000/-|53,760/-| |1<br>1|Compensation for loss of<br>earning power|40,000/-|| MACA No.3798 of 2018(B) 7 |1<br>2|Compensation for loss of<br>future prospects|10,000/-|10,000/-| |---|---|---|---| |1<br>3|Compensation for loss of<br>amenities|10,000/-|10,000/-| ||Total<br>Limited to/Rounded to|**1,78,000/-**<br>**1,50,000/-**|**1,23,160/-**| 12. The accident occurred on 16.02.2008. At the time of accident, the appellant was aged 44 years. The appellant claimed a monthly income of Rs.4,500/- as fuel filling worker in a Petrol Pump at Thriprayar. 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.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 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 MACA No.3798 of 2018(B) 8 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 that, a labourer in an unorganised MACA No.3798 of 2018(B) 9 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 Rs.6,500/- per month. 15. 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, the monthly income of Rs.4,500/- claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A14 is a copy of the accident register-cum-wound certificate and Ext.A15 is the discharge summary. As per medical records, in the accident, the appellant sustained fracture of 4[th] rib and traumatic SAH, contusion on right chest, abrasion on MACA No.3798 of 2018(B) 10 right leg and right foot and he complained of shoulder pain. The appellant had undergone inpatient treatment for a period of 7 days. Ext.A17 are the series of medical bills for a sum of Rs.19,920/- 17. Ext.A16 is the disability certificate in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. The disabilities noted in Ext.A16 are multiple wound scars over the right knee and ankle; deformity over the right ankle; range of dorsiflexion and plantar flexion of the right ankle decreased than the left side; tenderness and paraspinal muscle spasm over the cervical spine; cevicobrachial neuralgia on the right upper limb; range of movements of the cervical spine decreased than the normal; chest pain and breathing difficulty over the right side; difficulty in squatting, climbing stairs and sitting on the floor; and radiologically malunited lateral malleolus fracture right, fracture 4[th] rib on right and cervical spine injury. The appellant has not chosen to prove Ext.A16 disability certificate by examining the doctor concerned. In the absence of any proof, instead of discarding the MACA No.3798 of 2018(B) 11 assessment of disability in Ext.A16 in toto, the Tribunal took the percentage of partial disability as 8%. The said procedure adopted by the Tribunal, since the appellant failed to prove Ext.A16 disability certificate, cannot be said to be arbitrary or illegal, warranting an interference in this appeal. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.4,000/- 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 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.4,500/-, the compensation under the head loss of earning is re-fixed as Rs.27,000/- (4,500 x 6), resulting an additional compensation of **Rs.15,000/-** (27,000 – 12,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 7 days. The accident is of the year 2008. MACA No.3798 of 2018(B) 12 Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs.1,000/-** (3,000 – 2,000). 20. Towards bystander expenses, the Tribunal awarded a sum of Rs.1,400/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2008 and the appellant had undergone inpatient treatment for 7 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded by the Tribunal under these heads cannot be said to be on the lower side, which requires no enhancement in this appeal. 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. The accident is of the year 2008. Therefore, the compensation awarded by the Tribunal under this head represents just and MACA No.3798 of 2018(B) 13 reasonable compensation, which requires no enhancement in this appeal. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.20,000/-, covered by Ext.A17 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.10,000/-. 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.20,000/-** (30,000 – 10,000) under this head. 24. Towards future treatment expenses, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of disabilities noted in Ext.A16 disability certificate and also malunited lateral malleolus fracture right noted in the said certificate, this Court deem it appropriate to MACA No.3798 of 2018(B) 14 re-fix the compensation under this head as Rs.15,000/-, resulting an additional compensation of **Rs.13,000/-** (15,000 – 2,000), which will carry no interest. 25. 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, i.e., multiplier MACA No.3798 of 2018(B) 15 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. 26. 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. 27. In the instant case, as on the date of accident, the appellant was aged 44 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 **14** applied by the Tribunal is correct and proper. 28. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.53,760/(4,000 x 12 x 14 x 8/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,500/-, applying the multiplier of 14 applicable to the age group of the appellant and the percentage of permanent MACA No.3798 of 2018(B) 16 disability as 8%, the compensation under the head permanent disability is re-fixed as Rs.60,480/- (4,500 x 12 x 14 x 8/100), resulting an additional compensation of **Rs.6,720/-** (60,480 – 53,760). 29. Towards loss of amenities, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and 8% permanent disability on account of those injuries, as fixed by the Tribunal, 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. 30. Towards compensation for loss of future prospects, the Tribunal awarded a sum of Rs.10,000/-. 31. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th 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 MACA No.3798 of 2018(B) 17 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 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 MACA No.3798 of 2018(B) 18 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 (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 MACA No.3798 of 2018(B) 19 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. 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]** . 32. In **Syed Sadiq v. Divisional Manager,** MACA No.3798 of 2018(B) 20 **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]** . A reading of the said decision would show that the injured before the Apex Court were having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity, and it was in such circumstances that the Apex Court granted them disability compensation by adding future prospects. 33. Considering the nature of injuries sustained and 8% permanent disability arising therefrom, the appellant can not be treated as an injured having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity. Therefore, the appellant is entitled for grant of compensation under the head permanent disability, adding future prospects to his MACA No.3798 of 2018(B) 21 notional monthly income, or a lump sum compensation under the head loss of future prospects. Therefore, the **excess payment** of **Rs.10,000/-** under the head loss of future prospects has to be deducted from the additional compensation granted in this appeal. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.45,720/-** (Rupees forty five thousand seven hundred and twenty only) [(15,000 + 1,000 + 20,000 + 13,000 + 6,720) – 10,000] in this appeal, which will carry interest at the rate of **8%** per annum, excluding Rs.13,000/granted under the head future medical expenses, from the date of petition till realisation, excluding the period of delay of 721 days in filing this appeal, which was condoned by the order dated 03.03.2020 in C.M.Appln.No.1 of 2018, subject to the condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said amount for the period of delay. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two MACA No.3798 of 2018(B) 22 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 in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant to 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. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV