Sadanandan v. P.M. Dinesan and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941** ## **MACA.No.621 OF 2011** **AGAINST THE AWARD IN OPMV 1660/2004 DATED 29.01.2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** **SADANANDAN, S/O.SANKARANKUTTY, EDUVAYIL HOUSE, THAIKULAM P.O., THRISSUR DISTRICT.** **BY ADV. SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS:** |**1**|**P.M.DINESAN, S/O.VELAYUDHAN,**| |---|---| ||**26/2646, AATHIRA MATTAMBI JETTY ROAD,**| ||**THEVARA P.O. COCHIN, ERNAKULAM DISTRICT-682013**| |**2**|**K.K.SUKUMARAN, S/O.KOPPUNNY**| ||**KOLLARA HOUSE, NATTIKA P.O.,**| ||**THRISSUR DISTRICT-680566**| |**3**|**THE NEW INDIA INSURANCE CO. LTD.**| ||**SN SHOPPING COMPLEX,, TEMPLE ROAD,**| ||**NATTIKA P.O., THRIPRAYAR-680566.**| **R3 BY ADV. SRI.P.MURALEEDHARAN, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.621 OF 2011** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1660 of 2004 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 13.04.2004, while he was riding a motorcycle bearing registration No.KL-8/D-3351. At the place of accident, the motorcycle was hit by a Maruthi car bearing registration No.KL-7/A-7848, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,44,500/-, under various heads, which was limited to Rs.1,50,000/-, for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; **MACA.No.621 OF 2011** 3 however, denying negligence alleged against the 2[nd] respondent driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant. Respondents have not chosen to adduce any oral or documentary evidence. 5. 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 the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.72,323/-, which was rounded off to Rs.72,400/-, together with interest at the rate of 8% per annum from the date of petition till realisation, with proportionate cost. The 3[rd] respondent insurer was directed to satisfy the award within 30 days from the date of award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. **MACA.No.621 OF 2011** 4 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. 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 Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals **MACA.No.621 OF 2011** 5 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; |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(Rs.)|Amount<br>awarded<br>(Rs.)|Basis vital details<br>in a nut shell| |---|---|---|---|---| |1|Loss of earning (Total)|36,000|7,500|| |2|Loss of earning(partial)|||| |3|Medical<br>and<br>miscellaneous expense|30,000|28,323|3623 + 24700| |4|Future treatment|10,000||| |5|Bystander expenses|3,000|3,000|| |6|Transportation expense|2,500|1,000|| |7|Extra nourishment|2,500|2,000|| |8|Damages to clothingetc|500|500|| |9|Pain and suffering|20,000|15,000|| |10|Disability<br>Loss of earning power<br>loss of amenities<br>disfiguration|70,000<br>50,000<br>20,000|15,000|2500x12x10x5/10<br>0| **MACA.No.621 OF 2011** 6 ||Total<br>Limited to|2,44,500<br>1,50,000|72,323|| |---|---|---|---|---| 12. The accident occurred on 13.04.2004. At the time of accident, the appellant was aged 51 years. The appellant claimed a monthly income of Rs.6,000/- as Tailor. The appellant has not chosen to mount the box to prove his monthly income. 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 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 **MACA.No.621 OF 2011** 7 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 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. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2004, and taking note of **MACA.No.621 OF 2011** 8 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.4,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A6 is the accident register cum wound certificate and Ext.A7 is the discharge summary. As evident from medical records, in the accident, the appellant sustained abrasion on right forearm and fracture of both bones of right leg. He was treated by interlocking nailing. He was admitted at Karuna Hospital, Vatanappilly on 13.04.2004 and discharged on 20.04.2004. He had undergone reviews on 27.04.2004, 26.05.2004, 28.07.2004 and finally on 25.08.2004. As per Exts.A9 and A10 the National Insurance Company has given cheque for Rs.24,700/- in final settlement of the Personal Accident Medical Benefit Insurance policy. Ext.A12 series are photocopies of medical bills submitted for availing the claim. The appellant filed I.A.No.4456 of 2008. In that interlocutory application, the Deputy Manager of National Insurance Company has filed an affidavit stating that the medical bills are not available with them. However, it was affirmed that an amount of Rs.24,700/- was paid to the appellant in settlement of his claim **MACA.No.621 OF 2011** 9 under policy No.570700/47/2001/3800475. Ext.11 series of medical bills are for a sum of Rs.3,623/-. 