S. Suraj v. P.A. Nazar, Mohammed Raffi (deleted) and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** ## **MACA.No.2234 OF 2007** **AGAINST THE AWARD IN OP(MV) 993/1999 DATED 08-09-2005 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT:** **S.SURAJ, S/O.SOMANATHAN, PARAPPIL HOUSE, PUNNAPRA, ALAPPUZHA. BY ADV. SRI.S.SHANAVAS KHAN** ## **RESPONDENTS:** **1 P.A.NAZAR, S/O.ABDUL RAHMAN, PATHIYASSERIL HOUSE, MATHILAKAM PANCHAYATH, WARD-6, KODUNGALLOOR TALUK. 2 MOHAMMED RAFFI(DELETED) S/O.HAMSA, KOLLOOPPARAMBIL HOUSE, MATHILAKOM PANCHAYATH, WARD NO.3, PAPPINY VATTOM VILLAGE. (R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 23/7/19 IN IA NO.2/19). 3 THE UNITED INDIA INSURANCE CO. LTD. IRINGALAKUDA BRANCH (REPRESENTED BY ITS, DIVISIONAL MANAGER, DIVISIONAL OFFICE,, SARADA COMPLEX, MULLACKAL ALAPPUZHA)** **BY ADV. SRI.K.PADMANABHAN ADV. SRI.JOHN JOSEPH VETTIKAD ADV. SRI.A.D.RAVINDRA PRASAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2234 OF 2007 ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.993 of 1999 on the file of the Motor Accident Claims Tribunal, Alappuzha, which is 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 05.04.1999, while he was walking on the side of KollamAlappuzha NH road. At the place of accident, he was knocked down by a car bearing registration No.KBR-3177, owned by the 1[st] respondent, driven by the 2[nd] respondent, and insured with the 3[rd] respondent insurer. As a result of the accident, the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by its driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.4,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner and 2[nd] respondent driver remained absent and they were set exparte. The 3[rd] respondent insurer filed written statement, denying the negligence attributed on the driver of the motor car. The insurer contended that the accident occurred due to 3 MACA No.2234 OF 2007 the negligence of the appellant/claimant and that, the compensation claimed is highly excessive. The insurer admitted the insurance coverage of the car involved in the accident. 3. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant and he was examined as PW1. The doctor, who has issued Ext.P6 disability certificate, was examined as PW2. 4. After considering the pleadings and materials on record, the Tribunal arrived at a finding that the accident occurred due to rash and negligent driving of the offending vehicle by its driver. Since insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,29,200/- with interest at the rate of 6% per annum from the date of petition, i.e., 27.07.1999, till the date of realisation, with a cost of Rs.1,300/-. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 4 MACA No.2234 OF 2007 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 different 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 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 5 MACA No.2234 OF 2007 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. The accident occurred on 05.04.1999. The appellant was aged 25 years. The appellant claimed that, at the time of accident, he was working as a Sales Manager and was earning a monthly income of Rs.4,500/-. The document marked as Ext.A12 is the certificate issued by the proprietor of Matha Baking Industries, Punnapra. The employer was not examined to prove Ext.A12 certificate. Therefore, the Tribunal fixed the monthly income of the appellant notionally at Rs.2,500/-. 11. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** 6 MACA No.2234 OF 2007 **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. 12. 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 7 MACA No.2234 OF 2007 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. 13. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 1999, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, it cannot be said that the notional fixation of monthly income as Rs.2,500/- by the Tribunal is on the lower side. Therefore, no interference is warranted on the fixation of notional monthly income by the Tribunal. 14. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; 8 MACA No.2234 OF 2007 |SI.<br>No.|The compensation claimed<br>under different heads|Amount<br>allowed|Basis/vital<br>details in a<br>nutshell| |---|---|---|---| |1|Loss of earning|15,000/-|2500x6| |2|Medical treatment charges|25,000/-|| |3|Transportation to Hospital|1,500/-|| |4|Extra nourishment|1,500/-|| |5|Damage to clothing|500/-|| |6|Bystander expenses|4,500/-|| |7|Pain and suffering|10,000/-|| |8|Permanent disability and<br>loss of earning|61,200/-|(2,500x12x17<br>x12/100)| ||Total claim|1,19,200/-|| 15. Towards loss of earning the Tribunal awarded a sum of Rs.15,000/- at the rate of Rs.2,500/- per month for a period of six months. 