Sadiq Ali v. E.K. Muhammed Ali & ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **MACA.No.2557 OF 2008(S)** **AGAINST THE AWARD IN OP(MV)NO.2329/2004 DATED 11-06-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/PETITIONER :** **SADIQ ALI, S/O.ABDUL RAHIMAN, MULADAN HOUSE, ODAKKALAY, ASAMANNOOR, PERUMBAVOOR. BY ADV. SRI.K.K.MOHAMED RAVUF** ## **RESPONDENTS/RESPONDENTS:** - **1 E.K.MUHAMMED ALI, EDAYAPPURAM HOUSE, PANIPRA P.O., THRIKKARIYOOR,KOTHAMANGALAM 686691** - **2 ANIL KUMAR S/O. NARAYANAN, PARACKAL HOUSE, PARAKUNNAM P.O., KUTTAMANGALAM.** - **3 THE NEW INDIA ASSURANCE CO.LTD. MADAPPARAMBIL CHAMBERS,M.C.ROAD,, MUVATTUPUZHA.** **R BY ADV. SRI.P.K.BABU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2557 OF 2008(S)** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2329 of 2004 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, 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 04.11.2004, while he was driving a tempo van bearing registration No.KL-7/Z-5155. At the place of accident, the tempo van was hit by a bus bearing registration No.KL-02/4957 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 bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,43,000/-, under various heads, which was limited to Rs.2,00,000/for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed written statement admitting insurance **MACA.No.2557 OF 2008(S)** **3** coverage of the bus involved in the accident; however, denying the 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. The insurer contended that the accident occurred due to the rash and negligent driving of tempo van by the claimant himself. 3. Before the Tribunal, Exts.A1 to A13 were marked and PW1 was examined on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary evidence. 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 bus 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.1,25,880/-, together with interest at the rate of 7% per annum from the date of petition till 30.06.2007 and thereafter at the rate of 7.5% per annum till realisation and the insurer was **MACA.No.2557 OF 2008(S)** **4** directed to satisfy the award. 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 the learned Standing Counsel for the 3[rd] respondent insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 2[nd] respondent is 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 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 **MACA.No.2557 OF 2008(S)** **5** 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 equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; **MACA.No.2557 OF 2008(S)** **6** |The compensation claimed under<br>various heads|Amount allowed| |---|---| |Loss of earnings|7,500/-| |Treatment expenses|38,330/-| |Transportation expenses|1,000/-| |Damage to clothings|250/-| |Pain and suffering|20,000/-| |Loss of amenities|15,000/-| |Extra nourishment|1,000/-| |Attendant’s charges|2,000/-| |Disability|40,800/-| |**Total**|**1,25,880/-**| 11. The accident occurred on 04.11.2004. At the time of accident, the appellant was aged 24 years. The appellant claimed a monthly income of Rs.4,500/- as driver. 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.2,500/-, 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 **MACA.No.2557 OF 2008(S)** **7** 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. 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 **MACA.No.2557 OF 2008(S)** **8** 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. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2004, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court is of the view that Rs.4,500/- claimed by the appellant is not on the higher side, which is accepted as his notional monthly income for the purpose of assessing compensation under various heads. 15. Ext.A6 is the wound certificate issued from Specialist Hospital, Ernakulam; Ext.A7 is the discharge **MACA.No.2557 OF 2008(S)** **9** summary; and Exts.A8 and A9 are treatment certificates. As per the medical records, in the accident, the appellant sustained comminuted fracture shaft of right femur middle 3[rd] and undisplaced fracture patella – right. The discharge summary and treatment records would show that the appellant was referred from Sanjoe Hospital, Perumbavoor on 04.11.2004 and closed reamed interlocking nailing to right femur was done on 08.11.2004. Lacerated wound over the knee sutured and fracture to patella was treated conservatively by a knee brace and discharged on 13.11.2004. Suture removal was done on 23.11.2004 and he was reviewed on five occasions as out patient. Physiotherapy was also done from 27.12.2004 to 05.02.2005. Ext.A11 are the medical bills for a sum of Rs.38,324.50/-. Ext.A12 canteen bills and Ext.A13 taxi bills were also produced by the appellant. 16. Ext.A10 is the disability certificate issued by the doctor, who was examined as PW1, in which the permanent disability of the appellant/claimant is assessed as 16%. As per Ext.A10 the appellant is having stiffness of both right hip and knee joints and 1.5 cm shortening of right femur **MACA.No.2557 OF 2008(S)** **10** with implant in situ. He is having partial ankylosis of right hip joint and his movements are restricted. Since the disability certified by the doctor relates to the particular limb, the Tribunal after converting the same into whole body disability, took the permanent whole body disability as 8%. As evident from Ext.A10 disability certificate, the assessment of disability by PW1 was made with implant in situ. Considering the nature of disabilities noted in Ext.A10, the reasoning of the Tribunal in scaling down the percentage of permanent disability as 8% cannot be said to be arbitrary or illegal. 17. 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 including physiotherapy, 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/(4,500x6), resulting an additional **MACA.No.2557 OF 2008(S)** **11** compensation of **Rs.19,500/-** 27,000 – 7,500). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 14 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.5,000/-, resulting an additional compensation of **Rs.4,000/-** (5,000 – 1,000). 19. Towards attendant charges, the Tribunal awarded a sum of Rs.2,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 14 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head attendant expenses is re-fixed as Rs.2,100/- (150 x 14), resulting an additional compensation of **Rs.100/-** (2,100 – 2,000). The compensation under the head extra nourishment is re-fixed **MACA.No.2557 OF 2008(S)** **12** as Rs.1,400/- (100 x 14), resulting an additional compensation of **Rs.400/-** (1,400 – 1,000). 20. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2004, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 21. Towards treatment expenses, the Tribunal awarded a sum of Rs.38,330/-, covered by Ext.A11 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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. **MACA.No.2557 OF 2008(S)** **13** 23. 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 **5** for 66 to 70 years. ## 24. In **National Insurance Company Ltd. v.** **MACA.No.2557 OF 2008(S)** **14** **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. 25. In the instant case, as on the date of accident, the appellant was aged 24 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** . 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.40,800/- (2,500 x 12 x 17 x 8/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,500/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 8%, the compensation under the head permanent disability is refixed as Rs.77,760/- (4,500 x 12 x 18 x 8/100), resulting an additional compensation of **Rs.36,960/-** (77,760 – 40,800). **MACA.No.2557 OF 2008(S)** **15** 27. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and the permanent disability of 8% accepted 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. 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.61,460/-** (Rupees Sixty one thousand four hundred and sixty only) [19,500 + 4,000 + 100 + 400 + 500 + 36,960] 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 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 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 **MACA.No.2557 OF 2008(S)** **16** Memorandum No.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/19/12