17. Ext.A8 is the disability certificate issued by Dr.R.Vijayakmar, Associate Professor and Orthopaedic Surgeon of Medical College Hospital, Thrissur, wherein permanent disability on account of the injuries sustained in the accident is assessed as 12%. Ext.A8 disability certificate was not proved by examining the doctor. Therefore, the Tribunal took the percentage of disability as 5%. 18. The disabilities noted in Ext.A8 are partial ankylosis of right knee with limitation of knee flexion beyond 90[0] form 180[0] position with moderate subjective pain on further flexion and difficulty in squatting, hypertrophic callus over fracture site of tibia and fibula with subcutaneously felt locking screw of tibia and tenderness over the fracture site, partial ankylosis of right ankle with gross limitation of right ankle dorsiflexion (100 possible from neutral) with pain over the ankle joint. Since implant is remaining inside tibia and he may have to undergo further surgery for removal of implant in future. Tenderness of screw head present. As evident from Ext.A8, the assessment of disability by the doctor was applying combination formula of a+b (90-a/90). Considering **MACA.No.621 OF 2011** 10 the nature of disabilities noted in Ext.A8 disability certificate, this Court deem it appropriate to take the percentage of disability as 7% for the purpose of awarding compensation under various heads. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.7,500/-, at the rate of Rs.2,500/- 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 5 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.22,500/- (4,500 x 5), resulting an additional compensation of **Rs.15,000/-** (22,500 – 7,500). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 8 days. 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, as borne out from medical records, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** **MACA.No.621 OF 2011** 11 (1,500 -1,000). 21. Towards bystander expenses the Tribunal awarded a sum of Rs.3,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 8 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 these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 22. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2004, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). 23. Towards medical expenses, the Tribunal awarded a sum of Rs.28,323/-, covered by Exts.A11 series of medical bills for Rs.3,623/- and Ext.A12 series of medical bills for Rs.24,700/-. Since the appellant had already received Rs.24,700/- covered by Ext.A12 series of medical bills by way of settlement of his claim under Personal Accident Medical Benefit Insurance Policy **MACA.No.621 OF 2011** 12 No.570700/47/2001/3800475, the compensation under the head medical expenses is scaled down to Rs.3,623/- resulting an **excess payment** of **Rs.24,700/-** (28,323 – 3,623). 24. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. 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. 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], **MACA.No.621 OF 2011** 13 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. 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 51 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 10 applied by the Tribunal is not correct and the proper multiplier to be applied is **11** . 28. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.15,000/- (2,500 x 12 x 10 x **MACA.No.621 OF 2011** 14 5/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,500/-, applying the multiplier of 11 applicable to the age group of the appellant and the percentage of permanent disability as 7%, the compensation under the head permanent disability is re-fixed as Rs.41,580/- (4,500 x 12 x 11 x 7/100), resulting an additional compensation of **Rs.26,580/-** (41,580 – 15,000). 29. Towards loss of amenities the Tribunal awarded no compensation. The permanent disability of the appellant, on account of the injuries sustained in the accident, is taken as 7%. Considering the nature of injuries sustained and the permanent disability of 7%, the appellant is granted **Rs.10,000/-** under the head loss of amenities. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.27,880/-** (Rupees twenty seven thousand eight hundred and eighty only) [(15,000 + 500 + 500 + 26,580 + 10,000) – 24,700] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. 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 **MACA.No.621 OF 2011** **==> picture [13 x 7] intentionally omitted <==** 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 the amount to the appellant/claimant shall be 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. Appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN JUDGE** JV