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 is just and reasonable and therefore, the appellant is not entitled for enhancement of the compensation awarded by the Tribunal under this head. 16. The document marked as Ext.A4 is the wound certificate, in which the injuries sustained by the appellant are noted as skull fracture, lacerated injury on scalp, fracture both 9 MACA No.2234 OF 2007 bones of left leg, hagic contusion left post parietal region, several lacerated injuries, abrasions and pain all over the body. Ext.A5 is the discharge certificate issued from the Medical College Hospital, Alappuzha. The appellant was admitted in the hospital on 06.04.1999 and he was discharged on 06.05.1999. Ext.A6 is the disability certificate issued by Dr.Bindulal in which it is certified that the appellant has got permanent disability of 20%. Ext.A5 discharge summary would show that the appellant had undergone in-patient treatment for more than 30 days. 17. Ext.A7 series of medical bills are for an amount of Rs.2,825.14/-. As per Ext.A8 medical certificate, the appellant had undergone Ayurvedic treatment for a sum of Rs.26,858/-. The doctor, who had issued Ext.A8, was not examined. However, taking note of Exts.A7 and A8, the Tribunal awarded a sum of Rs.25,000/- towards medicine and treatment charges. The compensation awarded by the Tribunal under this head warrants no enhancement in this appeal. 18. Towards transportation to hospital, covered by Ext.A10 receipts, the Tribunal awarded a sum of Rs.1,500/-. Considering the nature of injuries sustained and the treatment 10 MACA No.2234 OF 2007 the appellant had undergone, the compensation awarded under the said head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 1999, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 20. Towards extra nourishment, the Tribunal awarded a sum of Rs.1,500/-. Considering the fact that the appellant had undergone hospitalisation for 30 days, this Court deem it appropriate to re-fix the compensation as Rs.3,000/- (100 x 30) under this head, resulting an additional compensation of **Rs.1,500/-** (3000 - 1500). 21. Towards bystander expenses, the Tribunal awarded a sum of Rs.4,500/- (150 x 30). Considering the nature of injuries sustained and the treatment that the appellant had undergone, the compensation awarded under the said head represents just and reasonable compensation, which requires no enhancement in this appeal. 22. Towards compensation for pain and suffering and 11 MACA No.2234 OF 2007 towards loss of amenities, the Tribunal awarded a sum of Rs.10,000/- each. 23. In Ext.A6 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 20%. The doctor, who issued Ext.A6 certificate, was examined as PW2. However, the Tribunal reduced the percentage of disability as 15%. The reasoning of the Tribunal, as contained in paragraph 7 of the award, reads thus; “In Ext.A6, the doctor has noticed the difficulties of the petitioner because of the injuries sustained by him in the accident. The doctor, who had issued Ext.A6 certificate was examined as PW2. The counsel for the third respondent submitted that of the disability of the petitioner assessed by PW2 is on a higher scale and disability of the petitioner has to be taken as 5%. Considering the nature of the injuries sustained by the petitioner, I find it just to consider the disability of the petitioner as 12%.” In the absence of any vitiating circumstances pointed out in the assessment of disability in Ext.A6, the Tribunal was not justified in interfering with the percentage of disability assessed in that certificate, especially when the same was marked through PW2 Doctor. Therefore, the appellant is 12 MACA No.2234 OF 2007 entitled for compensation under the heads permanent disability and loss of amenities, by taking the percentage of permanent disability as 20%, as assessed in A6. 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, 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 13 MACA No.2234 OF 2007 ## **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 25 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 and loss of earning power, the Tribunal awarded a sum of Rs.61,200/-, by taking the monthly income as Rs.2,500/-, applying the multiplier of 17 and percentage of disability as 15%. Applying the proper multiplier of 18 and the percentage of permanent disability as 20%, as assessed in Ext.A6 certificate, the compensation under the head permanent disability is re-fixed as Rs.1,08,000/- (2,500 x 12 x 18 x 14 MACA No.2234 OF 2007 20/100), resulting an additional compensation of **Rs.46,800/-** (1,08,000 - 61,200). 28. Towards loss of amenities, no amount was awarded by the Tribunal. Considering the nature of injuries sustained and the percentage of disability of 20% assessed in Ext.A6 disability certificate, the appellant is granted **Rs.20,000/-** towards loss of amenities. 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.68,550/-** (Rupees Sixty Eight Thousand Five Hundred and Fifty only) [1,500 + 250 + 46,800 + 20,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 637 days in filing this appeal, which was condoned by the order dated 23.07.2019 in C.M.Appl.No.2348 of 2007 on condition that the appellant will not be entitled for interest for the enhanced compensation, if any, granted in this appeal. The 3[rd] 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 MACA No.2234 OF 2007 15 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. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** **yd**